Citation Codes

Equivalent Citations

citation codes

Docket Number

A95A0080.

Attorney(S)

Bennett Hamilton, L. Hamilton Bennett III, for appellant. Ralph Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

Judges

McMURRAY, Presiding Judge.

See more information ...

Smart Summary

Summary of Opinion: Bragg v. The State, A95A0080 (Ct. App. Ga., Apr. 27, 1995)

Court: Court of Appeals of Georgia

Date Decided: April 27, 1995

Judge: McMurray, Presiding Judge (opinion); Catoosa Superior Court below, Judge Loggins

Counsel: Bennett Hamilton and L. Hamilton Bennett III for appellant; Ralph Van Pelt, Jr., District Attorney, and Melodie S. Bedford, Assistant District Attorney, for appellee.

Factual and Procedural Background

Defendant Bragg was convicted in Catoosa Superior Court of multiple offenses arising from incidents involving children: two counts of aggravated child molestation, seven counts of child molestation, and two counts of enticing a child for indecent purposes. He appealed those convictions to the Court of Appeals of Georgia. The indictment alleged, as to the enticing counts, that the defendant enticed named children to a particular room for the purpose of showing a pornographic film. The trial evidence established that the defendant showed a videotape of a pornographic film to the children, but the evidence was silent as to how the children came to be in the room and before the television. Several child-molestation counts alleged touching of the children's genital areas or breasts through their clothing; evidence included recurring incidents and similar conduct. On appeal, the Court addressed (1) whether the evidence proved the asportation element required for the two enticing counts under OCGA § 16-6-5, and (2) whether the evidence was sufficient to sustain convictions on four specified counts of child molestation (Counts 7, 8, 9, and 11). The Court ultimately affirmed in part and reversed in part.

Legal Issues Presented

Whether the State proved the asportation element of the offense of enticing a child for indecent purposes (OCGA § 16-6-5) sufficient to support the defendant's two convictions on those counts.
Whether the evidence was sufficient, under the standard articulated in Jackson v. Virginia, to authorize convictions on four counts (Counts 7, 8, 9 and 11) of child molestation involving touching through clothing.

Arguments of the Parties

Appellant's Arguments (Defendant Bragg)

Challenged the two convictions for enticing a child for indecent purposes on the ground that the State failed to prove the asportation element of that offense (i.e., there was no evidence the defendant caused movement of the children to the viewing location).
Argued that the contacts constituting four child-molestation counts (Counts 7, 8, 9, and 11) were inadvertent and occurred in the course of wrestling and playing with the children, and therefore no rational trier of fact could find guilt beyond a reasonable doubt.

Appellee's Arguments (The State)

The State contended that the asportation element for the enticing counts was satisfied by evidence that the defendant threatened to punish the children if they left or attempted to leave during the showing of the movie.
The State maintained that the evidence, viewed in the light most favorable to the verdict, was sufficient to support convictions on the child-molestation counts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Morris v. State, 179 Ga. App. 228, 229 (345 S.E.2d 686)	Stated that any asportation, however slight, is sufficient to establish the asportation element of enticing a child.	The Court cited Morris to define that asportation need only be slight but concluded that, on the record, there was no evidence showing the defendant caused movement toward the viewing place.
Cimildoro v. State, 259 Ga. 788, 789 (387 S.E.2d 335)	Explained that the asportation element is satisfied whether the taking involves physical force, enticement, or persuasion.	The Court relied on Cimildoro to describe permissible means of asportation but found none of those means were shown by the evidence here.
Sanders v. State, 145 Ga. App. 73 (243 S.E.2d 274) (1978)	Discussed requirement that the defendant himself enticed victims onto the premises with present intent to commit indecent acts; absence of such proof defeats conviction under OCGA § 16-6-5.	The Court invoked Sanders to support the proposition that, absent proof the defendant enticed victims onto premises with present intent to molest, convictions cannot stand; applied that principle to reverse the enticing convictions.
Lasseter v. State, 197 Ga. App. 498 (399 S.E.2d 85)	Applied the same principle as Sanders regarding the asportation/enticement requirement for OCGA § 16-6-5 convictions.	The Court cited Lasseter as precedent supporting reversal of the enticing convictions where there was no evidence the defendant caused the victims to move to the place of viewing with present intent to commit indecent acts.
Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L. Ed. 2d 560)	Articulates the standard for reviewing sufficiency of the evidence: whether, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt.	The Court applied the Jackson standard in evaluating the sufficiency of evidence for the four child-molestation counts and found the evidence adequate to support convictions.
Ramsey v. State, 214 Ga. App. 743, 744 (448 S.E.2d 790)	Applied the Jackson sufficiency-of-evidence principle in Georgia cases.	The Court cited Ramsey alongside Jackson to affirm that the evidence, when viewed favorably to the verdict, authorized a rational trier of fact to find guilt on the four specified counts of child molestation.

