SECOND DIVISION RICKMAN, C. J., MILLER, P. J., and PIPKIN, J.
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
September 26, 2022
In the Court of Appeals of Georgia A22A0948. HUGHES v. THE STATE.
RICKMAN, Chief Judge.
Following a jury trial, Jeremy Hughes was convicted of incest and child
molestation. On appeal, Hughes contends that the verdict was contrary to and against
the weight of the evidence, that the evidence was insufficient to support his
convictions, and that the trial court erred by admitting other acts evidence under
OCGA § 24-4-414.
“On appeal from a criminal conviction, an appellate court determines evidence
sufficiency and does not weigh the evidence or determine witness credibility, and the
evidence is viewed in the light most favorable to support the verdict, with the
defendant no longer benefitting from a presumption of innocence.” (Citation and
punctuation omitted.) State v. Palacio-Gregorio, 361 Ga. App. 339, 340 (862 SE2d 605) (2021). “The standard under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781,
61 LE2d 560) (1979), is whether the evidence was sufficient for a rational trier of fact
to find beyond a reasonable doubt that the defendant was guilty of the charged
offense.” (Citation and punctuation omitted.) Id.
So viewed, the evidence showed that the victim was Hughes’s step-daughter.
When the victim was approximately nine years old, she began to live with her mother
and Hughes. Due to her mother’s work schedule, when the victim was not in school
Hughes cared for her. The victim’s mother testified that Hughes treated the victim as
if she was his own daughter and that he loved to spoil her with gifts.
The victim testified that Hughes began touching her inappropriately when she
was 11 years old. At that time, Hughes would grab her on her bottom and vagina and
throw her on the bed. When the victim was 13 years old, the abuse escalated. Hughes
and the victim were in his room when Hughes began to remove the victim’s clothing.
After taking off her clothes, Hughes engaged in sexual intercourse with the victim.
The victim was scared and the sexual intercourse continued to take place atleast twice
a week until the victim was almost 16 years old, right before Hughes and her mother
got a divorce. Hughes threatened the victim that if she ever told anyone about the
2 abuse, he would kill her and the rest of her family. In addition to sexual intercourse,
the victim testified that Hughes would kiss her and perform oral sex on her.
The victim’s mother testified that towards the end of her marriage to Hughes
he “[w]ould not sexually have any contact with me.” On several occasions Hughes
suggested going into the victim’s room while the victim was sleeping and having sex
on her bedroom floor.
Ultimately, the victim disclosed the abuse to a school counselor once Hughes
was no longer in her life. After the disclosure, the victim told her mother what had
happened and law enforcement was notified. The victim was interviewed by a child
advocate regarding the abuse. The victim disclosed to the child advocate that Hughes
raped her when her mother was at work and the child advocate testified that the
victim’s “interview [was] consistent with one given by a child who had been sexually
abused.”
A SANE nurse examined the victim. The victim had three notches on her
hymen. The SANE nurse testified that a notch was
an area of scarring . . . on the hymen. . . . What we’re looking for and what we know is it’s almost like V in the tissue and we call that a notch. Something that was within what we call the acute time frame we could call a tear, but once it’s well-healed, we call it a notch. It feels like a scar
3 anywhere else on your body. You can tell that there’s been a cut there, but you can’t necessarily tell how long it’s been there. It’s healed.
The SANE nurse opined that notching was consistent with the victim’s disclosure of
sexual abuse.
A sergeant with the St. John’s County Sheriff’s Office from St. Augustine,
Florida testified as an other acts witness. The sergeant testified that he posted an
advertisement on Craig’s List titled “Special Needs Needs Special Attention.” Hughes
responded to the advertisement and the sergeant indicated that he had custody of his
14-year-old niece who was deaf and was looking to make a new friend for her. After
Hughes responded to the advertisement, the sergeant gave Hughes the phone number
for the purported child.
Hughes began to exchange text messages with the purported child and their
conversation turned sexual in nature. Hughes asked the purported child if she had
ever kissed a boy and he told her that he liked to have sex. The purported child asked
if she was to young for Hughes and he replied that she was not. Hughes then sent
graphic messages to the purported child about specific sexual acts he enjoyed
including oral sex. The conversation then progressed to what sexual acts Hughes and
the purported child would do together when they saw each other. Hughes and the
4 purported child arranged a time to meet each other and when Hughes arrived at the
agreed upon location, he was apprehended by law enforcement.
