Ellis v. State

751 S.E.2d 129, 324 Ga. App. 497, 2013 Fulton County D. Rep. 3445, 2013 WL 5932022, 2013 Ga. App. LEXIS 871
CourtCourt of Appeals of Georgia
DecidedNovember 6, 2013
DocketA13A0911
StatusPublished
Cited by2 cases

This text of 751 S.E.2d 129 (Ellis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. State, 751 S.E.2d 129, 324 Ga. App. 497, 2013 Fulton County D. Rep. 3445, 2013 WL 5932022, 2013 Ga. App. LEXIS 871 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

Eugene Ellis appeals from the denial of his motion for new trial following his convictions for aggravated sexual battery, five counts of sexual battery, and six counts of sexual assault against a patient in a hospital. On appeal, Ellis contends that the evidence was insufficient to sustain his convictions, and that the trial court misinterpreted the definition of “supervisory authority” pursuant to OCGA § 16-6-5.1 in [498]*498its instruction to the jury. Following our review, we affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. Conflicts in the testimony of the witnesses . . . are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.

Reeves v. State, 244 Ga. App. 15, 17 (1) (a) (534 SE2d 179) (2000).

So viewed, the evidence demonstrates that on May 12, 2007, an officer with the City of Marietta Police Department responded to a call at Kennestone Hospital in response to an alleged sexual assault. The victim, A. S., who was from Illinois, was visiting family when she became ill and was admitted to the hospital. She told the officer that when Ellis, her respiratory therapist, had come into her room to check her breathing, he asked her to roll over, then “penetrated her vagina with his fingers.” A. S. testified that Ellis had then asked her if “it... was good” and that she did not respond but “started crying” and lay there “in shock.” After speaking with Ellis’ supervisor, the officer made a report of the incident and turned the case over to a detective. The detective later interviewed A. S. and Ellis, who denied the encounter, and based on her investigation, the detective closed the case for lack of evidence.

On June 21,2007, a different officer responded to a call from T. S., another patient at Kennestone Hospital. T. S. had been admitted to the hospital after an asthma attack, and she had been receiving breathing treatments during her week-long stay. That morning, Ellis came into her room to give her a breathing treatment. As part of the treatment, he beat on her back, then began massaging her back, side and bottom. T. S. told the officer that Ellis made her feel uncomfortable, and that he told her she had a “very nice body” and other things that “[got] him turned on.” Later that day, she told her mother about the incident, who then reported Ellis to a nurse. The nurse called Ellis to T. S.’s room, and Ellis told T. S. that there had been a misunderstanding. The officer talked with a hospital security officer, who told him that there was a similar incident on file involving Ellis.

The same detective who investigated the earlier complaint interviewed T. S. She told the detective that during her respiratory [499]*499therapy, Ellis had massaged the sides of her breasts and her legs and had put his hands under her shorts, rubbed her “butt... [and] spread [her] butt cheeks.” Ellis also asked her if she “like[d] it.” T. S. testified that the only physical contact she normally had with other physical therapists was a “cupping percussive exercise” that involved patting her back. She testified that she had never experienced a respiratory therapist massaging her or touching her breast, vagina, inner thighs and buttocks as part of her therapy.

On July 26, 2007, L. F. contacted the same detective. She told the detective that in May 2006, she had been admitted to Kennestone for asthma and diabetes, and that while Ellis was performing a cupping percussive treatment he had touched her breasts and buttocks. She told the detective that she was shocked because Ellis had treated her before, but had never acted inappropriately. L. F. recalled that she was admitted to the hospital again in May or June 2007. She awoke to find Ellis in her room and when he started to perform a procedure on her, she told him to leave. Instead of leaving, Ellis tried to “shush” her, touched her breast, and “kept trying to touch [her].” She contacted the detective when she was released from the hospital.1

1. Ellis first contends that the trial judge erred in charging the jury on supervisory authority. He argues that the trial court’s definition misinterpreted the statute and failed to provide the jury with appropriate guidelines necessary to reach its verdict. This enumeration is meritless.

The trial court charged the jury that “supervisory authority means the power to direct compliance,” using the language from Wilson v. State, 270 Ga. App. 311, 313 (2) (b) (605 SE2d 921) (2004). Ellis complains that the definition was incomplete because it did not define supervisory authority as “the power to direct and to enforce compliance” as set forth in Randolph v. State, 269 Ga. 147, 150 (496 SE2d 258) (1998).

We first note that Ellis did not except to the charge when it was given to him before the jury was charged and also responded that he had no exceptions after the charge was given. Therefore, we review this contention only for plain error. See State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011); OCGA § 17-8-58 (b).2 Thus, we must determine whether there is an error that has not been affirmatively [500]*500waived, is clear and obvious, affects the defendant’s substantial rights, and “seriously affects the fairness, integrity or public reputation” of the judicial proceedings. Kelly, 290 Ga. at 33 (2) (a).

OCGA § 16-6-5.1 (b) (4) provides:

A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person... [i] s an employee or agent of a hospital and engages in sexual contact with such other individual who the actor knew or should have known is a patient or is being detained in the same hospital [.]

In this case, Ellis was charged with having supervisory authority over the victims rather than both supervisory and disciplinary authority. The statute clearly contemplates two distinct types of authority. One may have disciplinary or supervisory authority, or as noted in Randolph, both types of authority. There, our Supreme Court defined “supervisory and disciplinary authority,” in the conjunctive, as “the power to direct and to enforce compliance.” Id. The Court also defined “supervisory . . . authority,” in the disjunctive, as “the power to direct. . . compliance.” Id.; see Wilson, 270 Ga. App. at 313 (2) (b).

Here, the trial court did not err in its charge by providing the jury with only the definition of supervisory authority set forth in Randolph and Wilson.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gregory Leon Jackson, Jr. v. State
Court of Appeals of Georgia, 2014
Jackson v. State
766 S.E.2d 558 (Court of Appeals of Georgia, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
751 S.E.2d 129, 324 Ga. App. 497, 2013 Fulton County D. Rep. 3445, 2013 WL 5932022, 2013 Ga. App. LEXIS 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-state-gactapp-2013.