SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
December 21, 2012
In the Court of Appeals of Georgia A12A1680. LOPEZ v. THE STATE.
ADAMS, Judge.
Raul Lopez was convicted by a jury of aggravated child molestation, two
counts of rape and three counts of child molestation.1 He filed a motion for new trial,
as amended, which the trial court denied, and then the present appeal. Having
considered his claims of error on appeal, we now affirm.
Construed to support the jury’s verdict, as we must on appeal, the evidence
presented at trial showed the following facts pertinent to the issues raised here:
The victim, who was almost nine years old at the time of trial, testified first. the
victim testified that she was currently living with her mother’s sister in Texas, but that
1 The victim’s mother was also charged with these crimes, but the trial court granted the mother’s motion for directed verdict at trial. she went to kindergarten and first grade in Georgia. She said she remembered talking
to a school counselor and police about Lopez when she was in the first grade, but said
she “forgot” what she had talked to them about. Upon further questioning, she said
she remembered telling people that Lopez2 “had done some things to [her],” but that
“it was a lie because a girl told [her] to say that.” She also said the girl, whose name
she could not remember, did not love her family and that was why she told the victim
to say the things she said about Lopez.
Cathy Koon, a counselor at B. B. Harris Elementary School in Gwinnett
County, testified next. Koon said that she was conducting a “safety lesson” on good
touches, bad touches and nasty touches to the victim’s first grade class when the
victim spontaneously raised her hand and volunteered that someone had touched her
on her “butt” when she was on the school bus. Koon took the victim to her office, and
the victim then disclosed that Lopez touched her on her “biscuit.” Koon asked the
victim to explain what she meant by her biscuit, and the victim said “down there” and
put her hand on the front area of her “private part.” Koon also asked the victim if
anything else happened, and the victim said Lopez put his biscuit on her biscuit.
2 Lopez was the boyfriend of the victim’s mother, and she also referred to him as “dad.”
2 Koon gave the victim a male doll and female doll and asked her to demonstrate what
Lopez did to her; the victim “immediately took the boy doll, placed it on top of the
girl doll and then proceeded to move the doll back and forth and say, uh, uh.” The
victim told Koon that Lopez’s “biscuit” would not fit in her “biscuit” and that he put
his hand over her mouth so she would not make any noise.
Koon then contacted the Gwinnett County Department of Family and Children
Services. Babette Stephens, who at that time was a child protective services
investigator with Gwinnett County DFACS, came to the school and spoke with the
victim. Stephens said that the victim told her that Lopez would come into her room
and they both would undress and get under the covers in bed and that he would rub
his “biscuit” on her “biscuit.” The victim also told her that her mother would be in the
kitchen during this time.
Stephens then contacted the Gwinnett County Police Department Special
Victims Unit, and Sergeant D L. Brewster and Officer Benny McCollough came to
the school and did an initial interview with the victim. This interview, in which the
victim described what Lopez did to her, was audio recorded and played for the jury
at trial. Although the video was audio only, Sergeant Brewster explained to the jury
that male and female “Barbie-type” dolls were used during the interview and the
3 victim used the dolls to demonstrate some of what she was saying, including pointing
to the front groin area of both dolls to show where their biscuits were located. He also
testified that the victim pointed to her chest to explain what her “chi-chis” were, and
that the victim said that Lopez’s penis looked similar to a pencil and was near his
stomach.
Additionally, during the interview the victim told the officers that Lopez would
take his pants off and her dress off and would place his biscuit on her biscuit. The
officers asked the victim whether Lopez placed his biscuit on or in her biscuit and she
said that he placed it in her biscuit. The victim also said that sometimes Lopez placed
his biscuit in her “butt,” and that he kissed her on her mouth and sometimes put his
tongue on her tongue, that he kissed her on her “chi-chis” and that he would
sometimes lick and kiss her biscuit.
The victim was then transported to Gwinnett County Sexual Assault Center
(GSAC) and examined by Denise Proto, who was qualified as an expert in sexual
assault examination. Proto said that, as was her custom, she began the examination
by asking the victim why she was there, and the victim responded that Lopez had
done something to her. Proto asked the victim to elaborate, and she told Proto that
Lopez puts his “biscuit” in her “biscuit.” She indicated to Proto that her biscuit
4 referred to her pubic area and said that Lopez’s biscuit did not look like a biscuit and
was brown, and that it hurt when Lopez put his biscuit on her biscuit. The victim also
told Proto that Lopez grabbed her breasts, which she called her “chi-chis,” and
wiggled them and that they turned red because he wiggled them “hard,” and that
sometimes Lopez put his mouth on her biscuit.
