Michael Lee Shepherd v. State

• Court: Court of Appeals of Georgia
• Decided: December 4, 2019
• Docket: A19A2186
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., MERCIER 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

November 14, 2019

In the Court of Appeals of Georgia A19A2186. SHEPHERD v. THE STATE.

MERCIER, Judge.

Following a jury trial, Michael Lee Shepherd was convicted of multiple counts

of aggravated child molestation, child molestation, attempted child molestation, and

cruelty to children. The trial court denied Shepherd’s motion for new trial, and he

appeals, challenging the sufficiency of the evidence. For reasons that follow, we

affirm in part and reverse in part.

On appeal from a criminal conviction, we construe the evidence in the light

most favorable to the verdict, and the defendant no longer enjoys a presumption of

innocence. See Terry v. State, 293 Ga. App. 455 (667 SE2d 109) (2008). We do not

weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient for the jury to find the defendant guilty of the

charged offenses beyond a reasonable doubt. See id.

So viewed, the evidence shows that Shepherd has two sons, D. S. and A. S.,

and one daughter, E. S. In 2014, the Department of Family and Children Services

(“DFCS”) received information regarding allegations of domestic violence and

substance abuse in Shepherd’s home. DFCS removed the children from the home and

placed them in foster care, where they disclosed to their foster mother that Shepherd

had beaten them on numerous occasions. D. S. and E. S. also reported that Shepherd

had sexually abused them. The foster mother reported the outcries to DFCS

personnel, who contacted the police.

The children subsequently described physical beatings and sexual abuse during

forensic interviews that were video-recorded and played for the jury. They also

reported the abuse to a medical provider, recounting various incidents of sexual and

physical abuse, including that Shepherd hit them, threatened them with weapons, and

slammed D. S. against a sink. The police obtained a search warrant for Shepherd’s

home and discovered specific items mentioned by the children, including a sword,

drug paraphernalia, a back scratcher, and pornographic videos.

2 The three children, who ranged in age from ten to twelve years old at the time

of trial, testified about the physical abuse inflicted by their father. They asserted that

Shepherd beat A. S. with his hands and a wooden back scratcher, causing A. S. to

bleed. Shepherd also threatened A. S. with an ax and kicked him down a flight of

stairs. Shepherd hit D. S. and E. S. with the back scratcher, held a knife to D. S.’s

throat while choking him, cut D. S.’s hand with a knife, and placed a gun to D. S.’s

head. Shepherd similarly threatened E. S. with weapons, putting a gun to her head and

a sword to her throat.

D. S. and E. S. further described the sexual abuse. Both testified that Shepherd

made them watch pornographic videos. After watching the videos and at Shepherd’s

insistence, D. S. masturbated, and E. S. placed her mouth on D. S.’s penis. Shepherd

also forced E. S. to place her mouth on his penis more than one time, and Shepherd

made D. S. place his mouth on Shepherd’s penis. Shepherd attempted to touch E. S.’s

genital area with his mouth and hand. And he made D. S. and E. S. smoke drugs.

The jury found that Shepherd committed multiple offenses: five counts of

aggravated child molestation by forcing E. S. to place her mouth on his penis on two

occasions (Counts 1 and 2), placing his mouth on E. S.’s genital area (Count 3),

having E. S. place her mouth on D. S.’s penis (Count 4), and having D. S. place his

3 mouth on Shepherd’s penis (Count 12); two counts of child molestation by showing

pornographic material to D. S. and E. S. (Count 5) and having D. S. place his hand

on his own penis (Count 13); one count of criminal attempt to commit child

molestation by trying to place his hand on E. S.’s genital area (Count 6); and fifteen

counts of cruelty to children by hitting E. S. with his hand (Count 7), putting a sword

to E. S.’s throat (Count 8), placing a firearm to the heads of D. S. and E. S. (Counts

9 and 14), forcing D. S. and E. S. to smoke a substance that had the effect of a drug

(Counts 11 and 20), placing a knife to D. S.’s head (Count 15), cutting D. S. with a

knife (Count 16), choking D. S. (Count 17), hitting D. S. with a back scratcher (Count

18), slamming D. S. against a sink (Count 19), throwing A. S. down a flight of stairs

(Count 21), threatening A. S. with an ax (Count 22), hitting A. S. (Count 23), and

hitting A. S. with a back scratcher (Count 24).1 Shepherd challenges the sufficiency

of the evidence as to each count.

1. With respect to Count 3, which alleged that Shepherd committed aggravated

child molestation by placing his mouth on E. S.’s genital area, we are constrained to

agree that the evidence was insufficient. Although E. S. testified that Shepherd tried

1 The jury found Shepherd not guilty of one count of cruelty to children (Count 10).

4 to touch her genital area with his mouth, nothing in her testimony or forensic

interview reveals that he actually placed his mouth there, and the State has pointed

to no evidence supporting the jury’s verdict on this charge. Accordingly, because the

State failed to present sufficient evidence that Shepherd committed aggravated child

molestation as alleged in Count 3, we must reverse his conviction on that charge. See

OCGA § 16-6-4 (c) (“A person commits the offense of aggravated child molestation

when such person commits an offense of child molestation which act physically

injures the child or involves an act of sodomy.”); Williams v. State, 302 Ga. 404, 407-

408 (2) (b) (807 SE2d 418) (2017) (reversing armed robbery conviction where

evidence failed to show that defendant succeeded in taking property from the victim).

2. As to the remaining convictions, the evidence was sufficient. The extensive

proof offered by the State, including the video-recordings of the forensic interviews,

testimony about the children’s various disclosures, and testimony from the children

themselves, authorized the jury to conclude that Shepherd committed aggravated

child molestation, child molestation, attempted child molestation, and cruelty to

children as alleged in Counts 1-2, 4-9, and 11-24 of the indictment. See OCGA § 16-

6-4 (c) (defining aggravated child molestation); OCGA § 16-6-4 (a) (defining child

5 molestation); OCGA § 16-4-1 (defining criminal attempt); OCGA § 16-5-70 (defining

cruelty to children).

On appeal, Shepherd argues that the statements and testimony of the children

were not believable, that the children had been dishonest in the past, and that no

physical evidence corroborated their allegations. Two neighbors and a friend of E. S.,

however, testified that they observed bruises and other injuries on the children, and

the neighbors saw Shepherd kick A. S. Moreover, the jury – not this Court – resolves

evidentiary conflicts and determines the credibility of witnesses. See Patterson v.

State, 350 Ga. App. 540, 543 (1) (829 SE2d 796) (2019). “[T]he resolution of such

conflicts adversely to the defendant does not render the evidence insufficient.” Id.

(citation and punctuation omitted). The jury deemed the children credible, as it was

authorized to do. Accordingly, we affirm the judgments of conviction entered on

Counts 1-2, 4-9, and 11-24. See id.; see also Terry, supra at 457 (1).

Judgment affirmed in part and reversed in part. Barnes, P. J., and Brown, J.,

concur.