Daniel Culverson v. State

• Court: Court of Appeals of Georgia
• Decided: April 12, 2024
• Docket: A24A0543
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., HODGES and WATKINS, 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

April 12, 2024

In the Court of Appeals of Georgia A24A0543. CULVERSON v. THE STATE.

HODGES, Judge.

Following a jury trial, the Superior Court of Decatur County entered a

judgment of conviction against Daniel Edward Culverson for one count each of

invasion of privacy (OCGA § 16-11-62 (2) (A)) and sexual battery against a child under

16 (OCGA § 16-6-22.1 (b)). Culverson appeals from the trial court’s denial of his

motion for new trial as amended, arguing that the evidence was insufficient to support

his convictions, that the trial court erred in allowing the jury to review an exhibit after

the close of the evidence, and that the cumulative effect of the trial court’s errors

entitles him to a new trial. Finding no error, we affirm. Viewed in a light most favorable to the verdict,1 the evidence adduced at trial

revealed that Culverson telephoned 911 on September 11, 2020, to complain that his

girlfriend, L. S., was forcing him to leave the Decatur County residence they shared

with her two daughters, D. S. and M. S. When an investigator arrived and spoke with

L. S., he learned that she had received multiple text messages from D. S. accusing

Culverson of doing “the same thing that he was doing to [D. S.]” to M. S. and stating

to L. S., “you’re going to do something about it or I’m going to do something about

it.” L. S. returned home, confronted Culverson, and ordered Culverson to leave,

which prompted his 911 call.

L. S. stated that her daughters had made allegations against Culverson “years

before,” but that she had not taken any action. On one occasion, D. S. told her that

Culverson texted her, saying, “if you keep wearing those booty shorts, you’re going

to get what you want.” L. S. confronted him and “kicked him out of the house[,]” but

the couple reconciled. Other allegations included Culverson hiding in the daughters’

closets while they showered and looking at the daughters through their bedroom

windows. Of particular relevance to this appeal, the daughters told L. S. that when

1 See Rogers v. State, 369 Ga. App. 543 (894 SE2d 85) (2023). 2 they would get out of the shower, they would see a “little snakehead” camera under

the bathroom door. In an attempt to stop the camera, the girls would either toss towels

on top of the camera or stuff towels under the door before showering.

After speaking with L. S., the investigator then met with M. S. and D. S. The

girls’ reports were similar, but more detailed. M. S. also revealed that Culverson

would touch her breasts when he would slip money into her bra. M. S. later found the

camera used under the bathroom door hidden in Culverson’s bedroom. Finally, the

investigator spoke with Culverson, who denied the girls’ accusations and maintained

the girls were lying, particularly about him hiding in the closet.

At trial, the girls’ uncle (L. S.’s brother) testified that he noticed a change in the

girls’ behavior in the years leading up to September 2020. During that time, the girls

eventually reported Culverson’s conduct to the uncle, with M. S. telling him that

Culverson would hide in the bushes outside her window and look inside and that D.

S. discovered Culverson hiding in her closet when she came into her bedroom after

showering. The uncle angrily confronted L. S., telling her that she needed to “call the

law” and that “[s]omething needs to be done about this[;]” in response, L. S. stated

3 only that “she was going to do her own investigation.” When the uncle confronted

Culverson, Culverson’s only response was that L. S. “would be mad.”

D. S. testified that Culverson took her clothes out of the bathroom while she

showered, requiring her to return to her bedroom wearing only a towel; Culverson

would hide in the closet or between her bed and the wall to watch her remove her

towel. She also stated that Culverson inserted a camera under the bathroom door

while she showered and that she discovered the camera when she got out of the

shower. In addition, she testified that Culverson would hide in the bushes outside her

bedroom window. M. S. testified that she also saw the camera under the bathroom

door when she was showering and that Culverson touched her breasts and tried to put

money in her bra. For his part, Culverson denied any wrongdoing and testified that the

allegations against him were in retaliation for serving as the victims’ disciplinarian.

