SECOND DIVISION

MERCIER, C. J.,

MILLER, P. J., and HODGES, J.

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

January 24, 2024

In the Court of Appeals of Georgia

A23A1675. CLARK v. THE STATE.

MILLER, Presiding Judge.

Following a jury trial, Shawn Clark was convicted of child molestation and

public indecency.Clark appeals following his convictions and sentence and the denial

of his motion for new trial, claiming that the evidence was insufficient to support his

child molestation conviction and that the trial court plainly erred in instructing the

jury and in allowing certain expert testimony. We disagree and therefore affirm

Clark’s convictions and sentence and the denial of his motion for new trial.

Viewed in the light most favorable to the verdicts,1the evidence at trial showed

that on December 2, 2018, Clark was an inmate in the Henry County Jail when his

1

 See Patch v. State, 337 Ga. App. 233, 235 (1) (786 SE2d 882) (2016).
girlfriend Venessa Parker and their three-year-old daughter A. P. visited him. The

visitation area consists of two sides, one for inmates and one for visitors, which

contain three booths with stools, counters, and telephones and which are separated

from the other side by transparent plexiglass. The stools in adjoining booths are

approximately two feet apart from each other, and an individual in one booth can see

into the other booths.

During the visit, Clark spoke with A. P. before telling Parker that he wanted to

see her private parts. Parker pulled down her pants and put her private parts up to the

plexiglass for Clark to see.2

Parker attempted to block A. P. from seeing her private

parts by placing her jacket over her lap. Clark pulled his penis out of his pants, placed

lubricant on it, and masturbated, occasionally standing up while he did so. A. P.

initially wandered around the visitation area and the other booths while Clark was

masturbating, but at one point A. P. was standing behind Parker’s booth in Clark’s

“clear view” and was facing Clark while he masturbated. Prison guards saw Clark

masturbating and stopped the visit. Clark subsequently told the guards that “if it

2

 Parker pled guilty to public indecency based on the incident.

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wasn’t on camera, nothing happened.” The jury observed both a video recording and

photographs of the visit at trial.

At trial, law enforcement officers familiar with the visitation area testified that

based on the respective vantage points of Clark and A. P., the two could have seen

each other while Clarkwas masturbating. However, Parker testified that A. P. did not

see Clark masturbating because she was not paying attention to him.

Clark was charged with child molestation (OCGA § 16-6-4 (a)) and public

indecency (OCGA § 16-6-8), and the jury found him guilty on both counts. The trial

court sentenced Clark to 20 years, with the first 10 years to be served in confinement

and the remainder on probation. Clark filed a motion for new trial, which the trial

court denied after a hearing. This appeal followed.

1. Clark argues that the evidence was insufficient to convict him of child

molestation for two reasons. First, Clark argues that he was not aroused due to the

presence of A. P. but due to the presence of Parker, and a natural reading of OCGA

§ 16-6-4 (a) indicates that the State must prove that the defendant aroused himself due

to the child’s presence. Second, he argues that the evidence did not show that Clark

masturbated“in the presence of”A.P. because there was a significant physical barrier

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between him and the child, the child’s view of him was blocked by the barrier and

Parker, and there was no testimony that the child saw his penis. We reject Clark’s

interpretation of the child molestation statute and conclude that the evidence

authorized the jury to find that he masturbated in A. P.’s presence.

When a defendant challenges the sufficiency of the evidence supporting

his criminal 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. It is the function of the jury, notthe reviewing court,

to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from the evidence. 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.

(Citations, punctuation, and emphasis omitted.) Thomas v. State, 324 Ga. App. 26

(748 SE2d 509) (2013).

A reading of the child molestation statute and an examination of the relevant

case law establishes that the defendant need not be aroused due to the presence of the

child to sustain a conviction under the statute. At the time of Clark’s conduct in

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2018,3 OCGA § 16-6-4 (a) (1) provided that “[a] person commits the offense of child

molestation when such person . . . [d]oes any immoral or indecent act to or in the

presence of or with any child under the age of 16 years with the intent to arouse or

satisfy the sexual desires of either the child or the person[.]”4 Thus, to convict Clark

of child molestation, the State needed to prove the following elements:

“(1) commission of an immoral or indecent act; (2) to or in the presence of or with any

child under the age of 16; (3) with the intent to arouse or satisfy the sexual desires of

either the child or the perpetrator.” Gable v.State, 222 Ga.App. 768, 769-770 (1) (476

SE2d 66) (1996).

