Watkins v. the State

SECOND DIVISION
ANDREWS, P. J.,
BRANCH and PETERSON, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 10, 2016

In the Court of Appeals of Georgia
A15A2411. WATKINS v. THE STATE.

ANDREWS, Presiding Judge.

Following a jury trial, the Superior Court of Bibb County entered judgments

of conviction against Winston Watkins for one count of aggravated child molestation

(OCGA § 16-6-4 (c)) and three counts of child molestation (OCGA § 16-6-4 (a) (1)).

The trial court denied Watkins’ motion for new trial as amended. Watkins appeals,

raising a multitude of errors. For the reasons that follow, we affirm in part, vacate in

part, and remand for resentencing on Watkins’ convictions for child molestation.

1. First, Watkins argues that the State failed to prove his guilt beyond a

reasonable doubt.1 We do not agree.

1
In his enumeration, Watkins specifically asserts that the State did not “prove
[Watkins] guilty of any crime beyond a reasonable doubt.” However, the argument
in support of the enumeration purports to allege the “general grounds” as well. See
 On appeal from a criminal conviction, the evidence must be viewed in
the light most favorable to the verdict, and the appellant no longer
enjoys the presumption of innocence; 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, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979)]. As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the State’s case,
the jury’s verdict will be upheld.

Bradford v. State, 327 Ga. App. 621 (760 SE2d 630) (2014). Relevant to this case,

a person commits aggravated child molestation “when such person commits an

offense of child molestation which act physically injures the child or involves an act

of sodomy.” OCGA § 16-6-4 (c). See also OCGA § 16-6-2 (a) (1). In addition, child

molestation occurs when a person “[d]oes any immoral or indecent act to or in the

OCGA §§ 5-5-20, 5-5-21. These are separate legal arguments with different standards
for consideration. See Copeland v. State, 327 Ga. App. 520, 524, 525 (2) (759 SE2d
593) (2014). Furthermore, “[t]he decision to grant a new trial on grounds that the
verdict is strongly against the evidence is one that is solely in the discretion of the
trial court.” (Citations and punctuation omitted). Batten v. State, 295 Ga. 442, 444 (1)
(761 SE2d 70) (2014) (citing Willis v. State, 263 Ga. 597 (1) (436 SE2d 204) (1993)).
Accordingly, we will only “review the case under the standard espoused in Jackson
v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979) to determine if the
evidence, when viewed in the light most favorable to the prosecution, supports the
verdict.” Id.

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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 the person.” OCGA § 16-6-4 (a) (1).

So viewed, evidence revealed that the ten-year-old female victim first met

Watkins when he moved into her neighborhood on or about June 29, 2011. The two

spoke when they saw each other, and the victim would visit Watkins at his residence.

A neighbor also reported seeing Watkins kissing the victim on his front porch. In

addition, Watkins’ roommate claimed that the victim was at Watkins’ residence

“more than what she supposed to be” and that her constant presence “don’t look too

good.”

At first, Watkins would hug the victim when the two met. However, Watkins

began to touch the victim’s breasts after hugging. He also began to touch her “private

part area” both over and under her clothing. In addition, Watkins kissed the victim’s

“private area” as she lay naked on Watkins’ bed and showed the victim his penis.

Watkins also asked the victim to engage in sexual intercourse, but the victim

declined. The touching happened on more than one occasion and occurred in

Watkins’ bedroom, which the victim was later able to describe to investigators.

The victim was scared to tell her mother about the abuse because Watkins told

the victim “he’s gonna tell my mom I let him do it.” Ultimately, the victim asked her

3
mother to call police on January 1, 2012, and the victim disclosed the abuse when her

mother asked her why she wanted to talk to police. For his part, Watkins denied that

the victim had ever been inside his residence and that he had ever touched the victim

inappropriately.

In sum, we conclude that the evidence adduced at trial was sufficient for a

rational trier of fact to find Watkins guilty beyond a reasonable doubt of the crimes

for which he was convicted, including aggravated child molestation (for placing his

mouth on the victim’s vagina (Count 1)) and child molestation (for touching the

victim’s vagina (Count 2) and breasts (Count 3) and exposing himself to the victim

(Count 4)). Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979);

Bradford, 327 Ga. App. at 621; Malone v. State, 277 Ga. App. 694, 696 (1) (627

SE2d 378) (2006) (testimony of a child molestation victim alone sufficient to

authorize jury to find defendant guilty).

2. Next, Watkins contends the trial court erred in denying his plea in abatement

because the indictment did not allege the date of Watkins’ crimes with “sufficient

certainty.” Specifically, Watkins appears to argue that the State could have alleged

the dates of Watkins’ crimes more specifically than the June 30, 2011 to January 1,

2012 time frame contained in the indictment. We are not persuaded.

