SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 18, 2021
In the Court of Appeals of Georgia
A21A0540. MCCURDY v. THE STATE.
PIPKIN, Judge.
Russell Calvin McCurdy was convicted by a jury of rape, multiple counts of
child molestation and aggravated child molestation, and 55 counts of sexual
exploitation of a minor.1 McCurdy appeals, arguing that the evidence was insufficient
and that the trial court should have merged his convictions for sexual exploitation of
a minor. While we find the evidence sufficient to support the guilty verdicts on all
counts, we agree, as more fully set forth below, that merger is required as to his
convictions and sentences for sexual exploitation of a minor. Accordingly, we vacate
1
McCurdy was charged with fifty-seven counts of sexual exploitation of a
minor, but the trial court directed a verdict on two of the counts. The trial court also
merged several of the child molestation and aggravated child molestation counts for
sentencing.
his sentence as to those counts and remand for resentencing consistent with this
opinion.
1. McCurdy first contends that the evidence was insufficient.
Viewed in the light most favorable to the verdict,2 the evidence shows that
children of all ages, some of whom were related to McCurdy’s girlfriend or his ex-
wife, frequently played at McCurdy’s house without their parents being present. Five
of these children were named in the counts charging McCurdy with rape, child
molestation and aggravated child molestation. The sexual exploitation of children
counts each alleged that McCurdy possessed an “animated visual medium” depicting
a child or children engaged in sexually explicit conduct. See OCGA § 16-12-100 (b)
(8). We consider McCurdy’s challenge to the sufficiency of the evidence as to the
various counts and separate victims in turn, setting out additional evidence as it
pertains to those counts.
(a) Counts 1 through 3. Counts 1 through 3 of the indictment allege that
McCurdy committed the crimes of rape, aggravated child molestation (by an act of
oral sodomy) and child molestation (by placing his hands on the buttocks and vagina)
against K. A. The evidence shows that K. A.’s mother contacted police after learning
2
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
that K. A. had reported to a family member that McCurdy had “messed” with her.
Although the victim, who was only four years old at the time the crimes were
committed, testified at trial she did not remember McCurdy or the sexual acts he
perpetrated against her,3 K. A. reported during a forensic interview conducted several
weeks after she made her outcry that “Papa Russell” had pulled down her pants and
touched her on her privates and buttocks while she was sleeping, “making her
[privates] feel worse.” Further, during a search of McCurdy’s home, police found
video recordings stored on one of his computers showing a man rubbing his penis on
the labia and then forcing his penis into the vagina of a sleeping or unconscious
young girl, a man placing his tongue on the labia and inside the vagina of a sleeping
or unconscious young girl, and a man masturbating while he fondled the buttocks and
vagina of a sleeping or unconscious young girl; these video clips were played for the
jury at trial. K. A.’s mother identified K. A. as the child in the video clips, and she
gave police the shirt that the child was seen wearing in some of them. Although
McCurdy argues that the evidence was insufficient to establish his identity and venue
since his face was not seen during the sex acts, another video clip stored in the same
folder shows McCurdy’s face, parts of his distinctive tattoos can be seen while he was
3
K. A. was seven years old when she testified at trial.
3
adjusting the video camera in the clips, and the part of his bedroom painted a
distinctive green is visible in some of the clips;4 screen shots of this evidence were
also shown to the jury at trial, and it is clear from the video clips that it is the same
man abusing the same young girl in all the clips. Additionally, during one of the
videos, an adult’s voice is heard asking “Where’s Bonnie,” and testimony was
presented that a dog named Bonnie lived at the residence where the acts were alleged
to have occurred. This evidence, as well as other evidence presented at trial linking
McCurdy to the videos,5 was more than sufficient under the standard of Jackson v.
Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), to authorize McCurdy’s
convictions for the crimes charged in Counts 1 through 3 of the indictment.
(b) Counts 4 and 5. Counts 4 and 5 charge McCurdy with committing acts
constituting the offenses of aggravated child molestation (by placing his mouth on the
victim’s vagina) and child molestation (by touching the victim’s vagina) against L.
N. R. This victim, who was 14 years old when she testified at trial, testified that
4
Testimony was presented that McCurdy’s house where the acts were alleged
to have occurred and the materials relating to the sexual exploitation charges were
found was located in Richmond County.
5
For instance, several of the victims told the forensic interviewer that McCurdy
had cameras all over his house, and one of the victims testified about him recording
her while she was in the shower through an opening he had made in the bathroom.
4
McCurdy and her Aunt Lindsey lived together and that sometimes she and her sisters
would spend several nights there or stay the weekend. She recounted that one time
McCurdy touched her on her “girl’s area” with his hand and said that it made her
uncomfortable and nervous to talk about it. In her forensic interview, which was
played for the jury, L. N. R. told the interviewer that “my Auntie’s boyfriend” had
touched and licked her on her “girl’s part,” and she indicated on an anatomical
drawing that her “girl’s part” was her vagina. This evidence was sufficient to convict
McCurdy of the crimes of child molestation and aggravated child molestation as
charged in Counts 4 and 5 of the indictment.
