Ayers v. State

BERNES, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 3 of the majority opinion, and with the majority’s conclusion that the trial court erred in denying Ayers’s request to have his second counsel make an additional closing argument on his behalf. But, because the evidence of Ayers’s guilt was so overwhelming that it renders any other version of events virtually without belief, I respectfully dissent from the reversal of Ayers’s multiple convictions centered on the hog-tying, blindfolding, and touching of the three young boys B. Z., B. R, and C. C. in a manner consistent with the myriad images of bondage pornography found on his home computer.27

The evidence at trial reflects that the bizarre circumstances of this case were initially related and reported separately by two different children, B. Z. and B. P. As the majority notes, both children reported to their respective parents that Ayers had hog-tied them, taped their eyes, and touched them. More specifically, immediately after Ayers brought him home, and in front of Ayers, B. Z. asked his mother to “tell Mr. Ayers never to tape my eyes and my mouth shut again.” The following day, B. Z.’s mother overheard a statement from B. Z.’s friend, C. C., that he “didn’t like Mr. Ayers tickling [him], either.” B. Z. later told his parents that Ayers had tied him up and taped his eyes and mouth shut. Likewise, when Ayers took B. P. home, his father inquired about red marks across his eyes. B. P. described how Ayers tied him up, taped his eyes, fed him pudding, and attempted to stick something in his mouth.

The families of B. Z. and B. P, who did not know each other, then independently called two separate agencies on the same day and related virtually identical allegations against Ayers. Moreover, both families alleged that Ayers initiated contact with them, arranged to pick up the children under the auspices of a play date, took the children to his house where no one else was present, and then performed the acts detailed in the majority opinion.

*908The allegations of B. Z. and B. P. were consistent with the allegations of C. C., who testified that while Ayers was alone with him, Ayers tied him up with his feet and hands behind his back, put tape over his mouth and eyes, and began touching him. In turn, the allegations of all three child victims were consistent with, and were corroborated by, the physical evidence found by police. In Ayers’s bedroom near his bed, where B. Z. and B. P. alleged that the crimes occurred, the officers found a bag containing white rope and a role of duct tape. B. Z. and B. P. identified the rope and the tape as the ones used in the transgressions against them. In the trash outside, an officer found an empty container of chocolate pudding in close proximity to a wadded up ball of used duct tape.

Most significantly, the officers found over 1,300 images of pornography on Ayers’s computer, the vast majority of which involved bondage. These images included countless pictures of males that had been hog-tied and gagged in the manner described by the children, taken from sites such as “bound & gagged,” “hogtied,” “hogtied bondage,” and “teenboy’s pics.” The computer was located in Ayers’s bedroom, in close proximity to his bed.

Finally, on the night of his arrest, Ayers himself essentially admitted perpetrating the acts allegedby B. Z., B. P, and C. C. During the initial interview at his home and subsequent interview at the police station, Ayers admitted to having tied up B. Z., B. P, and C. C. during the month of July. In particular, he admitted that he had “hog-tied” and tickled B. Z. in his bedroom using rope from his computer desk, and admitted putting tape on his face. He also admitted that he had taken B. P. to his house alone, fed him pudding, and later tied him up. And he admitted that he “hog-tied” and tickled C. C. in his living room using white rope, after having invited C. C. over despite the absence of his children.

To discount this damning evidence, Ayers presented a version of events at trial that requires this Court to disregard the credible testimony of all three children, their parents, and the two investigating officers who interviewed Ayers incident to his arrest. To believe Ayers’s story we must ignore physical evidence, such as the white rope that, according to Ayers, the children had no reason to know existed. And, we must deem it a coincidence that Ayers’s computer was replete with images of bondage consistent with that of the children’s accounts, and believe that the children, their families, and law enforcement conspired to frame Ayers for reasons unknown and otherwise completely unexplained.

Indeed, Ayers himself apparently believed that a conspiracy theory was necessary in order explain how and why B. Z. and B. P, who did not know each other, would make up virtually similar allegations that also were consistent with the allegations of C. C. At *909trial, Ayers claimed that on his way to B. P.’s house, he ran into B. Z.’s mother in the parking lot of a drugstore. B. Z.’s mother apparently wanted “to go somewhere and talk” and said that if he did not, he would “regret it.” Ayers said that he explained to B. Z.’s mother that he could not talk because he had to go pick up B. P. for a play date at his house. B. P. apparently lived in a house that had been converted to apartments located near the drugstore. Ayers claimed that he physically pointed to the house and told B. Z.’s mother that B. P. lived in an apartment on the back side of the house and that was where he was headed, implying that B. Z.’s mother must have later gone to the house and conspired with B. P. and his parents to falsely accuse Ayers of the alleged crimes.

Sometimes, a defendant simply digs a deeper hole for himself through his testimony at trial. That is the case here. Ayers’s trial testimony should not be seized upon as a basis for reversal of his multiple convictions. Under these circumstances, where the acts allegedly perpetrated were bizarre in nature but nevertheless were initially related and reported separately by two different children who did not know one another, were corroborated by physical evidence taken from the defendant’s home, and were essentially admitted to by the defendant in his first encounter with law enforcement, I believe that the evidence of guilt was overwhelming, and was not made less so by Ayers’s implausible trial testimony.28

The majority agrees that there was overwhelming evidence that Ayers’s bound and tickled the victims, but opines that the evidence of Ayers’s sexual intent was not overwhelming because it was “clearly circumstantial.”29 This is simply wrong. Circumstantial evidence can be, and in this case is, overwhelming. See, e.g., Collum v. State, 281 Ga. 719, 722 (2) (642 SE2d 640) (2007). As noted, the State presented evidence of Ayers’s extensive library of bondage pornography, which included multiple poses and images remarkably similar to the children’s descriptions of what occurred in this case, which constituted extremely strong evidence of sexual motivation. And, candidly, there is no innocent explanation for an adult male in his mid-thirties *910spending time alone with young boys, hog-tying them, taping their eyes and mouths, tickling them, and placing pudding-covered, unidentified hard objects in their mouths. This cannot reasonably be explained away as mere horseplay or fun-and-games.

Decided July 16, 2007 Reconsideration denied July 31, 2007 Gordon & Brown, Gerald W. Brown, for appellant. Robert W. Lavender, District Attorney, Leon Jour olmon, Assistant District Attorney, for appellee.

For these reasons, I believe that the harmless error standard set forth in Sheriff v. State, 277 Ga. 182, 188 (3) (587 SE2d 27) (2003) has been met. Ayers’s convictions for the offenses committed against B. Z., B. R, and C. C. should be affirmed.

I am authorized to state that Judge Miller joins in this opinion.

Ayers also was convicted of the false imprisonment of a fourth child, M. S., but I agree with the majority that the evidence of that particular offense, with respect to that particular child, was not overwhelming.

The majority accuses the dissent of improperly weighing the evidence. While it is true that we are not to weigh the evidence or assess witness credibility in determining the sufficiency of the evidence, any harmless error analysis inexorably leads to an evaluation of the strength of the evidence. See Dixon, v. State, 173 Ga. App. 280, 282 (325 SE2d 893) (1985) (noting that once this Court determines that error was committed at trial, “the evidence is examined to determine” whether the error was harmless).

The majority finds it significant that the minor child victims were not aware that Ayers’s conduct was sexual. But, even when the most blatant sexual acts are perpetrated upon young children, the children may not have the awareness or the ability to describe the conduct as sexual. As such, the victims’ lack of subj ective awareness is of little import to the analysis under the circumstances of this case.