The sergeant testified that Hughes waived his Miranda rights and agreed to
speak with him. The sergeant gave the following synopsis of their conversation:
Hughes denied that anybody else had any access to his phone or emails. He pretty much made himself the only person who would have been in charge of the devices that were used to communicate with my undercover persona. He was eventually shown copies of the messages exchanged and indicated that they were a fair representation of the conversation that occurred. He pretty much admitted that he would be the only possible suspect through the investigation.
1. In two enumerations of error Hughes contends that the verdict was contrary
to and against the weight of the evidence and that the evidence was insufficient to
support his convictions.1
1 We note that Hughes failed to include a statement of facts in his brief as required by Court of Appeals Rule 25 (a) (1). It is insufficient and a violation of this court’s rules to omit a statement of facts and only reference the pertinent facts in the argument section. This violation is particularly egregious in this case where Hughes challenges the sufficiency of the evidence.
5 “In any case when the verdict of a jury is found contrary to evidence and the
principles of justice and equity, the judge presiding may grant a new trial before
another jury.” OCGA § 5-5-20. “The presiding judge may exercise a sound discretion
in granting or refusing new trials in cases where the verdict may be decidedly and
strongly against the weight of the evidence even though there may appear to be some
slight evidence in favor of the finding.” OCGA § 5-5-21. “When properly raised in
a timely motion, these grounds for a new trial—commonly known as the ‘general
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SECOND DIVISION RICKMAN, C. J., MILLER, P. J., and PIPKIN, J.
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
September 26, 2022
In the Court of Appeals of Georgia A22A0948. HUGHES v. THE STATE.
RICKMAN, Chief Judge.
Following a jury trial, Jeremy Hughes was convicted of incest and child
molestation. On appeal, Hughes contends that the verdict was contrary to and against
the weight of the evidence, that the evidence was insufficient to support his
convictions, and that the trial court erred by admitting other acts evidence under
OCGA § 24-4-414.
“On appeal from a criminal conviction, an appellate court determines evidence
sufficiency and does not weigh the evidence or determine witness credibility, and the
evidence is viewed in the light most favorable to support the verdict, with the
defendant no longer benefitting from a presumption of innocence.” (Citation and
punctuation omitted.) State v. Palacio-Gregorio, 361 Ga. App. 339, 340 (862 SE2d 605) (2021). “The standard under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781,
61 LE2d 560) (1979), is whether the evidence was sufficient for a rational trier of fact
to find beyond a reasonable doubt that the defendant was guilty of the charged
offense.” (Citation and punctuation omitted.) Id.
So viewed, the evidence showed that the victim was Hughes’s step-daughter.
When the victim was approximately nine years old, she began to live with her mother
and Hughes. Due to her mother’s work schedule, when the victim was not in school
Hughes cared for her. The victim’s mother testified that Hughes treated the victim as
if she was his own daughter and that he loved to spoil her with gifts.
The victim testified that Hughes began touching her inappropriately when she
was 11 years old. At that time, Hughes would grab her on her bottom and vagina and
throw her on the bed. When the victim was 13 years old, the abuse escalated. Hughes
and the victim were in his room when Hughes began to remove the victim’s clothing.
After taking off her clothes, Hughes engaged in sexual intercourse with the victim.
The victim was scared and the sexual intercourse continued to take place atleast twice
a week until the victim was almost 16 years old, right before Hughes and her mother
got a divorce. Hughes threatened the victim that if she ever told anyone about the
2 abuse, he would kill her and the rest of her family. In addition to sexual intercourse,
the victim testified that Hughes would kiss her and perform oral sex on her.
The victim’s mother testified that towards the end of her marriage to Hughes
he “[w]ould not sexually have any contact with me.” On several occasions Hughes
suggested going into the victim’s room while the victim was sleeping and having sex
on her bedroom floor.
Ultimately, the victim disclosed the abuse to a school counselor once Hughes
was no longer in her life. After the disclosure, the victim told her mother what had
happened and law enforcement was notified. The victim was interviewed by a child
advocate regarding the abuse. The victim disclosed to the child advocate that Hughes
raped her when her mother was at work and the child advocate testified that the
victim’s “interview [was] consistent with one given by a child who had been sexually
abused.”
