Narcis Pavlov v. State ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, 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.
https://www.gaappeals.us/rules
March 2, 2022
In the Court of Appeals of Georgia
A21A1246. PAVLOV v. THE STATE.
PINSON, Judge.
After a jury trial, Narcis Pavlov was convicted of three counts of aggravated
child molestation, three counts of child molestation, and one count of false
imprisonment. He now appeals, challenging the sufficiency of the evidence as to one
child molestation count and as to venue for incidents that took place at a gas station;
the trial court’s failure to merge the three child molestation convictions and the three
aggravated child molestation convictions into single units for sentencing; and the trial
court’s amendment of its written sentencing order.
We affirm the convictions and sentence. With respect to his sufficiency
arguments, a rational trier of fact could conclude beyond a reasonable doubt that
Pavlov’s initial act of kissing M. M.’s neck while sleeping in her bed was “immoral
or indecent” and intended intent to arouse his sexual desire, and that Pavlov stopped
at a gas station in Fulton County when driving M. M. from her home located in
Fulton County from a movie theater located in Fulton County. As for the merger
arguments, the three child molestation counts were properly treated as separate units
of prosecution because the acts in question occurred on different days within a period
of more than a year, not in a “single uninterrupted course of conduct.” And the three
aggravated child molestation counts were properly kept separate because each was
a distinct act of sodomy. Finally, the court properly amended its original written
sentencing order to conform to its oral ruling as well as statutory guidelines regarding
split sentences.
Background
When M. M. was between 9 and 10 years old, she lived in a house on Pony Tail
Road with her mother, step-father, and other extended family, including Pavlov, her
step-father’s father. M. M. testified that while Pavlov lived in their home, he
occasionally slept in her room on a mattress on the floor when she was “scared.”
M. M. described that Pavlov then began sleeping in her bed and, over the
course of several nights, he sexually abused her. Pavlov slept in her bed the first night
and kissed her on the neck while M. M. remained still because she was scared. The
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next night, he fondled her breasts and penetrated her vagina with his fingers. M. M.
testified that she then went to the bathroom and when she came back to bed, Pavlov
pinned her down with his hands and performed oral sex on her. M. M. testified that
on a third night, Pavlov again penetrated her vagina with his fingers, made her
perform oral sex on him, and placed his penis on her vagina and bottom.
M. M. described another occasion where Pavlov took her to a movie theater
near her house. M. M. fell asleep on the ride home, and awoke to find them parked
at a gas station parking lot where Pavlov kissed her and felt her breasts under her shirt
while she pretended to remain asleep.
M. M. then disclosed the abuse to her mother and step-father. A forensic
interview was conducted with M. M., which was introduced to the jury. A therapist
testified that M. M. disclosed that she had been sexually abused by Pavlov in her
bedroom and once in a car coming back from a movie.
The jury convicted Pavlov on all but two charges: three counts of aggravated
child molestation (Counts 1-3), one count of aggravated sexual battery (Count 4),
three counts of child molestation (Counts 6, 8, and 9) and one count of false
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imprisonment (Count 10).1 . Pavlov moved for a new trial, and the trial court vacated
his conviction on the count of aggravated sexual battery but otherwise denied the
motion. Pavlov now appeals.2
Discussion
1. Pavlov contends that the evidence was insufficient for a conviction in two
respects. We review the sufficiency of the evidence by determining whether a rational
trier of fact could have found the defendant guilty beyond a reasonable doubt.
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). In doing so,
we do not “reweigh evidence or resolve conflicts in testimony; instead, evidence is
reviewed in a light most favorable to the verdict, with deference to the jury’s
assessment of the weight and credibility of the evidence.” Harper v. State, 298 Ga.
158, 158 (780 SE2d 308) (2015) (citation and punctuation omitted).
1
Pavlov was acquitted of one count of child molestation and one count
aggravated sexual battery (Counts 5 and 7).
2
This appeal comes to us on interlocutory review. This is because a criminal
case remains pending below when one or more counts of a multi-count indictment
have not been resolved, and so review of the resolved counts can be had only by
obtaining a certificate of immediate review and filing an interlocutory application.
Seals v. State, 311 Ga. 739, 741–47 (2)-(3) (860 SE2d 419) (2021); see OCGA §
5-6-34 (b).
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(a) Pavlov first contends that the evidence was insufficient to support his
conviction for child molestation as alleged in Count 6. Count 6 alleged that Pavlov
committed child molestation by placing his mouth on M. M.’s neck with the intent
to arouse and satisfy his own sexual desires. Pavlov does not claim that the evidence
was insufficient to show that the act occurred, but rather that the evidence was
insufficient to show that the act was immoral or indecent or intended to arouse his
sexual desires, as required by the child molestation statute, OCGA § 16-6-4 (a). We
disagree.
