Tarlton v. State

1

TARLTON v. THE STATE.

TARLTON v. THE STATE.

Nos. A23A0347, A23A0972

Court of Appeals of Georgia, Fourth Division

June 21, 2023

RICKMAN, C. J., DILLARD, P. J., and PIPKIN, J.

PIPKIN, Judge

Jeramiah H. Tarlton ("Jeremiah") and Maggie Ann Tarlton ("Maggie") (collectively "Appellants") were tried together before a jury and found guilty of child molestation and sexual battery. They filed separate motions for new trial and, following the denial of their motions separate appeals to this Court. We consolidated their appeals for review and now affirm in both cases.

The evidence presented at trial shows that the victims in this case are the Appellants' daughter, E. T. and their son J. T., who were three and four years old, respectively, in April 2012. Around that time, Cynthia Fuller, a relative of the Mother's, was visiting from Montana. One day during her visit, while she was babysitting J. T., she entered the room where he was watching cartoons and saw that he had pulled down his shorts and underwear and was "jacking off." Fuller, who was the mother of two older boys, testified that she did not think this was normal behavior for a four year old, so she asked J. T. if he had seen somebody else do that. J. T. told her that he had, and when she asked him who, Fuller said he gave her three names -"Daddy," "David" and "Aaron."^[1]

Family members contacted the Department of Family and Children Services ("DFACS") about J. T.'s statements. A DFACS worker testified that she meet with J. T., who told her that his father had touched his private area. The worker also spoke to E. T., who said that her father had touched her and pointed to her private area.

Carol Wollifred, Executive Director and forensic interviewer for a local Child Advocacy Center, testified that she conducted a forensic interview with J. T. and E. T.; this interview was recorded and played for the jury. During the interview, J. T. said that both his mother and his father touched his "pee bug" and that his father touched his sister's "toot toot" and "booty." J. T. said that these acts happened while they all had their clothes off. The interviewer gave him anatomically correct dolls to demonstrate his parents' actions, and he undressed them and moved his fingers in and out of the anal opening of both the boy and girl doll and the vaginal opening of the girl doll; he also moved the boy doll's penis with his hand and made a masturbation motion on the adult male doll. The forensic interviewer testified that his behavior with the dolls was not normal behavior for a four year old. J. T. said that these acts took place at his "mommy's house" and that his parents were not bathing or cleaning him at the time they did this. He also said that his parents showed them movies with little girls and boys who were naked. J. T. also said that it felt good when it happened but that he did not like it and that his parents told him not to talk about what they did to him. The forensic interviewer also had to reassure J. T. that his mother could not hear him during the interview.

E. T. was also interviewed. Although E. T., who was only three years old at the time of the interview, was reluctant to talk about the things her parents had done to her, she did indicate to the interviewer that she had been touched on both her "toot toot" and "booty."

Appellants both testified at trial, and denied that they committed any acts of molestation or sexual battery against their children.

Case No. A23A0347

1. Jeremiah first argues that he is entitled to a new trial because the State failed to prove venue. See OCGA § 17-2-2 (a) (In general, crimes must be tried in the county where they are committed).

On appeal, the appellate court reviews a challenge to the sufficiency of the venue evidence just like it reviews a challenge to the evidence of guilt: we view the evidence of venue in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

(Citation omitted.) Cwik v. State, 360 Ga.App. 525, 525-526 (859 S.E.2d 142) (2021). Concerning proof of venue, our appellate courts have explained that

[v]enue is a jurisdictional fact that the State must prove beyond a reasonable doubt in every criminal case. The State may meet its burden at trial using either direct or circumstantial evidence, and the determination of whether venue has been established is an issue soundly within the province of the jury.

(Citation and punctuation omitted.) Bowman v. State, 363 Ga.App. 711, 715 (2) (872 S.E.2d 485) (2022).