Proto conducted her physical examination of the victim next, and noted that
there was generalized redness around the victim’s vagina. She said this redness was
consistent with what the victim said Lopez did to her, but also said on cross-
examination that the redness could also be attributable to benign causes such as poor
hygiene.
Officer McCollough testified that a warrant was then obtained for Lopez’s
arrest, and that he was arrested at his home, which was in unincorporated Gwinnett
County. However, McCollough said several days later he received a telephone call
from the victim’s mother, who told him the victim wanted to speak to him. He talked
to the victim on the phone, and she told him she wanted to come to police
headquarters so she could tell him she was sorry she had lied to him. The victim came
to the station about three days later, and McCollough spoke to her in an interview
room and taped that interview on a hidden camera. That recording, in which the
5 victim both recanted and affirmed her previous statements concerning the
molestation, was then introduced and played for the jury.
In addition to recanting the allegations she made against Lopez to the police,
the victim also sought out Koon and said she needed to apologize because she had
lied and that it was really her three-year-old brother who had done those things to her.
Likewise, Lopez introduced evidence that employees of the district attorney’s office
talked to the victim on the phone while she was living in Texas, and that conversation
had also been recorded and was played for the jury. In that conversation, the victim
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SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
December 21, 2012
In the Court of Appeals of Georgia A12A1680. LOPEZ v. THE STATE.
ADAMS, Judge.
Raul Lopez was convicted by a jury of aggravated child molestation, two
counts of rape and three counts of child molestation.1 He filed a motion for new trial,
as amended, which the trial court denied, and then the present appeal. Having
considered his claims of error on appeal, we now affirm.
Construed to support the jury’s verdict, as we must on appeal, the evidence
presented at trial showed the following facts pertinent to the issues raised here:
The victim, who was almost nine years old at the time of trial, testified first. the
victim testified that she was currently living with her mother’s sister in Texas, but that
1 The victim’s mother was also charged with these crimes, but the trial court granted the mother’s motion for directed verdict at trial. she went to kindergarten and first grade in Georgia. She said she remembered talking
to a school counselor and police about Lopez when she was in the first grade, but said
she “forgot” what she had talked to them about. Upon further questioning, she said
she remembered telling people that Lopez2 “had done some things to [her],” but that
“it was a lie because a girl told [her] to say that.” She also said the girl, whose name
she could not remember, did not love her family and that was why she told the victim
to say the things she said about Lopez.
Cathy Koon, a counselor at B. B. Harris Elementary School in Gwinnett
County, testified next. Koon said that she was conducting a “safety lesson” on good
touches, bad touches and nasty touches to the victim’s first grade class when the
victim spontaneously raised her hand and volunteered that someone had touched her
on her “butt” when she was on the school bus. Koon took the victim to her office, and
the victim then disclosed that Lopez touched her on her “biscuit.” Koon asked the
victim to explain what she meant by her biscuit, and the victim said “down there” and
put her hand on the front area of her “private part.” Koon also asked the victim if
anything else happened, and the victim said Lopez put his biscuit on her biscuit.
2 Lopez was the boyfriend of the victim’s mother, and she also referred to him as “dad.”
2 Koon gave the victim a male doll and female doll and asked her to demonstrate what
Lopez did to her; the victim “immediately took the boy doll, placed it on top of the
girl doll and then proceeded to move the doll back and forth and say, uh, uh.” The
victim told Koon that Lopez’s “biscuit” would not fit in her “biscuit” and that he put
his hand over her mouth so she would not make any noise.
Koon then contacted the Gwinnett County Department of Family and Children
Services. Babette Stephens, who at that time was a child protective services
investigator with Gwinnett County DFACS, came to the school and spoke with the
victim. Stephens said that the victim told her that Lopez would come into her room
and they both would undress and get under the covers in bed and that he would rub
his “biscuit” on her “biscuit.” The victim also told her that her mother would be in the
kitchen during this time.