A Decatur County grand jury indicted Culverson for three counts of child

molestation, two counts each of enticing a child for indecent purposes and invasion

of privacy, and one count of sexual battery against a child under 16. The trial court

directed a verdict of acquittal on the two counts of enticing a child for indecent

purposes and on one count of invasion of privacy, and the jury found Culverson not

4 guilty of the child molestation counts. The jury returned verdicts of guilty against

Culverson on the remaining counts of invasion of privacy and sexual battery against

a child under 16, and the trial court denied Culverson’s motion for new trial as

amended. This appeal follows.

1. In two related enumerations of error, Culverson contends that the evidence

was insufficient to support his convictions and that his motions for directed verdict

on the two charges for which he was convicted should have been granted. We

disagree.

Under Georgia law,

[i]t is well settled that the standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

(Citation and punctuation omitted.) King v. State, 364 Ga. App. 263, 265 (874 SE2d

439) (2022).

5 (a) Invasion of Privacy. Subject to exceptions which are not applicable to this

case, “[i]t shall be unlawful for . . . [a]ny person, through the use of any device,

without the consent of all persons observed, to observe, photograph, or record the

activities of another which occur in any private place and out of public view[.]”

OCGA § 16-11-62 (2). Here, both M. S. and D. S. testified that they spotted a “little

snakehead” camera spying on them from underneath the bathroom door while they

showered and as they got out of the shower. D. S. also testified that, while she did not

see who was holding the camera on the other side of the door, she identified

Culverson because she “could hear him walking in his boots.” Finally, the camera was

later found in Culverson’s bedroom. See OCGA § 16-11-62 (2).

(b) Sexual Battery against a Child under 16. “A person commits the offense of

sexual battery when he or she intentionally makes physical contact with the intimate

parts of the body of another person without the consent of that person.” OCGA § 16-

6-22.1 (b). The definition of “intimate parts” includes the female breasts. OCGA §

16-6-22.1 (a). At trial, M. S. testified that Culverson, who was the disciplinarian of the

household, touched her breasts when she was younger than 16. In addition, the uncle’s

testimony that M. S. cried and became “really . . . upset” as she told him that

6 Culverson “was touching her” authorized the jury to conclude that the touching was

accomplished without her consent. See OCGA §§ 16-6-22.1 (b), 24-14-8 (“The

testimony of a single witness is generally sufficient to establish a fact.”); see also Smith

v. State, 361 Ga. App. 436, 439 (1) (b) (864 SE2d 645) (2021) (holding, in prosecution

for aggravated sexual battery, that the jury could infer lack of consent from other

evidence and that victim was not “required to testify that she did not consent”);

Nembhard v. State, 360 Ga. App. 568, 569-570 (1) (859 SE2d 118) (2021) (noting, in

affirming sexual battery conviction, that defendant’s touching “had no benign or non-

sexual purpose” and that defendant was in an authority position over victim).

Therefore, viewed in a light most favorable to the verdict, we conclude that a

rational trier of fact could have found Culverson guilty beyond a reasonable doubt of

the crimes with which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979); Reyes v. State, 356 Ga. App. 346, 348 (1) (847 SE2d

25) (2020) (finding evidence of sexual battery sufficient where defendant touched

victim’s breasts); Price v. State, 320 Ga. App. 85, 86 (2) (738 SE2d 289) (2013)

(concluding evidence of invasion of privacy sufficient where defendant placed hidden

camera to record victim showering and dressing); Snider v. State, 238 Ga. App. 55,

7 57-58 (1) (b) (516 SE2d 569) (1999) (finding evidence of invasion of privacy sufficient

where nude defendant watched adopted daughter through bathroom window).

2. Next, Culverson argues that the trial court erred in allowing the jury to

review a series of text messages after the evidence closed. Because the text messages

were not subject to the continuing witness rule, we find no error.

