Shaum v. State

355 Ga.App. 513

844 S.E.2d 863

SHAUM

v.The STATE.

A20A0228

Court of Appeals of Georgia.

June 15, 2020

Robin Ruben Flores, for Appellant.

Herbert E. Franklin, District Attorney, for Appellee.

Mercier, Judge.

A jury found Robert Allen Shaum guilty of criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes. Following the denial of his motion for new trial, Shaum appeals, asserting several claims of error. We discern no reversible error and affirm.

Shaum was initially charged with child molestation, tampering with evidence, criminal attempt to commit child molestation, and criminal attempt to entice a child for indecent purposes. He was tried and acquitted of child molestation, and a mistrial was declared as to the remaining counts after the jury was unable to reach a verdict. The tampering with evidence count was later nolle prossed, and the State retried Shaum on the criminal attempt counts about a week after the mistrial was declared.

Viewing the evidence presented at Shaum's second trial in favor of the verdict, the record reveals that Shaum's 10-year-old granddaughter M. N. went to visit him and his wife for the summer. At the end of the summer, M. N.’s mother (Shaum's daughter) and her mother's boyfriend moved into Shaum's home. Due to the limited space in the home, M. N. began to sleep in the bedroom with Shaum and his wife. M. N. had a bed, and her grandparents had a bed.

After dinner one night, Shaum handed M. N. a typed, folded note while she was in the kitchen.

The note read:

[M. N.]; i dont know why i feel left out of your love. maybe its the age but that has nothing to do with it. i look at you as a young lady, not a little kid. you dont know how much i love you. if you would only give it a chance. oh i know it wont be a life time but it wiuld [sic] be a gift to me. your love to me. i just want to lay in bed beside you and carress your body to mine. just to be able to fill your love would be fantastic. it would be moments that you couldnt explain. let me feel your body with your love for me. i swear that ill never hurt you. [M. N.], i love you so much but you seem to make a joke of everything. like you dont care at all. [M. N.], just tell me or show me. no one will ever know except you and me, i promise.

M. N. went to her bed to read the note. She then placed the note in her mother's room instead of giving it to her because she did not want to "freak [her mother] out." M. N. explained at trial that the note made her feel "weird," and that Shaum had given her other typed notes that summer, but that she did not read them and threw them away. In M. N.’s forensic interview conducted shortly after the incident, in addition to making statements concerning the note, M. N. stated that on one occasion that summer, Shaum "grabbed" and "squeezed" her buttocks. She explained that when it happened, she "just kept walking like really fast because I wanted him to let go. It was like the weirdest feeling ever."

The State also presented evidence that Shaum had engaged in sex acts with his two daughters, M. N.’s mother and aunt, when they were children. M. N.’s aunt testified that Shaum started having sexual contact with her when she was about seven or eight years old that escalated to sexual intercourse when she was fifteen years old, and that during that time Shaum often handed her handwritten notes telling her to do things, such as "come to my room later." The aunt explained that Shaum fathered two of her children. Following the presentation of this evidence, the jury found Shaum guilty on both counts. The trial court denied his motion for new trial, and this appeal followed.

1. Shaum argues that the evidence was insufficient to sustain his convictions and that the trial court erred in denying his motion for a directed verdict. He argues that there was no medical evidence or outcry, M. N.’s testimony was tainted by a conversation she overheard and bolstered by the admission of her forensic interview, there was evidence that others had access to a computer for typing the note, and there was no evidence beyond the note that he took a substantial step toward completion of the underlying crimes.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia .¹

Washington v. State , 251 Ga. App. 206, 206-207 (1), 553 S.E.2d 855 (2001).

Shaum was charged with criminal attempt to commit both child molestation and enticing a child for indecent purposes. OCGA § 16-4-1 provides that "[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." Criminal attempt "consists of three elements: first, the intent to commit the crime; second, the performance of some overt act toward[ ] the commission of the crime; and third, a failure to consummate its commission." Martin-Argaw v. State , 343 Ga. App. 864, 864-865 (1), 806 S.E.2d 247 (2017) (citations and punctuation omitted). Therefore, the State had to show that Shaum had the intent to commit the crimes and that he took a substantial step toward doing "any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or [himself]," OCGA § 16-6-4 (a) (1), and a substantial step toward "solicit[ing], entic[ing], or tak[ing] any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts." OCGA § 16-6-5 (a).

There was evidence presented that Shaum had sexual contact and/or sexual intercourse with his daughters when they were children, with one of the daughters giving birth to two of his children, and evidence that he previously touched M. N. inappropriately. Shaum gave M. N. a note while she was in the kitchen in which he lamented the age difference between them, expressed that he wanted to lay in bed with her and caress her body, and requested that she let him "feel [her] body" as a "gift" to him and "show [him]" she cares. This evidence was sufficient to establish that Shaum had the intent to commit the crimes and that he performed a substantial step toward an indecent act with M. N. (child molestation) and a substantial step toward persuading her to go bed with him for the purpose of an indecent act (enticing a child) as charged in the indictment, neither of which was consummated. See Lopez v. State , 258 Ga. App. 92, 94-95, 572 S.E.2d 736 (2002) (evidence sufficient to establish attempt to commit child molestation where defendant visited child, offered her money, stuck his hand in the front pocket of her pants, and gave her a note that expressly stated he wanted to "make love" to her); Wittschen v. State , 259 Ga. 448, 449 (1), 383 S.E.2d 885 (1989) (evidence that defendant asked girls if they wanted some money and when they responded affirmatively, he asked them to let him stick his hand down their pants, was sufficient to sustain conviction for attempt to commit child molestation). See also Tudor v. State , 320 Ga. App. 487, 491-493 (2), 740 S.E.2d 231 (2013) (slight movement of the victim satisfies the asportation element of enticing a child for indecent purposes; movement from living room sofa to kitchen was sufficient asportation for enticement); compare Heard v. State , 317 Ga. App. 663, 666, 731 S.E.2d 124 (2012) (no evidence that defendant attempted to persuade victim to go to another place).

2. Shaum contends that the trial court improperly allowed the State to present evidence that bolstered M. N.’s credibility. He argues that the admission of the forensic interview (compounded by allowing the jury to have the transcript of the interview), went beyond establishing M. N.’s ability to distinguish between the truth and falsehood. However, Shaum did not object to the admission of the forensic interview on this ground at trial.² "Where an appellant fails to make an objection to the admission of evidence in the trial court, the claim of error is not preserved for ordinary appellate review." Moore v. State , 305 Ga. 251, 255 (2) (b), 824 S.E.2d 377 (2019). See OCGA § 24-1-103 (a) (1). We therefore review Shaum's claim only for plain error. See OCGA § 24-1-103 (d).

The first step of the plain error analysis requires us to consider whether Shaum has shown the existence of an error in the admission of the forensic interview. Moore , supra. Pursuant to Georgia's Child Hearsay Statute, a statement made by a child younger than 16 years old describing an act of sexual contact

. . . performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if ... such child testifies at the trial, ... and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

OCGA § 24-8-820 (a). The statute "actually contemplates testimony from both the child and those witnessing the child's later reaction, even if the hearsay may be bolstering. " Jackson v. State , 344 Ga. App. 618, 621 (2) (a), 810 S.E.2d 672 (2018) (citation and punctuation omitted; emphasis supplied). In her forensic interview, then 11-year-old M. N. described Shaum's act of squeezing her buttocks, which made her feel "weird," and his act of giving her a note in which ...