Sewell v. State

536 S.E.2d 173, 244 Ga. App. 449, 2000 Fulton County D. Rep. 2855, 2000 Ga. App. LEXIS 747
CourtCourt of Appeals of Georgia
DecidedJune 13, 2000
DocketA00A0040
StatusPublished
Cited by12 cases

This text of 536 S.E.2d 173 (Sewell 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
Sewell v. State, 536 S.E.2d 173, 244 Ga. App. 449, 2000 Fulton County D. Rep. 2855, 2000 Ga. App. LEXIS 747 (Ga. Ct. App. 2000).

Opinion

536 S.E.2d 173 (2000)
244 Ga. App. 449

SEWELL
v.
The STATE.

No. A00A0040.

Court of Appeals of Georgia.

June 13, 2000.

*175 Leonard Danley, Douglasville, for appellant.

David McDade, District Attorney, William J. Atkins, Assistant District Attorney, for appellee.

*174 MILLER, Judge.

Thomas Edward Sewell was tried before a jury and found guilty of aggravated sodomy (Count 1), sexual battery as a lesser included offense to aggravated sodomy (Count 2), child molestation (Counts 3 through 7), and attempted child molestation (Count 8) for sexual acts directed at M.L. and C.W. On appeal, his six enumerations of error (1) challenge the sufficiency of the evidence; and complain of (2) improper bolstering; (3) the admission of similar or extrinsic acts; (4) restrictions on cross-examination; (5) the trial court's refusal to permit defense counsel to review documents with which an expert witness refreshed his recollection; and (6) the admission of evidence as to how a police investigator determines whether a child is truthful. Except for the attempted child molestation alleged in Count 8, we affirm.

Viewed in the light most favorable to the jury's verdicts, the evidence revealed the following: Over the weekend of July 5, 1996, the then 14-year-old victim, M.L., was to spend the night at the home of his second cousin, defendant Sewell, and his wife. After watching television that evening, M.L. went to sleep wearing a pair of boxer shorts Sewell gave him. He later awoke to find Sewell kneeling beside the bed and felt "something go down [his] pants." M.L. was scared and tried to push Sewell away with his hands. Sewell started kissing M.L. all over and trying to take the boy's clothes off. Sewell then committed an act of oral sodomy on M.L. Sewell got on top of M.L. and pinned his hands and legs down. Using his hands, Sewell masturbated both M.L. and himself to the point of climax. Sewell also tried to commit an act of anal sodomy, where M.L. felt something wet going in the back of him. After 15 or 20 minutes, M.L. curled up against the wall and went to sleep.

The next morning when M.L. awoke, Sewell was still with him in bed, and defendant started kissing M.L. and putting his hands down M.L.'s pants, touching M.L.'s genitals and touching himself. After M.L. got dressed, Sewell accosted him in the kitchen, pushed M.L. up against the wall, and told him he better not tell anyone. Although there were telephones in the Sewell residence, M.L. felt defendant was always near so M.L. could not call anyone.

Saturday, Sewell showed M.L. the church where defendant was the preacher. There, M.L. met C.W., a boy who sang in the choir. It was arranged that C.W. would spend the night with M.L. at Sewell's. The boys shared the same room M.L. slept in the night *176 before. M.L. again awoke in the middle of the night with Sewell kneeling beside the boy's bed, trying to kiss M.L. and rubbing him all over. M.L. resisted, and Sewell left after M.L. said he would wake up C.W. M.L. went back to sleep, but Sewell again awakened M.L., kissing M.L. on the lips and chest. Sewell started removing the boy's pants and committed an act of oral sodomy and masturbated the boy. M.L. ran downstairs and saw C.W. asleep on the sofa. M.L. told Sewell that he would wake C.W. if Sewell did not leave M.L. alone. M.L. eventually returned to the upstairs bedroom, and Sewell did not bother him further. Sunday night, after M.L. was home, he told his mother what Sewell had done to him.

In a taped interview, C.W. confirmed that Sewell had sent C.W. back downstairs to sleep on the couch. There, Sewell had touched C.W.'s private parts inside C.W.'s clothes. C.W. kicked at Sewell who left and went back upstairs and "was messing with [M.L.]" After 30 minutes, M.L. came downstairs yelling at Sewell to leave him alone, stop touching him, or he would tell his mother when he got home. Sewell picked up M.L. and took him back upstairs.

Defendant's first cousin, John Franklin Sewell, related earlier incidents when defendant fondled and kissed defendant's then ten-year-old cousin and further described two attempts by defendant to commit anal sodomy on him. One such attempt was witnessed by Timothy Eugene Sewell.

1. The first enumeration urges the general grounds. Sewell argues the evidence is insufficient because M.L. was not a credible witness and because M.L.'s testimony conflicts with Sewell's own.

(a) On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence.[1] An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.[2] Any conflict in the testimony of the witnesses, including the State's witnesses, is a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.[3]

(b) A person commits child molestation when he "does any immoral or indecent act to or in the presence of or with any child under the age of 16 years,"[4] with the intent to arouse or satisfy the sexual desires of either the child or the person. A person commits aggravated child molestation by any act of child molestation "which act physically injures the child or involves an act of sodomy." [5] And a person commits the offense of criminal attempt when, "with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime."[6]

(c) "The testimony of a single witness is generally sufficient to establish a fact."[7] Specifically, "[t]here is no requirement that the testimony of the victim of child molestation or aggravated child molestation be corroborated."[8] Nevertheless, in this case the testimony of M.L. is corroborated by his outcry to his mother[9] and by the witness C.W.[10] And the circumstances related *177 by M.L. corroborate the testimony of Sewell's indecent liberties with C.W. The evidence is sufficient to authorize the jury's verdicts that Sewell committed aggravated child molestation as alleged in Count 1[11] and sexual battery as a lesser included offense to the aggravated child molestation alleged in Count 2.[12] The evidence is also sufficient to authorize the jury's verdicts that Sewell is guilty, beyond a reasonable doubt, of the acts of child molestation alleged in Counts 2, 4, 5, 6, and 7.[13] But as to the criminal attempt alleged in Count 8,[14] in our view the evidence shows the completed offense of the intended molestation and not any subsequent attempt, because Sewell had already committed the Saturday night molestations when M.L. fled and found C.W. downstairs. While a person can be convicted of criminal attempt upon proof of the completed offense, he "may not be convicted of both the criminal attempt and the completed crime."[15] Consequently, we reverse the judgment of conviction as to Count 8 because that criminal attempt to commit child molestation is subsumed into the separate consummated crime for which Sewell was also convicted.

2. A licensed psychologist evaluated M.L. and performed a battery of tests upon him.

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Bluebook (online)
536 S.E.2d 173, 244 Ga. App. 449, 2000 Fulton County D. Rep. 2855, 2000 Ga. App. LEXIS 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sewell-v-state-gactapp-2000.