In its case in chief, the State tendered a series of text messages between the

victim and her mother into evidence. The trial court admitted the text messages as

State’s Exhibit 1 without objection, and the State published the exhibit to the jury.

The trial court did not allow the exhibit to go out with the jury, noting that “[t]hey can

always send a note requesting to re-see them again. . . .” During deliberations, the jury

sent a note to the trial court, indicating that it was “missing State’s Evidence #1[.]”

The trial court indicated it would instruct the jury on Georgia’s continuing witness

rule and allow the jury to inspect the exhibit in the courtroom. Culverson objected to

the court’s proposed procedure and asked that the trial court simply instruct the jury

on the continuing witness rule. The trial court overruled Culverson’s objection,

8 instructed the jury on the continuing witness rule, and allowed the jury to review the

exhibit in the courtroom.2

the continuing witness objection is based on the idea that it is unfair and places undue emphasis on written testimony, which is heard by the jury when given from the witness stand, for the writing to go out with the jury to be read again during deliberations, given that oral testimony is received only once, when given from the witness stand.

Clarke v. State, 308 Ga. 630, 636 (4) (842 SE2d 863) (2020). See also Keller v. State,

308 Ga. 492, 505-506 (9) (842 SE2d 22) (2020). However, the text messages in this

case

were not the reduction to writing of an oral statement, nor a written statement provided in lieu of testimony. Instead, they were original documentary evidence. The challenged exhibits were not written testimony and did not derive their evidentiary value solely from the credibility of their makers. Instead, they were original documentary evidence, and were properly allowed to go out with the jury.

2 The trial court allowed the jurors to pass the exhibit amongst themselves “because that’s how they saw it in the first place.” The record indicates that the jury reviewed the text messages for as long as 34 minutes. 9 (Citation omitted.) Clarke, 308 Ga. at 636 (4); accord Keller, 308 Ga. at 506 (9).

Accordingly, we find no error.3

3. Finally, Culverson asserts that the cumulative effect of the trial court’s errors

entitles him to a new trial. As Culverson has only identified one purported error, the

cumulative error analysis does not apply.

In State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808) (2020), the Supreme Court

of Georgia adopted a cumulative error analysis, articulating that “the proper approach

[for such an analysis] is to consider collectively the prejudicial effect, if any, of trial

court errors, along with the prejudice caused by any deficient performance of

counsel.” Of course, “where, as here[,] there are not multiple errors, there can be no

cumulative error.” Williams v. State, 358 Ga. App. 152, 157 (c) (853 SE2d 383) (2021).

See also Martin v. State, 360 Ga. App. 1, 10 (3) (860 SE2d 582) (2021). Here, the only

alleged error Culverson identified was the trial court’s decision to allow the jury to

review an exhibit after the close of the evidence — an allegation that we determined

3 Davis v. State, 285 Ga. 343, 348 (8) (676 SE2d 215) (2009), upon which Culverson solely relies, does not require a different result. In addition to having been decided over a decade before the discussion of text messages and the continuing witness rule in Clarke, 308 Ga. at 636 (4), and Keller, 308 Ga. at 505-506 (9), Davis determined that documents including “letters, photographs and a death certificate” were properly allowed to go out with the jury. Id. 10 lacked merit in Division 2. To the extent Culverson claims that sufficiency of the

evidence should be a part of the cumulative error analysis, we are unpersuaded. See

generally Rodgers v. Kirkland, No. CV 07-2807 RGK (FFM), 2011 U. S. Dist. LEXIS

104625, *53 (VI) (G) (C.D. Cal. 2011) (“Petitioner’s sufficiency of the evidence claim

does not lend itself to a cumulative error claim because it involves no error that

impacted the jury’s verdict. Rather, it merely challenges whether that verdict was

supported by sufficient evidence.”). As a result, Culverson’s cumulative error

argument fails on this basis.

Judgment affirmed. Doyle, P. J., and Watkins, J., concur.