The child molestation statute prohibits any “immoral or indecent” act done to
or in the presence of a child under the age of 16 with the intent to “arouse or satisfy
the sexual desires or either the child or the person.” OCGA § 16-6-4 (a) (1). The
determination whether a particular act is “immoral or indecent” is a jury question that
“may be determined in conjunction with the intent that drives the act.” Slack v. State,
265 Ga. App. 306, 307 (1) (593 SE2d 664) (2004) (footnote omitted). Accord
Cornelius v. State, 213 Ga. App. 766, 768 (1) (445 SE2d 800) (1994) (in child
molestation cases, the jury must determine whether an act was immoral or indecent
and if it was committed with the requisite criminal intent). Further, “[t]he testimony
of a single witness is generally sufficient to establish a fact.” OCGA § 24-14-8.
5
Here, the evidence was sufficient for a rational trier of fact to conclude beyond
a reasonable doubt that acts alleged in Count 6 were “immoral or indecent” and
intended to arouse Pavlov’s sexual desires. M. M. testified that Pavlov kissed her
neck while sleeping in her bed, and it made her uncomfortable and scared. It also
began a pattern of behavior in which, on later nights, Pavlov engaged in further acts
of child molestation, including fondling her breasts and vagina and performing oral
sex on her. This evidence was enough to allow a rational trier of fact to conclude that
Pavlov’s initial act of kissing M. M.’s neck while sleeping in her bed was “immoral
or indecent” and intended intent to arouse his sexual desires. See Jackson, 443 U. S.
at 319 (III) (B). Accord Gonzalez v. State, 359 Ga. App. 147, 149 (1) (a) (857 SE2d
88) (2021) (evidence was sufficient to support jury’s finding that defendant’s
touching of victim’s buttocks in a swimming pool was an immoral or indecent act
performed with the intent to arouse his sexual desires); Thomas v. State, 324 Ga. App.
26, 28 (748 SE2d 509) (2013) (evidence sufficient to establish that defendant
committed an immoral or indecent act by kissing an eleven-year-old victim on the
lips, thus supporting conviction for child molestation).
(b) Pavlov also contends that there was insufficient evidence to establish venue
for the crimes alleged to have occurred at the gas station. We disagree.
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A criminal case must be tried “in the county where the crime was committed.”
Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. “Venue is a jurisdictional fact, and is an
essential element in proving that one is guilty of the crime charged. Like every other
material allegation in the indictment, venue must be proved by the prosecution
beyond a reasonable doubt.” In the Interest of D. D., 287 Ga. App. 512, 513 (2) (651
SE2d 817) (2007) (citation and punctuation omitted). As with any other fact, “[t]he
State may meet its burden at trial using either direct or circumstantial evidence, and
the determination of whether venue has been established is an issue soundly within
the province of the jury.” Worthen v. State, 304 Ga. 862, 865 (3) (a) (823 SE2d 291)
(2019) (citation and punctuation omitted). The standard of appellate review to
determine whether venue was sufficiently proven is the same as for any other
sufficiency review: whether, in the light most favorable to the prosecution, any
rational trier of fact could have found venue beyond a reasonable doubt. Boyd v.
State, 351 Ga. App. 469, 472 (2) (b) (829 SE2d 163) (2019).
Here, the indictment does not specify the location where the crimes took place,
and stated only that they occurred in Fulton County. An officer testified that M. M.’s
home was in Fulton County. The officer also testified that he believed that the movie
theater was also in Fulton County because M. M. described it as being a Regal
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Cinemas close to her house and the only Regal Cinemas located outside Fulton
County would have been a long drive from her house. M. M. testified that she fell
asleep on the drive home from the movie theater, and that she awoke to find Pavlov
molesting her in a gas station parking lot.
It is clear that M. M. did not know precisely the location of the gas station
because she was asleep during the drive from the movie theater. However, OCGA §
17-2-2 (e) provides that “[i]f a crime is committed upon any . . . vehicle . . . traveling
within this state and it cannot readily be determined in which county the crime was
committed, the crime shall be considered as having been committed in any county in
which” it could have been committed through which the vehicle has traveled. Further,
OCGA § 17-2-2 (h) provides that “[i]f in any case it cannot be determined in what
county a crime was committed, it shall be considered to have been committed in any
county in which the evidence shows beyond a reasonable doubt it might have been
committed.” See Hendrix v. State, 242 Ga. App. 678, 680 (1) (530 SE2d 804) (2000)
(sufficient evidence of venue when there was testimony that the defendant was
driving in a car “headed back into town” to Savannah and Chatham County when the
crime occurred). The jury was authorized to conclude that Pavlov stopped at a gas
station in Fulton County when driving M. M. from her home located in Fulton County
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from a movie theater located in Fulton County. See Sewell v. State, 302 Ga. App. 151,
155 (3) (690 SE2d 634) (2010) (venue as to defendant’s act of shooting victim was
sufficiently proven under OCGA § 17-2-2 (e) and (h) when defendant testified that
she drove for an undetermined amount of time from the place where she was sexually
assaulted to the place where she was shot).
