FOURTH DIVISION REESE, P. J., RICKMAN and BROWN, 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. http://www.gaappeals.us/rules
December 7, 2020
In the Court of Appeals of Georgia A20A1082. RICE v. THE STATE.
RICKMAN, Judge.
Following a bench trial, Justin Daniel Rice was convicted on seven counts of
child molestation, two counts of sexual exploitation of children, and three counts of
invasion of privacy. On appeal, Rice contends, inter alia, that the evidence was
insufficient to sustain his convictions, that the trial court erred by granting the State’s
motions in limine regarding evidence against his wife, and that the trial court erred
by failing to admit Rice’s polygraph results. For the following reasons, we reverse.
“On appeal the evidence must be viewed in the light most favorable to support
the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an
appellate court determines evidence sufficiency and does not weigh the evidence or
determine witness credibility.” (Citation and punctuation omitted.) Craft v. State, 252 Ga. App. 834, 835 (558 SE2d 18) (2001). “In this case, there was a bench trial. When
the trial court sits as the trier of fact, its findings are analogous to a jury verdict” and
will not be disturbed if there is any evidence from which a rational trier of fact could
find Rice guilty beyond a reasonable doubt. (Citation and punctuation omitted.) Id.
at 840 (1).
So viewed, the evidence showed that a special agent with the Department of
Homeland Security became aware of some photographs of a young girl online. The
photographs were located in a folder titled “9-Y-O sleeping.” The special agent
testified that 3 of the 12 photographs, “were of a fully-clothed child that wouldn’t
arise any kind of normal issues.” The special agent explained, however, “that there
were nine images that were suggestive . . . as potential child sexual exploitation,
which were images of a child sleeping in a dark room, clothed, but the clothes were
arranged in such a way that led [agents] to believe that they had been partially
removed or that she had been posed[.]” The special agent further explained that those
12 images were indicative of, but not child sexual exploitation material or contraband
and that one would not be arrested for simply possessing the images.
Using clues from the background of some of the photographs, the special agent
was able to identify the child depicted. After responding to a potential residence for
2 the child, the special agent made contact with Rice’s wife. The special agent showed
Rice’s wife the photographs and she identified the child depicted as her daughter, S.
E. Rice’s wife initially told the special agent that she took one of the photographs in
which S. E. was sleeping, and denied taking the other photographs. Rice’s wife said
that she would not take that many photos at once. In addition to S. E., Rice’s young
daughters, M. R. and E. R. also resided with him and his wife every other weekend.
Rice’s wife got in touch with Rice and he spoke to the special agent on the
phone. The special agent testified that he informed Rice about the images, asked Rice
to come back to his house, and asked to look at Rice’s phone. It took Rice double the
amount of time to get home than he estimated for the special agent. After Rice
arrived, he gave consent to search to his phone. There was nothing on Rice’s phone
and Rice informed the special agent that he had reset his phone the day prior.
Rice told the special agent that he did not recognize the name of the file-
sharing website where S. E.’s pictures were discovered. Interestingly, the special
agent noticed that Rice had a tattoo on his arm “of a cassette tape in the semblance
of a skull and crossbones.” Rice informed the special agent that the tattoo represented
the logo of a website that the special agent testified was “a common resting place for
3 illicit material, everything ranging from pirated motion pictures and music to child
pornography, child sexual exploitation material.”
A special agent in computer forensics for the Department of Homeland Security
testified that he downloaded the data from the cell phones belonging to Rice and his
wife. The forensics agent determined that Rice performed a factory reset on his phone
on the morning that the first special agent spoke to him. The forensics agent testified
that he also analyzed the photographs and concluded that two or three of the
photographs were taken with a Samsung cell phone 910 model and all of the other
photographs were taken with a Samsung cell phone 920 model. At the time their
phones were searched, both Rice and his wife had Samsung model 920 phones.
E. R. and M. R.’s mother testified that after she was told about the photographs,
she asked both of her daughters “if anything had happened to them.” M. R.
immediately replied negatively but E. R. hesitated and her mother subsequently
followed up with her. Eventually, E. R. told her mother that “she woke up one night
and her vagina was being touched, but that she did not open her eyes and that she
wiggled around to let the person know that she was waking up so that they would go
away, and they did.” E. R. did not see who touched her. At the time of the incident,
E. R. shared a room with Rice, Rice’s wife, and her sisters.
4 A corporal with the Gwinnett County police department performed a recorded,
forensic interview of E. R. E. R. told the corporal that, at the time she was touched,
her father, her father’s wife, and M. R. were in the room. E. R. explained that her
father’s wife was against the wall and asleep when she was touched but that her eyes
were closed and she did not actually see who touched her. E. R. thought that it was
Rice who touched her.