4
 OCGA § 17-7-54 provides that an indictment must state with “sufficient

certainty” the date of the alleged offense. See also State v. Layman, 279 Ga. 340, 341

(613 SE2d 639) (2005).

Generally, an indictment which fails to allege a specific date on which
the crime was committed is not perfect in form and is subject to a timely
special demurrer. However, where the State can show that the evidence
does not permit it to allege a specific date on which the offense
occurred, the State is permitted to allege that the crime occurred between
two particular dates.

O’Rourke v. State, 327 Ga. App. 628, 631-632 (2) (760 SE2d 636) (2014) (citing

Layman, 279 Ga. at 340-341); Blanton v. State, 324 Ga. App. 610, 614 (2) (751 SE2d

431) (2013) (same). To that end, “[i]n meeting its burden of showing that it is unable

either to identify a specific date on which an offense occurred or to narrow the range

of possible dates, the State is required to present some evidence and may not rely

solely upon argument by counsel or mere speculation.” Blanton, 324 Ga. App. at 615

(2).

Here, the State satisfied its burden. In each count of the indictment, the State

alleged that Watkins committed the crimes charged “between the 30th day of June,

2011, and the 1st day of January, 2012, the exact date of the offense being unknown

5
to members of the Grand Jury. . . .” In response, Watkins filed a plea in abatement

arguing that “the indictment does not allege the dates of the alleged crimes with

enough specificity and does not list the dates of the alleged crimes with sufficient

particularity.” The trial court conducted an evidentiary hearing, during which the

State presented testimony that Watkins moved into a residence in the victim’s

neighborhood on June 30, 2011; that the victim disclosed to her mother, on January

1, 2012, that Watkins had been molesting her; that the molestation began after

Watkins moved to the neighborhood; and that the victim had been unable to articulate

a more specific time frame for the molestation. In addition, the trial court reviewed

a recording of the victim’s forensic interview. At the conclusion of the hearing, the

trial court observed that “[t]here is nothing that I have seen in the interview or heard

from the witnesses that leads me to believe [the State] could have done anything other

than what they’ve done.” As a result, the trial court denied Watkins’ plea in

abatement.

The evidence produced during the hearing, particularly the details concerning

the date of Watkins’ arrival in the victim’s neighborhood, that the molestation began

thereafter, and the date upon which the victim disclosed the molestation, confirmed

that the State was “unable either to identify a specific date on which an offense

6
occurred or to narrow the range of possible dates.” See Blanton, 324 Ga. App. at 615-

617 (2) (a). See also O’Rourke, 327 Ga. App. at 632 (2). Accordingly, we conclude

that the trial court did not err in denying Watkins’ plea in abatement.

3. In several enumerations, Watkins argues that the trial court erroneously

declined to give several proposed jury instructions on a variety of issues, including

accidental touching and certain lesser included offenses. Again, we find no error.

It is axiomatic that “[a] requested charge must be legal, apt, and precisely

adjusted to some principle involved in the case and be authorized by the evidence. If

any portion of the request to charge fails in these requirements, denial of the request

is proper.” McLean v. State, 291 Ga. 873, 877 (5) (a) (738 SE2d 267) (2012) (citing

Stokes v. State, 281 Ga. 875, 877 (3) (644 SE2d 116) (2007)). We examine each

proposed instruction in turn.

(a) Jury Charge No. 15. First, Watkins requested a jury instruction on

accidental touching. However, to support an instruction on accident, “the defendant

must admit to having committed an act that would constitute the crime charged.”

Haynes v. State, 281 Ga. App. 81, 82 (2) (b) (635 SE2d 370) (2006). Therefore,”[t]he

essence of the defense of accident is that the defendant’s act is not intentional.” Id.

at 82-83 (2) (b); Metts v. State, 210 Ga. App. 197, 198 (2) (435 SE2d 525) (1993). In

7
this case, Watkins denied any touching occurred, accidental or otherwise.

Accordingly, “[t]he theory of the case as submitted to the jury was that the

molestation either happened or it did not — not that it happened by accident.”

Haynes, 281 Ga. App. at 83 (2) (b). Because Watkins’ requested charge on accident

“was not adjusted to the evidence, the trial court did not err in failing to give the

requested charge.” Id. Compare Metts, 210 Ga. App. at 198 (2) (accident charge

required where defendant claimed he may have touched victim inadvertently when

sleeping in the same bed with victim).

(b) Jury Charge Nos. 16, 18, and 22-25. In a series of proposed charges,

Watkins asked the trial court to instruct the jury concerning the victim’s delay in

reporting the molestation, the victim’s motive for testifying, and various factors the

jury should consider in evaluating the victim’s testimony. Watkins’ arguments that

the trial court erred in declining to give these proposed charges are unavailing.

