Michael Lee Shepherd v. State ( 2019 )

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.
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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
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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).
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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
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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.
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