(c) Counts 6 and 7. Counts 6 and 7 of the indictment allege that McCurdy
committed acts of aggravated child molestation (by placing his mouth on the victim’s
vagina) and child molestation (by touching the victim’s vagina and attempting to have
her touch his penis) against L. L. R. This victim, who was 13 years old at the time of
trial, told the jury that one night when she stayed over at his house, McCurdy touched
her private part with his mouth; she identified her “private part” as the part below the
belt that a girl uses to go to the bathroom. She testified that during her forensic
interview at the Child Advocacy Center, she also told the interviewer about “other
stuff” McCurdy did to her, and when the interview was played for the jury, they heard
5
the victim tell the interviewer that McCurdy pulled her pants down and touched her
on her private part with his hand and that he had her touch him on his private part.
Although McCurdy points to inconsistencies between L. L. R.’s recorded forensic
interview and her testimony at trial, “[i]t is the role of the jury to resolve conflicts in
the evidence and to determine the credibility of witnesses, and the resolution of such
conflicts adversely to the defendant does not render the evidence insufficient.”
(Citation and punctuation omitted.) Green v. State, 304 Ga. 385, 387-388 (1) (818
SE2d 535) (2018). Jackson v. State, 330 Ga. App. 822, 825 (769 SE2d 567) (2015)
(same).
(d) Counts 8 and 9. Counts 8 and 9 allege McCurdy committed acts of child
molestation against T. C. by placing his hand on her breast and vagina and placing
her hand on his penis. T. C. told a forensic interviewer that when she was almost 12
years old, McCurdy touched her under her bathing suit while they were in a Jacuzzi
at his house and that on another occasion, he touched her on her breast with his hand
and made her touch his private with her hand; this interview was played for the jury
at trial. At trial, T. C. admitted that she made those statements but denied that the
molestations had occurred. However, it has been firmly established that the resolution
6
of conflicts between a victim’s trial testimony and her pretrial inconsistent statement
is for the jury. Walker v. State, 348 Ga. App. 273, 275 (1), n.1 (821 SE2d 567) (2018).
This is true even in cases in which the victim recants her previous
accusation against the defendant. The reason for this rule is that the
victim’s prior inconsistent statements are admissible as substantive
evidence for the jury’s consideration. Thus, a jury is authorized to
believe the victim’s pre-trial statement rather than her in-court
disavowal.
(Citation omitted.) Miller v. State, 300 Ga. App. 652, 655 (686 SE2d 302) (2009).6
(e) Count 10. Count 10 of the indictment alleges that McCurdy committed child
molestation by asking L. A. R. to perform oral sex on him. L. A. R. testified at trial
that when she was in the seventh grade, the following conversation occurred when
she went to the store with McCurdy:
[McCurdy] was like, do you know what a 69 is? And I was like, no. And
he was like, do you want to know what it is, and like do you want to find
out? And I was like, no. And he was like, is it because you’re scared or
you don’t want people to find out about it?
6
Although Miller was decided under Georgia’s old evidence code, the rules
surrounding the admission and consideration of this type of evidence remain
substantially unchanged. See Chambers v. State, 351 Ga. App. 771, 773-774 (1) (833
SE2d 155) (2019).
7
The victim testified he also described what he was talking about: “He was like, you
go down on me and I like go down on you, like at the same time.”
McCurdy argues on appeal that the evidence was insufficient because he just
asked L. A. R. a question and never touched her; he says that at most, he was guilty
of attempted child molestation, not child molestation. We disagree. Pursuant to
OCGA § 16-6-4 (a) “A person commits the offense of child molestation when such
person: (1) Does 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 the person[.]” Although not directly posed as a question,
ascertaining whether L. A. R. would commit the act with him was clearly the import
of the conversation. And McCurdy did not merely proposition the victim – he also
explained an oral sex position to a middle-school-aged girl who had indicated to him
that she was not interested in knowing what his reference to a “69” meant, and he did
so not in generic terms but by describing what he would do to her and what she would
do to him “at the same time” during a conversation that took place while they were
alone in his vehicle. Our law is clear that “touching” is not necessary to show an act
of child molestation, and we have previously held that “the ‘act’ required by the
statute may be merely verbal.” Hicks v. State, 254 Ga. App. 814, 816 (2) (563 SE2d
8
897) (2002) (verbal act of asking victim to spread her legs was sufficient to show
child molestation). See Thompson v. State, 287 Ga. App. 563, 563-564 (2) (370 SE2d
819) (1988) (although defendant did not touch the child, evidence that he made the
child dance naked in his presence was sufficient to constitute child molestation).
