Reid v. State

361 Ga.App. 617

865 S.E.2d 245

REID

v.The STATE.

A21A0882

Court of Appeals of Georgia.

October 26, 2021

Crystal Harmon Bice, for Appellant.

Tasha Monique Mosley, Karen Smith Barbour, for Appellee.

Pipkin, Judge.

A Clayton County jury found Ryan Reid guilty of enticing a child for indecent purposes and aggravated child molestation.¹ Following the trial court's grant of his motion for an out-of-time appeal, Reid challenges his convictions, arguing that the evidence was insufficient, that the trial court erred by refusing to charge the jury on the defense of alibi, and that trial counsel was ineffective in two respects. We affirm.

1. Reid first contends that the evidence adduced at trial was insufficient to sustain his convictions. When we consider the sufficiency of evidence, the defendant "no longer enjoys a presumption of innocence," (Citation and punctuation omitted.) Miller v. State , 359 Ga. App. 380, 380 (1), 857 S.E.2d 830 (2021), and "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt," (Emphasis omitted.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Critically, "[o]ur review leaves to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be made from the evidence." Yarn v. State , 305 Ga. 421, 423 (2), 826 S.E.2d 1 (2019).

Viewed in the appropriate light, the evidence presented at trial showed that Reid was best friends with the father of the victim, T.T., and frequently visited the family's home. T.T. testified that, when she was eleven years old, Reid began making her touch his penis and that he made her perform oral sex on him on multiple occasions. The abuse generally occurred when the rest of the family was asleep.

On one occasion in 2012, when T.T. was twelve years old, Reid accompanied the family to the home of T.T.’s grandfather in Clayton County, where Reid, T.T., and T.T.’s father and brother, among other people, spent the night. T.T. testified that, around 3:00 a.m., she was asleep on a couch in the living room and that her brother and father were asleep in the same room. Reid was also in the room on the floor next to T.T.; T.T. testified that Reid "told [her] to come down" from the couch to the floor with him and, when she did, instructed her to perform oral sex on him. T.T. complied with Reid's instructions.

T.T.’s grandfather testified that he also awoke around 3:00 a.m. that night and went to the kitchen for a drink. When he walked past the living room, he looked in and observed T.T.’s father asleep on a couch and Reid asleep in a chair with T.T. in his lap and his hand on her thigh at her waistline. The grandfather instructed T.T. to go sleep in a bedroom with his other grandchildren, explaining that he did so "[b]ecause based on her age and by [her] being a female, it's inappropriate for her to be in his lap at that late at night." No one else was awake at the time.

T.T. testified that the abuse continued until approximately 2014; she explained that she did not disclose the abuse immediately because she was afraid her father would kill Reid and go to prison as a result. However, T.T.’s mother became concerned when T.T. began experiencing various symptoms, including a racing pulse, and took her to the hospital for testing. While at the hospital, T.T.’s mother noticed T.T.’s relieved reaction when the doctor informed T.T. that she was not pregnant and did not have any sexually transmitted diseases. T.T.’s mother questioned her about her reaction, at which point T.T. disclosed the abuse; T.T.’s mother then informed T.T.’s father about the abuse. T.T.’s father confronted Reid about the abuse, and Reid admitted to having "sexual contact" with T.T.

On appeal, Reid generally challenges the sufficiency of the evidence as to both his convictions on the ground that T.T.’s testimony was inconsistent and uncorroborated. Reid also contends that the evidence presented at trial failed to establish the asportation element required for enticing a child for indecent purposes. We address these arguments in turn.

Reid first asserts that the evidence was insufficient to support his convictions because T.T.’s account of the abuse was, in his estimation, uncorroborated, "impractical," and inconsistent in certain respects with the testimony of other witnesses for the State. Reid's arguments challenge T.T.’s credibility as a witness and the proper weight to afford her testimony, but this Court "does not reweigh evidence or resolve conflicts in testimony." (Citation and punctuation omitted.) Cox v. State , 306 Ga. 736, 736 (1), 832 S.E.2d 354 (2019). Instead, witness credibility is for the jury's determination. See Yarn , 305 Ga. at 423 (2), 826 S.E.2d 1. See also OCGA § 24-14-8 ("The testimony of a single witness is generally sufficient to establish a fact."); Miller , 359 Ga. App. at 383, 857 S.E.2d 830 (victim's testimony alone was sufficient to support convictions for enticing a child for indecent purposes and child molestation, among other crimes). Therefore, this contention is without merit.