Here, the crimes were alleged to have occurred in Atkinson County. J. T. stated during his recorded forensic interview that the crimes occurred at his "mommy's house." Fuller testified that she went to visit the children and her "Aunt Kay" at the house where they lived in Pearson, and the investigating officer said that Pearson is located in Atkinson County. Maggie confirmed that the children, Jeremiah, her mother, whose first name is Kay, and others lived in the household with her in April 2012 when the crimes were alleged to have occurred, and Jeremiah testified at trial in 2014 that he had lived in Atkinson County for almost five years, which was during the relevant time frame when he was living in the house with the children. Viewed in the light most favorable to the jury's verdict, this evidence was sufficient to establish venue beyond a reasonable doubt. See, e.g., Cwik, 360 Ga.App. at 527 (1).

2. Jeremiah also challenges the sufficiency of the evidence to support his convictions.^[2] As set out above, the State introduced evidence that J. T. and E. T. made statements to others about the acts perpetrated against them, and they talked about and demonstrated the acts of molestation during the forensic interview. Jeremiah points out, however, that the children made "outlandish claims" during the forensic interview that even the forensic interviewer found incredible^[3] and that there was no physical evidence of the crimes. But as we have explained many times before, "the testimony of a single witness is generally sufficient to establish a fact[,] OCGA § 2414-8," including the elements of child molestation, and physical or other corroborating evidence is not required. Bland v. State, 363 Ga.App. 268, 269 (1) (870 S.E.2d 823) (2022). Further, it was for the jury to resolve any conflicts or contradictions in the testimony, and the jury was likewise authorized to accept or reject any portion of the victims' statements. See Maxwell v. State, 348 Ga.App. 870, 873 (1) (825 S.E.2d 420) (2019). The evidence set out above, as well as other evidence presented at trial, was sufficient to authorize Jeremiah's convictions.

Case No. A23A0972

3. Maggie argues that the trial court violated her right to be present at trial when the trial judge had a discussion with the parties' counsel about the jury's request to watch a replay of the forensic interview.

Maggie's trial attorney testified about this issue at the motion for new trial hearing. Trial counsel testified that, while the jury was out for deliberations, the trial judge approached the parties' counsel in the hallway outside the judge's chambers and informed them that the jury had requested to rewatch the forensic video without anyone else being present. The trial court asked Appellants' counsel if they objected, and Maggie's trial counsel testified that she "agreed to do that." The trial transcript reflects that the trial court then cleared the courtroom and the video was replayed for the jury. After the jury watched the video, they then left the courtroom to resume deliberations.

In her motion for new trial and at the hearing on the motion, Maggie argued that allowing the jury to watch the replay of the video violated the continuing witness rule. However, for the first time on appeal,^[4] Maggie argues her right to be present was violated when the trial court had a discussion with counsel and a decision was made concerning replaying the video when she was not present. As she acknowledges on appeal, the question is whether the discussion that was held in her absence concerning replaying the video should be considered a critical stage in the criminal proceedings. We find that it is not.

"It is well settled that the Georgia Constitution guarantees a criminal defendant the right to be present, and see and hear all the proceedings which are had against him on the trial before the Court." (Citation and punctuation omitted.) Prickett v. State, 314 Ga. 435,441 (2) (877 S.E.2d 573) (2022). This right "attaches at any stage of a criminal proceeding that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure. But the right does not extend to situations where the defendant's presence would be useless, or the benefit but a shadow." (Citation and punctuation omitted.) Carter v. State, 308 Ga. 589, 596 (3) (842 S.E.2d 831) (2020). Accordingly, as our Supreme Court has explained, "a defendant who is represented by counsel need not be present for portions of trial that involve questions of law and consist of essentially legal argument about which the defendant presumably has no knowledge." (Citation and punctuation omitted.) Id. This includes "a conference held by a trial court with defense and prosecuting counsel to discuss a response to a deliberating jury's substantive inquiry." Leeks v. State, 296 Ga. 515, 519 (3) (769 S.E.2d 296) (2015). Here, the trial judge brought the jury's request to replay the forensic interview to the attention of the parties' counsel and inquired whether they objected to the jury's request. Whether...