KEA v. the STATE (Three Cases). , 810 S.E.2d 152 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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
January 12, 2018
In the Court of Appeals of Georgia
A17A1555, A17A1556, A17A1557. KEA v. THE STATE
MCFADDEN, Presiding Judge.
In these related appeals, Joseph Bernard Kea, III appeals from his convictions
for sexual battery (OCGA § 16-6-22.1), pandering (OCGA § 16-6-12), and use of a
license plate to conceal the identity of a vehicle (OCGA § 40-2-5). He argues that the
evidence was insufficient to support the convictions and that the trial court should
have granted him a new trial under the general grounds set forth in OCGA §§ 5-5-20
and 5-5-21. Because the evidence authorized the convictions for sexual battery and
pandering, we affirm the judgments in Cases No. A17A1555 and A17A1556. Because
the evidence did not authorize the conviction for use of a license plate to conceal the
identity of a vehicle, we reverse the judgment in Case No. A17A1557 to the extent
it pertains to that offense. (Kea was also convicted of theft by receiving in Case No.
A17A1557. To the extent his enumerations of error in Case No. A17A1557
encompass the theft by receiving conviction, they are deemed abandoned under Ct.
App. R. 25 (c) (2) because he cites no authority and presents no argument in support
of any assertion that the trial court erred in connection with that conviction.)
1. Sexual Battery (Case No. A17A1555).
(a) Sufficiency of the evidence.
In reviewing a challenge to the sufficiency of the evidence to support a
conviction, the “relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis in original).
In applying this standard, we do not resolve conflicts in the testimony, weigh the
evidence, or draw inferences from the evidence, as those are functions of the jury. See
id. “As long as there is some competent evidence, even though contradicted, to
support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be
upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and
punctuation omitted).
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Viewed in this light, the evidence showed that on August 15, 2015, Kea
interviewed A. B. for a dispatcher position at the trucking company where Kea
worked. Kea informed A. B. that she was not qualified for the position but told her
that he was going to give her a “bonus.” He asked her to stand up, approached her
with money in his hand, walked behind her, then pulled her pants and underwear
away from her body and moved his hand downward, trying to put the money in her
pants. A. B. turned around to stop Kea and asked what he was doing. Later that day
A. B. reported the incident to the police.
This evidence was sufficient to authorize the trial court to find that Kea
committed the offense of sexual battery, which is committed when a person
“intentionally makes physical contact with the intimate parts of the body of another
person without the consent of that person.” OCGA § 16-6-22.1 (b). Kea argues that
there is no evidence that he made physical contact with A. B.’s intimate parts. But the
term “intimate parts” includes the buttocks, OCGA § 16-6-22.1 (a), and A. B. testified
that Kea placed his hand in the area of her buttocks and touched her. Kea also argues
that there is no evidence that he intended to touch A. B.’s buttocks. But
[t]he intent with which an act is done is peculiarly a question of fact for
determination by the [factfinder]. Intent, which is a mental attitude, is
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commonly detectible only inferentially, and the law accommodates this.
The [trial court] could certainly infer from [Kea’s] actions [of trying to
put money down the back of A. B.’s pants] that he acted with the intent
to [make physical contact with an intimate part of her body, her
buttocks].
Duvall v. State, 273 Ga. App. 143 (1) (a) (614 SE2d 234) (2005) (citation and
punctuation omitted).
(b) Motion for new trial under OCGA §§ 5-5-20 and 5-5-21.
Citing OCGA §§ 5-5-20 and 5-5-21, Kea argues that the trial court should have
exercised her discretion to grant a new trial on the general grounds, that is because
her finding of guilt was decidedly and strongly against the weight of the evidence.
We disagree.