Turning to Reid's specific challenge to the evidence underlying his conviction for enticing a child for indecent purposes, he asserts that T.T.’s movement from the couch to the floor at his encouragement was insufficient to show asportation because T.T. "moved by her own volition" and because her movement was "minimal in duration" and did not "hide or separate" her, make commission of the abuse "any easier," or "lessen the risk of detection." These arguments are unavailing.

Under OCGA § 16-6-5 (a) "a person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts." The statute has been held to include the element of "asportation," and our Supreme Court has held that this element is satisfied whether the "taking" involves physical force, enticement, or persuasion. Further, any asportation, however slight, is sufficient to show the taking element of enticing a child for indecent purposes.

(Emphasis supplied; citations, footnote, and punctuation omitted.) Whorton v. State , 318 Ga. App. 885, 887 (1) (a), 735 S.E.2d 7 (2012). Contrary to Reid's argument, it is well settled that asportation need not be accomplished by force. See Moore v. State , 319 Ga. App. 696, 698-699 (1), 738 S.E.2d 140 (2013) ("[W]hile [asportation] can be the result of physical force, it also can be the result of mere persuasion, enticement, or temptation."). Furthermore, a showing of asportation for purposes of OCGA § 16-6-5 (a) is not dependent upon the duration of the child's movement. See Tudor v. State , 320 Ga. App. 487, 492-493 (2), 740 S.E.2d 231 (2013) (rejecting argument that child's movement of short duration was insufficient to establish asportation). Nor does the statutory language mandate a showing that the movement was done in order to hide the subsequent abuse or to make the victim "easier" to abuse; instead, it requires only that the movement have been accomplished "for the purpose of child molestation or indecent acts." OCGA § 16-6-5 (a).

Here, evidence that Reid instructed T.T. to move from the couch to the floor so that he could molest her established the slight movement necessary to prove asportation. See Hicks v. State , 254 Ga. App. 814, 816 (3), 563 S.E.2d 897 (2002) (victim's testimony that defendant "kept on trying to pull [her] towards him" satisfied asportation element); Cimildoro v. State , 259 Ga. 788, 789 (1), 387 S.E.2d 335 (1990) (asportation shown where defendant was in a tool shed with the victim and he persuaded her to lie down on a board so that he could molest her). "And [Reid's] actions were sufficient to establish that he acted with the requisite intent at the time he enticed" T.T. to move from the couch to the floor. Allison v. State , 356 Ga. App. 256, 263 (2) (b), 846 S.E.2d 222 (2020) ("[T]he evidence authorized the jury to find that [defendant] enticed the ... victim to her mother's bedroom with the intention to engage in child molestation as established by his subsequent act of placing the victim's hand on his penis.").

Having reviewed the record, we conclude that the evidence recounted above was sufficient to authorize a rational jury to find Reid guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson , 443 U. S. at 319 (III) (B), 99 S.Ct. 2781 ; Becton v. State , 358 Ga. App. 321, 327 (3) (a), 853 S.E.2d 125 (2020) (evidence sufficient to support conviction for aggravated child molestation where victim testified that she engaged in oral sex with defendant). Accordingly, this enumeration presents no cause for reversal.

2. Reid next argues that the trial court committed reversible error by denying his request to charge the jury on the defense of alibi. The indictment in this case alleged that the crimes of which Reid was convicted occurred "between the 1st day of June, 2012, and the 30th day of June, 2012, the exact date of the offense being unknown to the Grand Jury." At trial, Reid presented the testimony of his brother in an attempt to establish an...