At some point during the investigation, the special agent was contacted about
additional photographs that were discovered. The special agent testified that he
recognized those images to be indicative of sexual of exploitation of children. The
photographs were of E. R. and S. E.
A grand jury returned an indictment charging Rice with 34 counts of child
molestation, 2 counts of sexual exploitation of children, and 12 counts of invasion of
privacy. Following a bench trial, Rice was convicted on seven counts of child
molestation, two counts of sexual exploitation of children, and three counts of
invasion of privacy. Rice filed a timely motion for new trial, which the trial court
denied.
1. Rice contends that the evidence was insufficient to support his convictions.
5 (a) Child molestation (Count 1).
The indictment charged that Rice “did . . . unlawfully perform an immoral and
indecent act upon the person of E. R., a child under the age of sixteen (16) years, by
touching her vaginal area, with intent to arouse and satisfy the sexual desires of said
child and said accused[.]” See OCGA § 16-6-4 (a) (1) (defining child molestation).
Here, the evidence showed that E. R. told her mother and the forensic
interviewer that she woke up in the middle of the night to her vagina being touched.
E. R. explained that Rice was present during the incident and that the only other adult
in the room was asleep. E. R. was seven years old at the time of the incident. This
evidence was sufficient to authorize the factfinder to find Rice guilty of child
molestation. See Zuniga v. State, 300 Ga. App. 45, 48-49 (2) (684 SE2d 77) (2009)
(affirming defendant’s child molestation conviction based on circumstantial
evidence); Hall v. State, 196 Ga. App. 523, 524 (1) (396 SE2d 271) (1990)
(“Although the evidence was in conflict and depends largely on the credibility of the
six year old victim, the credibility of witnesses and the resolution of such conflicts
are for the jury.”).
(b) Child molestation (Counts 4, 17, 18, 26, 28, 29, 36).
6 The indictment charged that Rice “did . . . unlawfully perform an immoral and
indecent act upon the person of [S. E, M. R., and E. R.], . . . child[ren] under the age
of sixteen (16) years by taking . . . sexually suggestive photograph[s] . . . with intent
to arouse and satisfy the sexual desires of said child[ren] or said accused.” See OCGA
§ 16-6-4 (a) (1) (defining child molestation).
“As a criminal statute, OCGA § 16–6–4(a) “must be construed strictly against
criminal liability and, if it is susceptible to more than one reasonable interpretation,
the interpretation most favorable to the party facing criminal liability must be
adopted.” (Citation and punctuation omitted.) Vines v. State, 269 Ga. 438, 438–39
(499 SE2d 630) (1998). “[W]hen a criminal statute fairly and reasonably is subject
to two constructions, one which would render an act criminal, the other which would
not, the statute must be construed strictly against the State and in favor of the accused.
(Citation and punctuation omitted; emphasis in original). Id. at 439.
The State contends that the act of taking the photograph of the clothed children
while they were sleeping constituted performing an immoral and indecent act upon
them. The indictment alleges that the photographs were “sexually suggestive” but that
phrase is not defined by statute and the State admits that “no Georgia law explicitly
makes it a crime to take ‘sexually suggestive’ photographs.” Interestingly, the State
7 further argues that “if done in a child’s presence, taking a picture of a potted plant
might be an act of child molestation if there is sufficient evidence to show that the
photographer acted with sexual intent.” We disagree.
The photographs at issue were of S. E. and E. R. asleep and clothed in
underwear and a shirt and M. R. with her bottom exposed. There was no evidence that
S. E., M.R., or E. R. were aware that the photographs were taken. There is no
authority to support the State’s argument that taking photographs of your sleeping,
unaware daughter and step-daughter is an act of child molestation. Additionally,
“even if the State’s broad construction were reasonable despite the lack of any
supporting authority, the contrary strict construction of OCGA § 16-6-4 nevertheless
must be accepted because it is at least equally reasonable.” Vines, 269 Ga. at 439.
“Furthermore, OCGA § 16-6-4(a) must be construed in connection with all of
the other provisions of the criminal code.” Vines, 269 Ga. at 439. OCGA § 16-12-100
(b) (1) criminalizes taking phonographs of minors engaging in sexually explicit
conduct.1 See OCGA § 16-12-100 (b) (1) (“It is unlawful for any person knowingly
1 “‘Sexually explicit conduct’” means actual or simulated: (A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) Bestiality; (C) Masturbation; (D) Lewd exhibition of the genitals or pubic area of any person; (E) Flagellation or torture by or upon a person who is nude; (F) Condition of being fettered, bound, or otherwise
8 to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist
any other person to engage in any sexually explicit conduct for the purpose of
producing any visual medium depicting such conduct.”). If the photographs depicted
sexually explicit conduct, then Rice’s alleged act would constitute the offense of
sexual exploitation of children.