Each of Watkins’ proposed charges address the jury’s assessment of the

victim’s credibility. “There is no error in refusing to give a requested charge where

the applicable principles are fairly given to the jury in the general charge of the

court.” Madison v. State, 329 Ga. App. 856, 869 (6) (766 SE2d 206) (2014). See also

Gamble v. State, 291 Ga. 581, 582 (2) (731 SE2d 758) (2012) (“A trial court does not

8
abuse its discretion in refusing to give a jury charge in the exact language requested

when the charge given substantially covers the correct principles of law.”). Here, the

trial court instructed the jury that

[t]he jury must determine the credibility of the witnesses. In deciding
this you may consider all of the facts and circumstances of the case,
including the witnesses’ manner of testifying, their means and
opportunity of knowing the facts about which they testify, the nature of
the facts about which they testify, the probability or improbability of
their testimony, their interest or lack of interest in the outcome of the
case, and their personal credibility as you observe it.

Moreover, the trial court instructed the jury on impeachment of a witness and the

manner in which impeachment may be shown. Viewing the trial court’s jury charge

as a whole, we conclude that the trial court properly instructed the jury on the factors

it may consider in evaluating a witness’ credibility. See Gamble, 291 Ga. at 582 (2).

Accordingly, because the trial court’s instructions substantially covered the correct

principles of law, the trial court did not err in declining to give Watkins’ proposed

charges on witness credibility. See Id.; Madison, 329 Ga. App. at 869 (6).

(c) Jury Charge Nos. 19 and 20. Watkins also requested charges on the lesser

included offenses of simple assault, simple battery, and sexual battery. “[W]here the

state’s evidence establishes all of the elements of an offense and there is no evidence

9
raising the lesser offense, there is no error in failing to give a charge on the lesser

offense.” Madison, 329 Ga. App. at 869 (6). Pretermitting whether simple assault,

simple battery, and sexual battery can ever be lesser included offenses of child

molestation, see State v. Stonaker, 236 Ga. 1, 3 (222 SE2d 354) (1976), Madison, 329

Ga. App. at 869-870 (6) (a) and Rash v. State, 207 Ga. App. 585, 588 (6) (428 SE2d

799) (1993), Watkins’ proposed instructions were not tailored to the evidence in this

case. At trial, Watkins denied any improper touching of the victim while the victim

offered explicit testimony concerning Watkins’ actions. “Under this testimony,

[Watkins] either committed an act of child molestation or he did not.” Ney v. State,

227 Ga. App. 496, 503 (4) (g) (489 SE2d 509) (1997). As a result, “[t]he evidence in

this case offered the jury a choice between a completed crime or no crime.” Madison,

329 Ga. App. at 870 (6) (a). It follows that there was no error in declining to give the

proposed instructions on certain lesser included offenses. See Haynes, 281 Ga. App.

at 83 (2) (b).

(d) Jury Charge No. 26. Related to the charge of aggravated child molestation,

Watkins also requested an instruction on the lesser included offense of child

molestation. As noted in Divisions 3 (a) and (c), supra, Watkins alleged that no

contact occurred between the victim and himself. Accordingly, Watkins’ requested

10
charge was not adjusted to the evidence and the trial court correctly declined to give

the proposed instruction. See Madison, 329 Ga. App. at 869-870 (6) (a); Haynes, 281

Ga. App. at 83 (2) (b); Ney, 227 Ga. App. at 503 (4) (g).

4. Next, Watkins asserts that his conviction for child molestation (Count 2)

should have merged into his aggravated child molestation conviction because the

“conduct set out in both counts constitutes only one single act.” We are not

persuaded.

Watkins’ argument necessarily “ignores the language of the indictment, which

based each count on different conduct.” Carver v. State, 331 Ga. App. 120, 122 (4)

(769 SE2d 722) (2015). Count 1 charged Watkins with aggravated child molestation

“by placing his mouth on the vagina of [the victim].” Count 2 alleged Watkins

committed child molestation “by touching the vagina of [the victim].” The victim

revealed that on one occasion Watkins kissed her vagina as she lay naked on

Watkins’ bed. See OCGA §§ 16-6-2 (a) (1), 16-6-4 (c). Additional trial testimony by

the victim revealed that, on separate occasions, Watkins touched the victim’s vagina

over and under her clothing. See OCGA § 16-6-4 (a) (1). Because each count of the

indictment charged Watkins with a separate and distinct crime, his convictions for

those crimes did not merge for purposes of sentencing. See Carver, 331 Ga. App. at

11
122 (4); Young v. State, 327 Ga. App. 852, 861 (6) (a) (761 SE2d 801) (2014); Cody

v. State, 324 Ga. App. 815, 827 (5) (b) (752 SE2d 36) (2013); Smith v. State, 320 Ga.