Stephens then contacted the Gwinnett County Police Department Special
Victims Unit, and Sergeant D L. Brewster and Officer Benny McCollough came to
the school and did an initial interview with the victim. This interview, in which the
victim described what Lopez did to her, was audio recorded and played for the jury
at trial. Although the video was audio only, Sergeant Brewster explained to the jury
that male and female “Barbie-type” dolls were used during the interview and the
3 victim used the dolls to demonstrate some of what she was saying, including pointing
to the front groin area of both dolls to show where their biscuits were located. He also
testified that the victim pointed to her chest to explain what her “chi-chis” were, and
that the victim said that Lopez’s penis looked similar to a pencil and was near his
stomach.
Additionally, during the interview the victim told the officers that Lopez would
take his pants off and her dress off and would place his biscuit on her biscuit. The
officers asked the victim whether Lopez placed his biscuit on or in her biscuit and she
said that he placed it in her biscuit. The victim also said that sometimes Lopez placed
his biscuit in her “butt,” and that he kissed her on her mouth and sometimes put his
tongue on her tongue, that he kissed her on her “chi-chis” and that he would
sometimes lick and kiss her biscuit.
The victim was then transported to Gwinnett County Sexual Assault Center
(GSAC) and examined by Denise Proto, who was qualified as an expert in sexual
assault examination. Proto said that, as was her custom, she began the examination
by asking the victim why she was there, and the victim responded that Lopez had
done something to her. Proto asked the victim to elaborate, and she told Proto that
Lopez puts his “biscuit” in her “biscuit.” She indicated to Proto that her biscuit
4 referred to her pubic area and said that Lopez’s biscuit did not look like a biscuit and
was brown, and that it hurt when Lopez put his biscuit on her biscuit. The victim also
told Proto that Lopez grabbed her breasts, which she called her “chi-chis,” and
wiggled them and that they turned red because he wiggled them “hard,” and that
sometimes Lopez put his mouth on her biscuit.
Proto conducted her physical examination of the victim next, and noted that
there was generalized redness around the victim’s vagina. She said this redness was
consistent with what the victim said Lopez did to her, but also said on cross-
examination that the redness could also be attributable to benign causes such as poor
hygiene.
Officer McCollough testified that a warrant was then obtained for Lopez’s
arrest, and that he was arrested at his home, which was in unincorporated Gwinnett
County. However, McCollough said several days later he received a telephone call
from the victim’s mother, who told him the victim wanted to speak to him. He talked
to the victim on the phone, and she told him she wanted to come to police
headquarters so she could tell him she was sorry she had lied to him. The victim came
to the station about three days later, and McCollough spoke to her in an interview
room and taped that interview on a hidden camera. That recording, in which the
5 victim both recanted and affirmed her previous statements concerning the
molestation, was then introduced and played for the jury.
In addition to recanting the allegations she made against Lopez to the police,
the victim also sought out Koon and said she needed to apologize because she had
lied and that it was really her three-year-old brother who had done those things to her.
Likewise, Lopez introduced evidence that employees of the district attorney’s office
talked to the victim on the phone while she was living in Texas, and that conversation
had also been recorded and was played for the jury. In that conversation, the victim
said she lied to Koon and the police because a “girl told her to . . . .”
1. Lopez first argues that the testimony given by Koon, the police officers and
Proto improperly bolstered the testimony of the victim. However, the testimony of
these witnesses was presented after the victim testified she lied when she said that
Lopez committed various sexual acts against her. Thus, the testimony of these
witnesses contradicted rather than bolstered the victim’s testimony, and was properly
admitted over defense counsel’s vigorous objection.3 “[Our Supreme Court has]
rejected the assertion that ‘a prior inconsistent statement is admissible only if the
3 The transcript shows that the proper foundation was laid prior to the admission of these statements. See OCGA § 24-9-83.
6 witness denies making the prior statement, but not if [the witness] simply disputes the
truth of the earlier statement. There is no such “denial” requirement under (OCGA §
24-9-83).” (Punctuation and citation omitted.) Johnson v. State, 289 Ga. 106, 108 (3)
(709 SE2d 768) (2011). Bryant v. State, 288 Ga. 876, 885 (8) (a) (708 SE2d 362)
(2011); Wilson v. State, 286 Ga. 141, 142 (2) (686 SE2d 104) (2009); Warner v.