Accordingly, we conclude that Rice’s actions in photographing S. E., M. R.,
and E. R., while concerning, did not constitute child molestation under OCGA § 16-
6-4 (a). See Vines, 269 Ga. at 440; Prophitt v. State, 336 Ga. App. 262, 270-271 (784
SE2d 103) (2016) (physical precedent only). We therefore must reverse Rice’s
convictions for child molestation on Counts 4, 17, 18, 26, 28, 29, 36.
(c) Sexual exploitation of children (Counts 2 and 3).
The indictment charged that Rice “did knowingly create . . . photograph[s], a
visual medium depicting a minor, [S. E. and E. R.], engaged in lewd exhibition of the
physically restrained on the part of a person who is nude; (G) Physical contact in an act of apparent sexual stimulation or gratification with any person’s unclothed genitals, pubic area, or buttocks or with a female’s nude breasts; (H) Defecation or urination for the purpose of sexual stimulation of the viewer; or (I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.” OCGA § 16-12-100 (a) (4).
9 genitals or pubic area, sexually explicit conduct.” See OCGA § 16-12-100 (b) (1)
(defining sexual exploitation of children).
One photograph was of S. E. sleeping with her shirt pulled up her underwear
pulled down and the other was of E. R. sleeping in a shirt with her underwear pulled
down and her legs spread. At the time the photographs were taken, S. E. and E. R.
were eight years old. A rational trier of fact could infer that S. E. and E. R. were
lewdly exhibiting their genitals in the photographs, and thus the evidence was
sufficient to support Rice’s convictions for sexual exploitation of children on Counts
2 and 3. See Craft, 252 Ga. App. at 841-842 (1) (b).
(d) Invasion of privacy (Counts 39, 40, and 41).
The indictment charged that Rice “did, through the use of a device, to wit:
cellular telephone, without the consent of all persons observed, photograph the
activities of another person[s], to wit: [E. R. and S. E.], in a private place, a bedroom,
and out of public view[.]” See OCGA § 16-11-62 (2) (defining unlawful
eavesdropping or surveillance). “‘Private place’ means a place where there is a
reasonable expectation of privacy.” OCGA § 16-11-60 (3). “As the Supreme Court
of Georgia has noted, OCGA § 16-11-62 was intended to protect all persons from an
invasion of privacy. . . . There is no express exception for family members.” (Citation
10 and punctuation omitted.) Snider v. State, 238 Ga. App. 55, 57 (1) (b) (516 SE2d 569)
(1999).
We have previously affirmed convictions for criminal invasion of privacy
where the evidence showed that a teenage stepdaughter was filmed by her step-father
while nude in her bedroom, a teenage daughter was filmed through her bedroom
window by her father while she undressed, and for a teenager was photographed by
her guardian after she had passed out in the bathroom while nude. See Price v. State,
320 Ga. App. 85, 86 (2) (738 SE2d 289) (2013); Snider, 238 Ga. App. at 57-58 (1)
(b); Kelley v. State, 233 Ga. App. 244, 249 (2) (503 SE2d 881) (1998), disapproved
of on other grounds by State v. Burns, 306 Ga. 117, 124 (2) FN 3 (829 SE2d 367)
(2019).
Here, however, the photographs were not taken of nude or partially nude
teenagers. The subjects of the alleged invasion of privacy were two eight year old
girls who were asleep in a bedroom that they shared with Rice and Rice’s wife.
Neither of the girls testified at trial that they did not consent to the photographs being
taken. The State failed to show both that the photographs were taken without the girls
consent and that the young girls had a reasonable expectation of privacy while they
were sleeping in a bedroom that they shared with their parents. See Price, 320 Ga.
11 App. at 86 (2) (State required to show “that the recording was made without the
consent of all persons”); Snider, 238 Ga. App. at 57 (1) (b) (teenage victim “was of
an age to understand that she had a right to privacy in certain situations” including
in her bedroom). Accordingly, because the State failed to meet its burden, we reverse
Rice’s convictions for invasion of privacy.
2. In two enumerated errors Rice contends that the trial court erred by granting
the State’s motions in limine excluding information about Rice’s wife’s occupation
and excluding Rice from “pointing the finger” at his wife. We agree.