App. 408, 413 (2) (a) (740 SE2d 174) (2013); Metts v. State, 297 Ga. App. 330, 336

(5) (677 SE2d 377) (2009).

5. Finally, Watkins contends that the trial court erred in sentencing him on each

of his convictions for child molestation to a term of confinement rather than

exercising discretion and imposing split sentences.2 See OCGA § 17-10-6.2; Spargo

v. State, 332 Ga. App. 410, 411-412 (773 SE2d 35) (2015). We agree.

Prior to trial, the State filed a notice of intent to produce Watkins’ prior

convictions in aggravation of sentencing. Watkins’ prior convictions included

possession of drugs by an inmate, aggravated assault, terroristic threats, entering an

automobile, and burglary.3 Based upon these convictions, the trial court sentenced

Watkins as a recidivist to life in prison on Count 1 (aggravated child molestation), 20

years in confinement on Count 2 (child molestation) consecutive to Count 1, and 20

2
We note that the State did not address this alleged error in its appellee’s brief.
3
Although Watkins objected to the admission of certified copies of the first
three convictions, the trial court admitted each over objection. Those rulings are not
assigned as error and, as a result, we need not review them. Watkins did not object
to the admission of the last two convictions.

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years in confinement on Counts 3 and 4 (child molestation) concurrent with Count

2. See OCGA § 17-10-7 (c).

Watkins asserts that OCGA § 17-10-6.2 required the trial court to sentence him

on the three child molestation convictions to a split sentence of confinement and

probation. Our analysis begins with OCGA § 16-6-4 (b) (1), which provides that “a

person convicted of a first offense of child molestation shall be punished by

imprisonment for not less than five nor more than 20 years and shall be subject to the

sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7.”

(Emphasis supplied). Next, OCGA § 17-10-7 (c) provides

any person who, after having been convicted under the laws of this state
for three felonies . . ., commits a felony within this state shall, upon
conviction for such fourth offense or for subsequent offenses, serve the
maximum time provided in the sentence of the judge based upon such
conviction and shall not be eligible for parole until the maximum
sentence has been served.

However, because Watkins had no prior conviction for child molestation, Watkins’

sentences were also governed by OCGA § 17-10-6.2 (b), which states, in part, that

“notwithstanding any other provisions of law to the contrary, any person convicted

of a sexual offense shall be sentenced to a split sentence which shall include the

13
minimum term of imprisonment specified in the Code section applicable to the

offense.”4 (Emphasis added). As a result, the General Assembly has mandated that in

cases in which a defendant is convicted of a “sexual offense,”5 the trial court must

include a term of probation in its sentence except in certain circumstances. See

OCGA § 17-10-6.2 (b), (c); Spargo, 332 Ga. App. at 411; Clark v. State, 328 Ga.

App. 268, 269, 270 (1) (761 SE2d 826) (2014); New v. State, 327 Ga. App. 87, 108

(5) (755 SE2d 568) (2014).

As we have noted recently, “[OCGA § 17-10-6.2] authorizes the trial court to

issue a split sentence that includes at least five years of imprisonment and at least one

year of probation, for a total of no more than twenty years.”6 Clark, 328 Ga. App. at

270 (1). Because the trial court failed to impose a split sentence, we vacate Watkins’

4
“Sexual offense,” by definition, includes child molestation. OCGA § 17-10-
6.2 (a) (5). The definition does not include aggravated child molestation.
5
See OCGA § 17-10-6.2 (a).
6
Indeed, a sentence totaling 20 years would be required under the sentencing
in this case. See OCGA § 17-10-7 (c). See also New, 327 Ga. App. at 109 (Ray, J.,
concurring); Jefferson v. State, 309 Ga. App. 861, 865 (2) (711 SE2d 412) (2011)
(“although OCGA § 17-10-7 (c) prohibits parole, it does not dispense with the trial
court’s discretion to probate or suspend part of a sentence”) (punctuation omitted),
overruled in part on other grounds, Maddox v. State, 322 Ga. App. 811 (746 SE2d
280) (2013).

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sentences for the three child molestation convictions7 and remand for resentencing.

See Spargo, 332 Ga. App. at 411; Clark, 328 Ga. App. at 270 (1).

Judgment affirmed in part and vacated in part, and case remanded for

resentencing. Branch and Peterson, JJ., concur.

7
Watkins’ life sentence for the crime of aggravated child molestation is
affirmed. See OCGA §§ 16-6-4 (c), (d) (1); 17-10-7 (c).

15