A SANE nurse examined the victim. The victim had three notches on her
hymen. The SANE nurse testified that a notch was
an area of scarring . . . on the hymen. . . . What we’re looking for and what we know is it’s almost like V in the tissue and we call that a notch. Something that was within what we call the acute time frame we could call a tear, but once it’s well-healed, we call it a notch. It feels like a scar
3 anywhere else on your body. You can tell that there’s been a cut there, but you can’t necessarily tell how long it’s been there. It’s healed.
The SANE nurse opined that notching was consistent with the victim’s disclosure of
sexual abuse.
A sergeant with the St. John’s County Sheriff’s Office from St. Augustine,
Florida testified as an other acts witness. The sergeant testified that he posted an
advertisement on Craig’s List titled “Special Needs Needs Special Attention.” Hughes
responded to the advertisement and the sergeant indicated that he had custody of his
14-year-old niece who was deaf and was looking to make a new friend for her. After
Hughes responded to the advertisement, the sergeant gave Hughes the phone number
for the purported child.
Hughes began to exchange text messages with the purported child and their
conversation turned sexual in nature. Hughes asked the purported child if she had
ever kissed a boy and he told her that he liked to have sex. The purported child asked
if she was to young for Hughes and he replied that she was not. Hughes then sent
graphic messages to the purported child about specific sexual acts he enjoyed
including oral sex. The conversation then progressed to what sexual acts Hughes and
the purported child would do together when they saw each other. Hughes and the
4 purported child arranged a time to meet each other and when Hughes arrived at the
agreed upon location, he was apprehended by law enforcement.
The sergeant testified that Hughes waived his Miranda rights and agreed to
speak with him. The sergeant gave the following synopsis of their conversation:
Hughes denied that anybody else had any access to his phone or emails. He pretty much made himself the only person who would have been in charge of the devices that were used to communicate with my undercover persona. He was eventually shown copies of the messages exchanged and indicated that they were a fair representation of the conversation that occurred. He pretty much admitted that he would be the only possible suspect through the investigation.
1. In two enumerations of error Hughes contends that the verdict was contrary
to and against the weight of the evidence and that the evidence was insufficient to
support his convictions.1
1 We note that Hughes failed to include a statement of facts in his brief as required by Court of Appeals Rule 25 (a) (1). It is insufficient and a violation of this court’s rules to omit a statement of facts and only reference the pertinent facts in the argument section. This violation is particularly egregious in this case where Hughes challenges the sufficiency of the evidence.
5 “In any case when the verdict of a jury is found contrary to evidence and the
principles of justice and equity, the judge presiding may grant a new trial before
another jury.” OCGA § 5-5-20. “The presiding judge may exercise a sound discretion
in granting or refusing new trials in cases where the verdict may be decidedly and
strongly against the weight of the evidence even though there may appear to be some
slight evidence in favor of the finding.” OCGA § 5-5-21. “When properly raised in
a timely motion, these grounds for a new trial—commonly known as the ‘general
grounds’—require the trial judge to exercise a broad discretion to sit as a ‘thirteenth
juror.’” (Citation omitted.) Massey v. State, 346 Ga. App. 233, 235 (2) (816 SE2d
100) (2018). “Trial courts have discretion to grant a new trial on [the general
grounds] but appellate courts do not.” Plez v. State, 300 Ga. 505, 507 (1) n. 2 (796
SE2d 704) (2017). “Our review is limited to the legal sufficiency of the evidence.”
Id. “Indeed, even when asked to review a trial court’s refusal to grant a new trial on
the general grounds, this Court must review the case under the standard set forth in
Jackson v. Virginia.” (Citation and punctuation omitted.) Id.
The indictment in this case charged Hughes with incest in that he “did
unlawfully engage in sexual intercourse with [the victim], accused’s stepdaughter,
knowing that he is related to the said stepdaughter by marriage[.]” See OCGA § 16-6-
6 22 (a) (1) (defining incest between father and stepchild). Hughes was also charged
with child molestation in that he “did commit an immoral and indecent act to [the
victim], a child under the age of 16 years, with the intent to arouse or satisfy the
sexual desires of himself or said child by putting his penis in the vagina of said
child[.]” See OCGA § 16-6-4 (a) (1) (defining child molestation).
The victim’s testimony that she had sexual intercourse several times with
Hughes, her stepfather, combined with the testimony from the SANE nurse regarding
the injuries to her hymen was sufficient to support Hughes convictions for incest and
child molestation. See Davenport v. State, 316 Ga. App. 234, 236 (1) (a) (729 SE2d
442) (2012) (affirming defendant’s conviction for incest based upon the victim
testimony that she and her step-father had sexual intercourse); Smith v. State, 320 Ga.