3. Pavlov contends that the trial court erred by failing to merge his child
molestation convictions and his aggravated child molestation convictions together as
a unit of prosecution for the purposes of sentencing. We disagree.
(a) Child Molestation (Counts 6, 8 and 9). Pavlov contends that the trial court
erred by failing to merge his child molestation convictions for sentencing purposes.
Pavlov relies on Scott v. State, 356 Ga. App. 152 (846 SE2d 241) (2020) to support
his assertion that his convictions for child molestation should merge because they
arose out of the same “short series of transactions in the same location.”3 In Scott, this
Court applied “unit of prosecution” analysis to the statute defining child molestation,
OCGA § 16-6-4 (a) (1), to determine whether convictions for child molestation, based
3
The indictment describes the child molestation charges as follows: Count 6
(alleging child molestation for placing his mouth on the child’s neck), Count 7
(alleging child molestation for placing his mouth on the child’s mouth), Count 8
(alleging child molestation for placing his hands on the child’s genital area) and
Count 9 (alleging child molestation for placing his hands on the child’s breasts)
9
on touching various body parts of the victim “within a relatively short time frame and
in a single uninterrupted course of conduct,” should merge for sentencing. Scott, 356
Ga. App. at 152. This Court concluded that the rule of lenity required that the
ambiguity be resolved in favor of the defendant, and thus, the three child molestation
counts should have merged because they were based on his touching of three parts of
the victim’s body during a single uninterrupted incident. Id at 163 (5).
But Pavlov’s case is different. His argument is “premised on a fundamental
misrepresentation of the evidence,” namely, that Pavlov engaged in a single act of
child molestation. Spires v. State, 357 Ga. App. 440, 449 (5) (850 SE2d 854) (2020).
This is not a case in which the sexual acts alleged in the different counts were part of
a “single uninterrupted course of conduct.” Scott, 356 Ga. App. at 152. Rather, the
indictment alleged that the various sexual contacts occurred sometime “between the
1st day of January, 2009 and the 31st day of December, 2010,” and M. M.’s testimony
shows that Pavlov kissed her on the neck as well as fondled her breasts and genitals
on several separate nights in her bedroom as well as in the car while parked at the gas
station. See Spires, 357 Ga. App. at 450 (5) (conviction for child molestation did not
merge into conviction for aggravated child molestation because sexual acts alleged
in different counts were not part of a single course of conduct occurring over a
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relatively short time, but rather occurred on a number of different occasions). Because
the evidence showed that the acts of molestation alleged in Counts 6, 8 and 9 did not
involve a single, uninterrupted course of conduct, the trial court did not err by failing
to merge the sentences.
(b) Aggravated Child Molestation (Counts 1-3). Pavlov further
contends—again relying on Scott—that the trial court erred by failing to merge his
aggravated child molestation convictions for sentencing purposes because they arose
out of the same “short series of transactions in the same location.” The indictment
describes the aggravated child molestation charges as follows: Count 1 (alleging
aggravated child molestation for placing his penis in M. M.’s mouth), Count 2
(alleging aggravated child molestation for placing his penis on M. M.’s anus) and
Count 3 (alleging aggravated child molestation for placing his mouth on M. M.’s
vagina)
Pavlov’s reliance on Scott is again mistaken. Scott held that “multiple touches
to a victim, during a single uninterrupted course of conduct” could not be charged as
separate acts of child molestation after construing the statute’s ambiguous use of the
word “any” in favor of the defendant. Scott, 356 Ga. App. at 160, 163. But the statute
does not repeat that ambiguous word in describing aggravated child molestation.
11
Instead, that offense is more precisely defined as “an offense of child molestation
which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4
(c) (emphasis supplied). Unlike the word “any”—which, as Scott explained, could
denote “a full spectrum of quantities, including: (1) one; (2) one, some, or all
regardless of quantity; (3) one or more; (4) great, unmeasured, or unlimited in
amount; and (5) all”—the phrases “which act” and “an act” refer unambiguously to
a single act that injures the child or, relevant here, a single act of sodomy. Scott, 356
Ga. App. at 158 (5). See e. g. Nik-Chavez v. Garland, __ U. S. __ (141 S.Ct. 1474,
1481, 209 LE2d 433 ) (2021) (concluding that information to be provided in “a
notice” must be contained in a single document); McFadden v. United States, 576 U.
