Ayers v. State

SMITH, Presiding Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 3 of the majority, and with the conclusion that the trial court erred in Division 2. I respectfully dissent because that error does not require reversal. Overwhelming evidence supports the defendant’s convictions for child molestation, enticing a child for indecent purposes, kidnapping, and false imprisonment. This is not a case involving a swearing contest between one victim and an accused. Multiple victims testified to startlingly similar conduct by the defendant and the sexually graphic computer images provide independent and overwhelming tangible evidence of *906Ayers’s intent with regard to the sexual offenses. See Blige v. State, 264 Ga. 166, 168 (3) (441 SE2d 752) (1994) (evidence of similar transactions supported finding that evidence was overwhelming, rendering trial court’s error harmless). Additionally, two of the victims, who did not know one another, made independent reports to the police on the same day.

Because both the majority and dissent focus on whether overwhelming evidence of sexual intent existed, this dissent will focus on that issue as well. OCGA § 16-6-4 (a) defines child molestation as “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.” Id.

Immoral or indecent acts constituting child molestation refer to acts generally viewed as morally indelicate or improper or offensive and acts which offend against the public’s sense of propriety. . . . [T]he Georgia law against child molestation affords protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature.

(Citations and punctuation omitted.) Wormley v. State, 255 Ga. App. 347, 348 (565 SE2d 530) (2002). In this case, the defendant’s conduct in tying the children up and gagging their mouths in a way similar to numerous sexually explicit images on his home computer provides overwhelming evidence that he did so with the “intent to arouse or satisfy” his sexual desires. Particularly telling is the evidence that one child, while he was bound, saw on Ayers’s computer an image of someone who was also bound. Since the crime of child molestation was complete when Ayers tied the children up to arouse his sexual desires, the conflict in the evidence about what he did with the children after he tied them up and blindfolded them is immaterial and does not render the evidence less than overwhelming.

The computer images also provide overwhelming evidence that Ayers enticed the children for indecent purposes, a crime that was complete when he obtained permission from their parents under false pretenses and took them to his home for the purpose of arousing his sexual desires. See OCGA § 16-6-5 (a).

In support of its conclusion that overwhelming evidence of guilt is lacking in this case, the majority, without citation to authority, asserts that “[o] ver whelming circumstances do not necessarily equate with overwhelming circumstantial evidence of guilt, although it may in certain instances.” Overwhelming evidence or “circumstances” is overwhelming evidence, however, whether it be direct or circumstantial, and provides overwhelming evidence of guilt. Cf. Collum v. State, *907281 Ga. 719, 722 (2) (642 SE2d 640) (2007) (overwhelming circumstantial evidence of guilt rendered trial court’s error harmless); Chews v. State, 187 Ga. App. 600, 603 (1) (371 SE2d 124) (1988) (full concurrence in Division 1) (“circumstantial evidence of defendant’s guilt was overwhelming”).

Because overwhelming evidence of Ayers’s guilt exists, we should affirm his convictions.