App. 408, 410-411 (1) (a) (740 SE2d 174) (2013) (holding that there was sufficient
evidence to support defendant’s conviction for child molestation based upon the
victim’s testimony).
2. Hughes contends that the trial court erred by admitting other acts evidence
under OCGA § 24-4-414.
“In a criminal proceeding in which the accused is accused of an offense of
child molestation, evidence of the accused’s commission of another offense of child
7 molestation shall be admissible and may be considered for its bearing on any matter
to which it is relevant.” OCGA § 24-4-414 (a). “Offense of child molestation”
includes obscene Internet contact with a child under OCGA § 16-2-100.2 (e) (1) and
attempted enticement of a child for indecent purposes under OCGA § 16-6-5. See
OCGA § 24-4-414 (d) (1). “A person commits the offense of obscene Internet contact
with a child if he . . . has contact . . . with someone he . . . believes to be a child via
a computer wireless service or Internet service . . . and the contact involves any matter
containing explicit verbal descriptions or narrative accounts of . . . sexual conduct
[or] sexual excitement . . . that is intended to arouse or satisfy the sexual desire of
either the child or the person.” OCGA § 16-2-100.2 (e) (1).
OCGA § 24-4-414 “is a rule of inclusion, with a strong presumption in favor
of admissibility.” (Citation and punctuation omitted.) Palacio-Gregorio, 361 Ga.
App. at 343 (2) (a). “[T]he State can seek to admit evidence under [OCGA § 24-4-
414] for any relevant purpose, including propensity.” (Citation and punctuation
omitted.) Dixon v. State, 350 Ga. App. 211, 213 (1) (828 SE2d 427) (2019).
“Nevertheless, the evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” (Citation and punctuation omitted.)
Id. See OCGA § 24-4-403. “But the exclusion of evidence under OCGA § 24-4-403
8 is an extraordinary remedy which should be used only sparingly.” (Citation and
punctuation omitted.) Palacio-Gregario, 361 Ga. App. at 343 (2) (a). “We review a
trial court’s decision to admit evidence under OCGA § 24-4-414 for abuse of
discretion.” Id.
Hughes argues that the State failed to prove that the other act constituted an
offense of child molestation. Hughes correctly points out that a completed act of
enticing a child for indecent purposes as defined by OCGA § 16-6-5 requires that the
victim be an actual child under the age of 16. See Smith v. State, 340 Ga. App. 457,
460 (1) (797 SE2d 679) (2017). Hughes, however, ignores that OCGA § 24-4-414 (d)
(1) explicitly states that ‘offense of child molestation’ means any conduct or attempt
or conspiracy to engage in” any conduct that would be a violation of OCGA § 16-6-5.
(Emphasis supplied). We have held that attempted enticement of a child for indecent
purposes can be accomplished where the defendant engaged in sexually explicit
communications with a person he believed to be under the age of 16 and arranged to
meet the purported child. See Smith, 340 Ga. App. at 461 (1). Hughes contact with
the purported victim in Florida would satisfy the requirements of attempted
enticement of a child for indecent purposes. Additionally, the same facts also would
be a violation of OCGA § 16-2-100.2 (e) (1), obscene internet contact with a child.
9 Accordingly, the other act did constitute an “offense of child molestation” as defined
by OCGA § 24-4-414 (d) (1).
The sergeant testified that Hughes admitted to sending the messages to the
person he believed to be a minor. At trial, Hughes denied having any inappropriate
contact with the victim. Thus, the fact the Hughes had attempted to meet another
purported teenage victim to have sexual intercourse was highly probative of his
motive. Under the facts and circumstances of this case and considering the strong
presumption in favor of admissibility under both OCGA § 24-4-414 (a) and OCGA
§ 24-4-403, the trial court did not abuse its discretion in admitting the other acts
evidence.2 See Palacio-Gregorio, 361 Ga. App. at 343-344 (2) (a) (holding that the
trial court did not abuse its discretion in admitting other acts evidence under OCGA
§ 24-4-414); Boyd v. State, 351 Ga. App. 469, 473-474 (3) (820 SE2d 163) (2019)
(same).
Judgment affirmed. Miller, P. J., and Pipkin, J., concur.
2 Because we find the other acts admissible under OCGA § 24-4-414, we need not address Hughes’s argument that the trial court erred in admitting the other acts evidence pursuant to OCGA § 24-4-404 (b).