When analyzing the admissibility of testimony implicating another person,
[c]ertainly a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature
(Citation and punctuation omitted.) Gilreath v. State, 298 Ga. 670, 673 (2) (784 SE2d
388) (2016). “A reasonable inference of the defendant’s innocence is raised by
evidence that renders the desired inference more probable than the inference would
12 be without the evidence.” (Citation and punctuation omitted.) Id. “This Court reviews
a trial court’s decision on the admission of evidence for abuse of discretion.” Id.
At the hearing on the State’s motion in limine, Rice explained that his wife had
an online sex business whereby she would perform sexual acts in exchange for money
using a web camera. Rice’s wife advertised herself online in order to attract more
customers. Rice argued that,
the fact that [Rice’s wife] maintains an online sex business, the fact that she has the sophistication and the wherewithal to upload photographs to the Internet as a calling card, the fact that she is sophisticated enough to know where to put those images, the fact that she is sophisticated enough to know where to upload photos of herself, that she is sophisticated enough to be able to engage in providing her services in exchange for money, the fact that a person can upload credit card information and she’s able to obtain those funds and she’s able to put herself out there, that shows there’s another person in the household with the ability and the sophistication to have posted these photographs.
In addition to Rice’s wife’s involvement and knowledge of the online sex
business, she resided in the same bedroom as the children, she had the same make and
model of phone that took some of the photographs, and when she was initially
confronted by the special agent she immediately admitted to taking one of the
photographs. In its brief, the State argues that, [w]hile evidence about [Rice’s wife’s]
13 online activities may have made [Rice’s] defense incrementally stronger, it strains
credulity . . . to say that his theory was eviscerated by its absence.” The State
acknowledges “the circumstantial nature of [Rice’s] case,” but takes the position that,
“[Rice’s] arguments seem to have largely succeeded [because] he was acquitted of 35
of the 48 counts in his indictment, or about 73% of his charges.” Further, the State
argues that “[t]he fact that the trial court may have disagreed with [Rice’s] defense
theory on 27% of his charges does not mean he was barred from effectively asserting
it.”
Rice’s sole defense was that his wife committed the crimes for which he was
charged. That Rice was acquitted of the some of his charges is not relevant to the
determination of whether he was able to adequately present his defense. The trial
court’s rulings prevented Rice from not only presenting evidence that the only other
adult sharing a room with S. E. and E. R. had experience in the online sex trade, but
also from cross-examining her about it.
The evidence about Rice’s wife’s occupation in combination with the other
testimony about her opportunity to commit the crimes in question, raises a reasonable
inference of Rice’s innocence and connects his wife with the corpus delicti.
Accordingly, the trial court abused its discretion and Rice’s convictions must be
14 reversed. See Gilreath, 298 Ga. at 674-675 (2) (reversing defendant’s convictions
because “[t]he trial court’s ruling not only hamstrung the defense from rebutting
testimony that [defendant’s girlfriend] was a good mother, but the ruling also
prevented [defendant] . . . from presenting evidence that the only other person in the
house at the time had a history of cruel treatment toward her own children”); Scott v.
State, 281 Ga. 373, 377-378 (3) (637 SE2d 652) (2006) (holding that the trial court
erred by excluding evidence that the only other adult in the residence at the time a
child was injured had a history of inappropriate behavior against her own child).
Because we have determined that the evidence was sufficient to support Rice’s
convictions on counts 1, 2, and 3 (child molestation and sexual exploitation of
children), the State is not barred from retrying Rice on those counts. See Gilreath,
298 Ga. at 675 (2).
3. Rice contends that the trial court erred in excluding evidence that he passed
a polygraph.
We address this enumeration because it is likely to occur at retrial. Rice took
and passed an unstipulated polygraph and the trial court excluded the results because
of the lack of stipulation.
15 “It has been stated and reiterated that under the law as it now exists in this
State, results of polygraph tests are admissible only upon the express stipulation of
the parties.” (Citation and punctuation omitted; emphasis in original.) McGraw v.
State, 199 Ga. App. 389, 393 (10) (405 SE2d 53) (1991). “Neither the legislature nor
the Supreme Court has provided for admission under the theory of a stipulation
implied by the circumstance of favorable evidence for the accused.” Id. Accordingly,
the trial court did not err by failing to admit the results of Rice’s polygraph. See
McIntyre v. State, 207 Ga. App. 129, 130 (2) (427 SE2d 99) (1993); McGraw, 199
Ga. App. at 393 (10).2
Judgment reversed. Reese, P. J., and Brown, J., concur.
2 We will not address Rice’s argument that the trial court erred by allowing other acts evidence pursuant to OCGA § 24-4-404 (b). In the event of retrial, the trial court would need to again consider whether this evidence would be admissible considering the remaining charged offenses.