OCGA § 5-5-20 provides that “[i]n any case when the verdict of a jury is found
contrary to evidence and the principles of justice and equity, the judge presiding may
grant a new trial before another jury.” (Emphasis supplied.) OCGA § 5-5-21 provides
that “[t]he presiding judge may exercise a sound discretion in granting or refusing
new trials in cases where the verdict may be decidedly and strongly against the weight
of the evidence even though there may appear to be some slight evidence in favor of
the finding.” (Emphasis supplied.) We note that while a bench trial does not involve
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a jury and, technically, “there is no verdict in a bench trial,” Woodham v. State, 253
Ga. App. 112, 113 (1) (558 SE2d 454) (2001) (citations omitted), a motion for new
trial raising the general grounds is a proper means of seeking retrial or reexamination
in the trial court of that same court’s decision on an issue of fact. Gully v. Glover, 190
Ga. App. 238, 239 (1) (378 SE2d 411) (1989).
But our review of this claim is limited to the legal sufficiency of the evidence
under the standard set forth in Jackson v. Virginia, supra. As our Supreme Court has
explained:
Trial courts have discretion to grant a new trial on the[ ] grounds [set
forth in OCGA §§ 5-5-20 and 5-5-21] — commonly known as the
“general grounds’ — but appellate courts do not. [An appellate court’s]
review is limited to the legal sufficiency of the evidence. Indeed, even
when asked to review a trial court’s refusal to grant a new trial on the
general grounds, [appellate courts] must review the case under the
standard set forth in Jackson v. Virginia.
Plez v. State, 300 Ga. 505, 507 (1) n. 2 (796 SE2d 704) (2017) (citations and
punctuation omitted). The record shows that the trial court exercised her discretion
in denying Kea’s motion for new trial, and, as discussed above, the evidence
authorized the trial court’s findings of fact under the standard set forth in Jackson v.
Virginia. So “we find no abuse of discretion in [the trial court’s] denying the motion
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for new trial [based on OCGA § 5-5-20].” Smith v. State, 300 Ga. 532, 534 (1) (796
SE2d 671) (2017) (citation and footnote omitted).
2. Pandering (Case No. A17A1556).
(a) Sufficiency of the evidence.
Viewed in the light most favorable to the prosecution, Jackson v. Virginia, 443
U. S. at 319 (III) (B), the evidence showed that in the summer of 2015, Kea
interviewed S. W. for a position at the trucking company. Although S. W. did not pass
a typing test, Kea told her that he would give her the job if she had sexual intercourse
with him. S. W., a single mother of two in need of a job, felt that she had “no other
option,” so she agreed to Kea’s proposal and had sexual intercourse with him.
Afterward, S. W. worked for the trucking company for several weeks, during which
time Kea continued to approach her for sex; S. W. believed that if she did not agree
she would be fired. On August 7, 2015, after Kea again made sexual advances toward
her, S. W. told him no, left his office, and called the police. The trucking company
then fired S. W.
This evidence was sufficient to authorize the trial court to find Kea guilty of
pandering. Requiring sexual activities as a condition of employment constitutes
pandering, a misdemeanor of a high and aggravated nature. OCGA §§ 16-6-12, 16-6-
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13 (a) (4). Pandering is committed, among other ways, when a person “solicits a
person to perform an act of prostitution in his or her own behalf[.]” OCGA § 16-6-12.
An act of prostitution is “a sexual act, including but not limited to sexual intercourse
or sodomy, [performed] for money or other items of value.” OCGA § 16-6-9. Kea
asserts in his brief that there was “no evidence that [S. W.] perform[ed] or was
solicited to perform a sexual act for money.” But the trial court could infer from the
evidence that Kea solicited S. W. to engage in sexual acts with him and, in exchange,
gave her a paying job and permitted her to keep that job. This was sufficient to
support Kea’s conviction for pandering. See McGee v. State, 165 Ga. App. 423, 423-
424 (1) (299 SE2d 573) (1983); Blanton v. State, 150 Ga. App. 559, 559-560 (1) (258
SE2d 174) (1979).