Further, “[f]or the purposes of OCGA § 16-6-4, immoral or indecent acts are acts
generally viewed as morally indelicate or improper or offensive and acts which offend
against the public’s sense of propriety.” (Punctuation omitted.) Cavender v. State, 329
Ga. App. 845, 847 (10) (766 SE2d 196) (2014), disapproved on other grounds,
Martin v. McLaughlin, 284 Ga. 44, 46, n.3 (779 SE2d 294) (2015). It was for the jury
to decide whether McCurdy’s act of engaging in a graphic conversation about oral
sex with a middle-school-age child while sitting alone with her in a vehicle was such
an immoral or indecent act, and likewise for the jury to decide whether such act was
done with the intent to arouse or satisfy his sexual desires. See Brown v. State, 324
Ga. App. 718, 720-721 (1) (751 SE2d 517) (2013) (recognizing that “[t]he child
molestation statute does not require proof of the defendant’s actual arousal” and that
the intent to arouse may be inferred) (citation and punctuation omitted). Accordingly,
McCurdy is not entitled to reversal of his conviction for this offense.
9
(f) Counts 11-29, 31-51, and 52-67.7 These counts allege that McCurdy
committed the crime of sexual exploitation of a minor by possessing videos of minors
engaged in sexually explicit conduct. On appeal, McCurdy argues that the evidence
was insufficient to show he possessed the videos because nothing placed him “behind
the computer” where the videos were found. This contention is unavailing. Counts
11 and 12 of the indictment concern the possession of the videos McCurdy made
while he was raping and molesting K. A., and the State’s forensic computer expert
testified about the evidence linking the camera used for the recordings and one of
McCurdy’s computers. Further, as stated in Division 1, circumstances existed that
allowed McCurdy to be identified as the man committing the acts against K. A., and
the other videos McCurdy was charged with possessing were found on the same
device. The State’s forensic expert also testified extensively about the digital
footprints he found linking McCurdy with a computer on which McCurdy had made
thousands of searches for child pornography, and the evidence showed that
McCurdy’s devices contained hundreds of images – including both the videos he was
charged with possessing as well as other videos and photographs – of children
7
As stated above, the trial court directed a verdict on Counts 30 and 52 and
these charges were not submitted to the jury.
10
engaged in sexually explicit conduct. This evidence, as well as the evidence showing
that McCurdy engaged in numerous acts of child molestation, some of which he
recorded, was sufficient to show that McCurdy possessed the videos depicting minors
engaged in sexually explicit conduct as alleged in the counts of the indictment
charging him with sexual exploitation of a minor.
2. As stated above, McCurdy was convicted and sentenced on 55 counts of
sexual exploitation of a minor based on his concurrent possession of visual media
found on a single device depicting minors engaged in various sexually explicit acts.
See OCGA § 16-12-100 (b) (8).8 Citing Edvalson v. State, 310 Ga. 7 (849 SE2d 204)
(2020), and Coates v. State, 304 Ga. 329 (818 SE2d 622) (2018), McCurdy argues
that the trial court should have merged his convictions into a single count for
sentencing. We are constrained to agree. The State concedes that the merger of counts
13-29, 31-51 and 53-67 is required under our Supreme Court’s holdings in those
cases, but argues that counts 11 and 12 should not merge because those relate to
“home-grown” videos McCurdy created of the sex crimes he committed on K. A.,
which reflect date stamps showing that they were created at separate times. However,
8
That subsection makes it “unlawful for any person to knowingly possess or
control any material which depicts a minor or a portion of a minor’s body engaged
in sexually explicit conduct.”
11
McCurdy was charged with possession, not creation, of the visual media described
in counts 11 and 12, and those counts track the same language as the other counts
charging sexual exploitation and recite the same date. The evidence also shows that
the video clips of K. A. were found on the same device as the other visual media
McCurdy was charged with possessing, and the State’s forensic expert testified that
the dates on the video clips of K. A. did not definitively establish when they were
made. Thus, as charged, this case, like Edvalson, concerns the “simultaneous
possession of multiple ‘visual media’” 310 Ga. at 10, n. 8, and, as explained in
Edvalson and Coates, the gravamen of the offense was the possession of prohibited
material, not the number of items possessed. Id., 310 Ga. at 10; Coates, 304 Ga. at
331-332. We are thus constrained by our Supreme Court’s reasoning in Edvalson and
Coates to agree with McCurdy that we must vacate his sentences on the counts
alleging sexual exploitation of children and remand for the trial court to merge his
convictions into one count. See Edvalson, 310 Ga. at 11.
Judgment affirmed in part, vacated and remanded in part. Miller, P. J., and
Hodges, J., concur.
12