State, 281 Ga. 763, 766 (3) (642 SE2d 821) (2007). Further, as the State points out,
this testimony was admissible under the Child Hearsay Statute as well. OCGA § 24-3-
16. Metts v. State, 297 Ga. App 330, 337 (7) (677 SE2d 377) (2009). This
enumeration is thus without merit.
2. Lopez also argues that the evidence was insufficient to prove venue in
Gwinnett County. We disagree. Although it is true that in Georgia venue is a
jurisdictional fact that must be proved beyond a reasonable doubt, it is likewise true
that “[t]he state may establish venue by whatever means of proof are available to it,
and it may use both direct and circumstantial evidence.” Barkley v. State, 302 Ga.
App. 437, 437-438 (691 SE2d 306) (2010). Hargrave v. State, 311 Ga. App. 852, 853
(1) (717 SE2d 485) (2011), quoting Stegall v. State, 308 Ga. App. 666, 666-667 (2)
(708 SE2d 387) (2011).
7 In this case, several witnesses testified concerning where the crimes took place.
First, although the victim, would have been six years old at that time, did not know
which county she lived in when she lived in Georgia, she did recall that she lived with
Lopez, her mother and her siblings and said she could not remember living in any
other house except the house they lived in then. The victim also told several witnesses
that the sexual abuse happened in a room where they would get into a bed and that
during that time her mother would be in the kitchen.
Additionally, Koon testified that all students who attend the school the victim
was attending at the time she made the disclosure were required to live in Gwinnett
County. And the DFACS worker testified that she established that the victim lived
with Lopez, her mother and her siblings, and that the home was located in Gwinett
County. Further, Officer McCullough testified that Lopez was arrested at his home
in unincorporated Gwinnett County;
Notwithstanding Lopez’s attempt to parse the evidence, we find that, taken as
a whole and construed to support the verdict, this and other evidence presented at trial
was sufficient to establish venue in Gwinnett County beyond a reasonable doubt.
State v. Prescott, 290 Ga. 528, 529-530 (722 SE2d 738) (2012); Gaston v. State, ___
Ga. App. ___ (2) (731 SE2d 79) (2012); Boyd v. State, 314 Ga. App. 883, 885 (2)
8 (726 SE2d 135) (2012); Hargrave, 311 Ga. App. at 854 (1); Stegall v. State, 308 Ga.
App. 666, 666-667 (2) (708 SE2d 387) (2011).
3. Lopez also challenges the sufficiency of the evidence to convict him of rape.
Pursuant to OCGA § 16-6-1 (a) (2), “[a] person commits the offense of rape when he
has carnal knowledge of . . . [a] female who is less than ten years of age.” And
“[c]arnal knowledge in rape occurs when there is any penetration of the female sex
organ by the male sex organ.” OCGA § 16-6-1 (a). “Under the established rule in this
State, the penetration . . . necessary to constitute rape . . . need only be slight; it is not
necessary that the vagina shall be entered or the hymen ruptured, but an entering of
the anterior of the organ, known as the vulva or labia, is sufficient.” (Punctuation and
citations omitted.) Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974). Although
the victim in this case stated that Lopez placed his “biscuit,” both on her “biscuit,”
and in her biscuit, when specifically questioned during the police interview she said
that Lopez placed his biscuit in her biscuit. Further, she told Proto that Lopez “takes
his biscuit and puts it in my biscuit” and stated there was pain associated with this act.
And the sexual assault examination revealed redness surrounding the vagina, and
Proto testified that this redness was consistent with what the victim said Lopez did
9 to her. We find this evidence, construed to support the jury’s verdict, was sufficient
to support Lopez’s conviction for the offense of rape.
3. Lastly, Lopez argues that the evidence was insufficient to convict him of
aggravated child molestation and child molestation because the victim recanted her
statements. However, her prior inconsistent statements to these witnesses were
properly admissible as substantive evidence of Lopez’s guilt of the crimes charged,
and it was for the jury to decide whether to believe the victim when she said she lied
to these witnesses or whether to believe her original statements to them. Gibbons v.
State, 248 Ga. 858 (286 SE2d 717) (1982); see Cheek v. State, 265 Ga. App. 15 (1)
(593 SE2d 55) (2003). The jury obviously chose to believe the allegations of
molestation and rape, and the evidence presented was sufficient to support their
verdict.
Judgment affirmed. Barnes, P. J., and McFadden, J., concur.