S. 186 (135 S.Ct. 2298, 192 LE2d 260) (2015) (“When used as an indefinite article,
‘a’ means ‘some undermined or unspecified particular[,]’”); Ramierz v. Statewide
Harvesting & Hauling, LLC, 997 F.3d 1356, 1362 (III) (11th Cir. 2021) (concluding
that—in the phrase work “performed . . . on a farm”— the “use of the indefinite
article “a” before the word “farm” means that the phrase refers to a single farm)..
Thus, as we held recently, each distinct act of sodomy is a unit of prosecution for
aggravated child molestation. See Fossier v. State, __ Ga. App. __ (5) (Case No.
A21A1735, decided December 29, 2021) (four aggravated child molestation charges
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did not merge for purposes of sentencing because evidence showed four distinct acts
of oral sodomy occurring during the same incident).
Here, the counts of aggravated child molestation involved three distinct acts
of sodomy—penile-oral sodomy, penile-anal sodomy, and oral-vaginal
contact—across two different nights.4 The trial court therefore did not err by failing
to merge those distinct acts for sentencing. See id.
4. Pavlov finally contends that the trial court erred when it amended the
sentence for his aggravated child molestation charges in his absence and outside the
term of court in which it was entered. We disagree.
After the jury entered its verdict at trial, the trial court orally announced that
Pavlov would receive a sentence of imprisonment for 25 years to serve, with life on
probation, for each of his aggravated child molestation convictions (with all sentences
running concurrently). But the written sentence that followed was for only 25 years
to serve, concurrently, on the aggravated child molestation counts and omitted the
reference to life on probation.
4
OCGA § 16-6-2 (a) (1) (“A person commits the offense of sodomy when he
or she performs or submits to any sexual act involving the sex organs of one person
and the mouth or anus of another”).
13
More than seven months later, the trial court issued an amended written
sentence to conform to its oral sentence. This amended order sentenced Pavlov to a
“split sentence of 25 [years] to serve, followed by probation for life” (to run
concurrently) on the three aggravated child molestation counts. A week later, the trial
court issued a second amended written sentence that sentenced Pavlov on these
counts to “life to serve 25 years, with the balance of his life on probation” (to run
concurrently).
The trial court properly amended its original sentencing order. That order was
void because it failed to comply with the split sentence requirement of OCGA § 16-6-
4 (d) (1). See OCGA § 16-6-4 (d) (1) (a person convicted of aggravated child
molestation “shall be punished by imprisonment for life or by a split sentence that is
a term of imprisonment for not less than 25 years and not exceeding life
imprisonment, followed by probation for life”); Collins v. State, 358 Ga. App. 289,
290–91 (1) (855 SE2d 40) (2021) (aggravated child molestation sentence “that does
not comply with the split sentence requirement [of OCGA § 16-6-4 (d) (1)] is void”)
(punctuation and footnote omitted). And “a trial court has jurisdiction to resentence
defendants at any time when their sentences are void.” Jordan v. State, 253 Ga. App.
510, 511 (1) (559 SE2d 528) (2002).
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We also reject Pavlov’s argument that the trial court erred by issuing these
amended written sentences without holding a new sentencing hearing in his presence.
The amended sentencing orders were issued to conform to the sentence the trial court
orally announced at trial. Further, because the trial court was without discretion to
award a lesser sentence, see OCGA § 16-6-4 (d) (1), the amended orders were merely
ministerial, and therefore their issuance did not require Pavlov’s presence. See
McGruder v. State, 307 Ga. App. 379, 380 (3) (705 SE2d 175) (2010) (“[W]here the
defendant’s sentence is mandatory or fixed in such a way that, at resentencing, the
trial court is without discretion, the resulting resentencing proceeding is purely
ministerial, and it is unnecessary for the defendant to be present at the sentencing
hearing or be represented by counsel”) (citation omitted); Hammond v. State, 277 Ga.
App. 148, 149 (625 SE2d 503) (2005) (defendant’s presence not required when
resentencing outside of defendant’s presence based upon proper merger was
ministerial); Shaheed v. State, 274 Ga. 716, 717 (559 SE2d 466) (2002) (“[I]f
resentencing only involves a ministerial function, a defendant need not be present”).
Pavlov also appears to contend that the second amended sentence imposed a
punishment above what was imposed by the first amended sentence. Not so. The trial
court’s sentencing order merely re-worded the first amended sentence and was the
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minimum sentence available to be imposed. See McGruder, 307 Ga. App. at 380–81
(3).
For the above reasons, the trial court did not err in issuing the amended
sentencing orders to comply with the statutory requirements of OCGA § 16-6-4 (d)
(1).
Judgment affirmed. Dillard, P. J., and Mercier, J., concur.
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