Court's Reasoning and Analysis

1. Enticing Counts (Two Counts — OCGA § 16-6-5):

The Court began by restating the statutory and doctrinal standard for the asportation element: while any asportation, however slight, can suffice (Morris), and such asportation may occur by force, enticement, or persuasion (Cimildoro), the prosecution must produce evidence that the defendant caused movement of the child toward the place of indecent activity.
The indictment alleged that the defendant enticed the children to a room to show a pornographic film; the trial record, however, only established that a videotape was shown but was silent on how the children came to be in the room or before the television.
The State argued that threats by the defendant to punish children if they left during the movie satisfied asportation. The Court examined that argument and found no authority supporting the proposition that threats to keep children from leaving constitute the asportation element (which concerns movement toward a location).
The Court emphasized the doctrinal focus on movement: because there was no evidence that the defendant caused the children to move toward the viewing location, the asportation element was not proved. Relying on Sanders and Lasseter, the Court concluded that in the absence of evidence the defendant himself enticed the victims onto the premises with present intent to commit indecent acts, the enticing convictions could not stand.
Accordingly, the Court reversed the two convictions for enticing a child for indecent purposes for lack of proof of asportation.

2. Child Molestation Counts (Counts 7, 8, 9 and 11):

The defendant contended the touching incidents were inadvertent, occurring during wrestling and play, and therefore insufficient to sustain convictions beyond a reasonable doubt.
The Court reviewed the evidence in the light most favorable to the prosecution, applying the Jackson v. Virginia standard (as reinforced by Ramsey), and noted recurring and continuing incidents of touching the three victims as well as evidence of similar conduct that illustrated the defendant's state of mind and pattern.
Finding that any hypothesis of innocent conduct was contradicted by the pattern and repetition of inappropriate touching, the Court concluded a rational trier of fact could find the defendant guilty beyond a reasonable doubt on the four specified counts of child molestation involving touching through clothing.
Accordingly, the Court affirmed the convictions on Counts 7, 8, 9, and 11.

Holding and Implications

Disposition: Judgment affirmed in part and reversed in part.

Direct consequences for the parties:

The Court reversed the defendant's two convictions for enticing a child for indecent purposes because the State failed to prove the asportation element required by OCGA § 16-6-5 (there was no evidence the defendant caused the children to move to the place of viewing with present intent to commit indecent acts).
The Court affirmed the defendant's convictions on four counts of child molestation (Counts 7, 8, 9, and 11) because the recurring incidents and evidence of similar conduct permitted a rational trier of fact to find guilt beyond a reasonable doubt under Jackson v. Virginia.

Broader implications:

The opinion applies existing Georgia and federal sufficiency standards and precedents concerning asportation and sufficiency review; it does not announce a novel rule of law. The Court's disposition resolves the convictions in this case by reversing those based on insufficient asportation evidence and affirming those supported by evidence of recurring and patterned touching.

Show full summary ...

BRAGG v. THE STATE.

McMURRAY, Presiding Judge.

Defendant Bragg appeals his convictions of two counts of aggravated child molestation, seven counts of child molestation, and two counts of enticing a child for indecent purposes. Held:

1. The first enumeration of error attacks defendant's conviction of two counts of enticing a child for indecent purposes on the theory that the state has failed to prove the asportation element of the crime. See OCGA § 16-6-5. Any asportation, however slight, is sufficient to show this element. Morris v. State, 179 Ga. App. 228, 229 (4) ( 345 S.E.2d 686). "[T]he `asportation' element of the offense is satisfied whether the `taking' involves physical force, enticement, or persuasion." Cimildoro v. State, 259 Ga. 788, 789 (1) ( 387 S.E.2d 335). "Accordingly, in the absence of sufficient probative evidence that appellant himself enticed the victims onto the premises with the present intention to commit acts of indecency or child molestation after they had been enticed there, his convictions for violating OCGA § 16-6-5 cannot stand. Sanders v. State, 145 Ga. App. 73 ( 243 S.E.2d 274) (1978)." Lasseter v. State, 197 Ga. App. 498 (1) ( 399 S.E.2d 85).

The relevant counts of the indictment alleged that defendant enticed the named children to a certain room for the purpose of showing a pornographic film. The evidence at trial was that defendant did show a videotape of such a film to the children named but is entirely silent as to how the children came to be in the room and before the television. The State argues that the required asportation is satisfied by evidence that defendant threatened to punish the children if they left or attempted to leave during the movie. However, no authority is cited and we are unable to find any which supports this theory. The concept of asportation relates to movement and there is no evidence that defendant caused the children to move towards the place from which they would view the movies. Therefore, we hold that there was no evidence authorizing defendant's convictions on the two counts of enticing a child for indecent purposes. Lasseter v. State, 197 Ga. App. 498 (1), supra.

2. The remaining enumeration of error questions the sufficiency of the evidence to authorize defendant's convictions on four counts (Counts 7, 8, 9 and 11) of child molestation involving the touching of the children's genital areas or breasts through their clothing. Defendant argues that these contacts with the children occurred inadvertently in the course of his wrestling and playing with the children and that no rational trier of fact could have found proof of child molestation beyond a reasonable doubt. We disagree, and find the evidence sufficient to authorize defendant's conviction on all four of these counts of child molestation. Any hypothesis of innocent conduct on the part of defendant is contradicted by the recurring and continuing incidents of touching the three victims of these four crimes, and by the evidence of similar conduct which illustrated defendant's state of mind and pattern of conduct. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find defendant guilty beyond a reasonable doubt of four counts (7, 8, 9, and 11) of the offense of child molestation. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560); Ramsey v. State, 214 Ga. App. 743, 744 (1) ( 448 S.E.2d 790).

Judgment affirmed in part and reversed in part. Andrews and Blackburn, JJ., concur.

DECIDED APRIL 27, 1995.

BRAGG v. STATE