(b) Motion for new trial under OCGA §§ 5-5-20 and 5-5-21.
Citing OCGA §§ 5-5-20 and 5-5-21, Kea argues that the trial court should have
exercised her discretion to grant a new trial on the ground that her finding of guilt
was decidedly and strongly against the weight of the evidence. We disagree for the
reasons discussed in Division 1 (b), supra.
3. Use of license plate to conceal identity of vehicle (Case No. A17A1557).
(a) Sufficiency of the evidence.
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Viewed in the light most favorable to the prosecution, Jackson v. Virginia, 443
U. S. at 319 (III) (B), the evidence showed that on December 19, 2015, a police
officer responded to a call about a suspicious vehicle, which was parked with its
lights turning on and off. The vehicle belonged to Kea, who was sitting inside it. The
vehicle bore an expired license plate but a current revalidation decal. The license
plate and the revalidation decal were not for the same vehicle. The revalidation decal
found on Kea’s vehicle had been stolen from another vehicle the prior month.
On the basis of that evidence, Kea was charged with an offense described in
the accusation as “TAG - USE OF FOR CONCEALING IDENTITY OF VEHICLE.”
But the statute setting forth that offense, OCGA § 40-2-5 (a), covers license plates but
not revalidation decals. So we agree that the evidence was insufficient to support
Kea’s conviction for that offense.
The state alleged that Kea “operat[ed] a motor vehicle bearing a license plate
which was improperly removed or transferred from another vehicle, to wit: 2016
decal[.]” But OCGA § 40-2-5 (a) does not address acts related to decals, only acts
related to license plates. The statute prohibits
remov[ing] or transfer[ing] a license plate from the motor vehicle for
which such license plate was issued; . . . sell[ing] or otherwise
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transfer[ring] or dispos[ing] of a license plate upon or for use on any
motor vehicle other than the vehicle for which such license plate was
issued; . . . buy[ing], receiv[ing], us[ing], or possess[ing] for use on a
motor vehicle any license plate not issued for use on such motor vehicle;
or . . . operat[ing] a motor vehicle bearing a license plate which was
improperly removed or transferred from another vehicle.
OCGA § 40-2-5 (a).
Although the state treats the terms “license plate” and “decal” as synonymous,
it offers no authority for the proposition that we should read the term “license plate”
in OCGA § 40-2-5 (a) to refer to a revalidation decal. Other sections within this
chapter of the Code refer to license plates and revalidation decals as things distinct
from each other. See, e.g., OCGA § 40-2-4 (4) (making it unlawful “to make, sell, or
issue any license plate or revalidation decal”); OCGA § 40-2-8 (b) (1) (permitting law
enforcement officer to store vehicle that “does not have attached to the rear thereof
a numbered license plate and current revalidation decal”); OCGA § 40-2-8.1 (setting
fine for person guilty of having “a valid numbered license plate without having the
required revalidation decal affixed upon the plate”); OCGA § 40-2-30 (permitting a
person to “purchase a vehicle license plate or revalidation decal by mail”); OCGA §
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40-2-42 (providing rules for transfer of a “license plate or revalidation decal” from
one vehicle to another).
There is no evidence that the license plate on Kea’s vehicle was removed or
transferred from another vehicle, or that Kea committed any other act addressed in
OCGA § 40-2-5 (a). So there is no evidence authorizing Kea’s conviction for use of
a license plate to conceal the identity of a vehicle, and we reverse his conviction for
that offense.
(b) Motion for new trial under OCGA §§ 5-5-20 and 5-5-21.
Given our reversal of Kea’s conviction for use of a license plate to conceal the
identity of a vehicle, we do not reach his enumeration of error regarding the trial
court’s denial of his motion for new trial under OCGA §§ 5-5-20 and 5-5-21.
Judgments affirmed in Cases No. A17A1555 and A17A1556. Judgment
reversed in part in Case No. A17A1557. Branch and Bethel, JJ., concur.
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