Under our well-established rules ofstatutory construction, we presume

that the General Assembly meant what it said and saidwhat it meant. To

that end, we must afford the statutory text its plain and ordinary

meaning, we must view the statutory text in the context in which it

appears, and we must read the statutory text in its most natural and

reasonable way, as an ordinary speaker of the English language would.

3 “[I]t has long been the law in this state that, in general, a crime is to be

construed and punished according to the provisions of the law existing at the time of

its commission.” Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999).

4 The statute was amended in 2022 to change the phrase “any immoral or

indecent act” to “an immoral or indecent act.” See Ga. L. 2022, p. 104, § 1.

5
(Citation and punctuation omitted.) Scott v. State, 299 Ga. 568, 571 (2) (788 SE2d

468) (2016). Further, we must “interpret the statute as a whole, striving to make all

its parts harmonize and to give a sensible and intelligent effect to each part, and to

avoid constructions that make some language mere surplusage.” (Citations and

punctuation omitted.) State v. Free At Last Bail Bonds, 285 Ga. App. 734, 737 (647

SE2d 402) (2007).

The child molestation statute simply refers to “the sexual desires of either the

child or the person” and provides no indication that the defendant must be aroused

due to the child’s presence. Indeed, that the statute covers the commission of an

immoral or indecent act “in the presence of” a child shows that the child does not

need to be a motivating factor for the improper act. Binding precedent applying the

statute also shows that the defendant need not be aroused due to the child’s presence.

Specifically, this Court has held that a husband andwife who engaged in an “open and

intentional act of sexual intercourse” with each other in the presence of five children

could be convicted of child molestation. Grimsley v. State, 233 Ga. App. 781, 784-785

(1) (505 SE2d 522) (1998). This Court has also held that a defendant could be

convicted of child molestation when he masturbated andwatched pornography while

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a child was moving around the house and when he was aware that the child could see

him. Jordan v. State, 317 Ga.App. 160, 163-164 (1) (b) (730 SE2d 723) (2012); see also

Brown v. State, 324 Ga. App. 718, 720-721 (1) (751 SE2d 517) (2013) (the child

molestation statute “requires only that the defendant have acted with the intent to

arouse his sexual desires”).

Clark’s concern that the childmolestation statute could be appliedto innocuous

conduct is addressed by other elements of the statute. Significantly, the statute only

applies to “immoral or indecent” acts, and we have generally held that the defendant

must be aware ofthe child’s presence during the act. See Rainey v.State, 261 Ga.App.

888, 890 (1) (584 SE2d 13) (2003) (evidence supported child molestation conviction

because “the jury was authorized to conclude that [the defendant] was aware of the

victim’s presence and that he sought to expose himself to her for the purpose of

satisfying his own sexual desires”). “Immoral or indecent acts constituting child

molestation refer to acts generally viewed as morally indelicate or improper or

offensive, and which offend against the public’s sense of propriety.” (Citation and

punctuation omitted.) Wormley v.State, 255 Ga.App. 347, 348 (565 SE2d 530) (2002).

Clark relies upon this Court’s prior rejection of the hypothetical argument that

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“taking a picture of a potted plant might be an act of child molestation if there is

sufficient evidence to show that the photographer acted with sexual intent.” See Rice

v. State, 357 Ga. App. 873, 876-877 (1) (b) (852 SE2d 579) (2020). However, in Rice

this Court simply addressed the issue of whether the act of taking photographs of

children whowere clothed and sleeping was “immoral and indecent”— not the issue

of what the defendant must be aroused by. See id. Thus, we reject Clark’s argument

that under the child molestation statute the defendant’s arousal must always be due

to the presence of the child.

We also disagree with Clark’s assertion that because masturbating in public

where children might see is covered by the public indecency statute, the rule of lenity

requires that a perpetrator who has engaged in such conduct be punished for the lesser

offense of public indecency.

[T]he rule of lenity finds its roots in the vagueness doctrine, which

requires fair warning as towhat conduct is proscribed.More specifically,

the rule of lenity ensures that if and when an ambiguity exists in one or

more statutes, such that the lawexacts varying degrees of punishment for

the same offense, the ambiguity will be resolved in favor of a defendant,

who will then receive the lesser punishment. Of course, if it is

determined after applying the traditional canons of construction that the

relevant statutory text is unambiguous, then the rule of lenity will not

8
apply.The fundamental inquiry when making that assessmentis whether

the identical conduct would support a conviction under either of two

crimes with differing penalties.

(Citation omitted.) Koroma v. State, 350 Ga.App. 530, 531 (2) (827 SE2d 903) (2019).

“Put another way, the operative question is whether [Clark’s] conduct, as charged,

subjected him to prosecution and sentencing under both statutes.” (Citation and

punctuation omitted.) Id.; see also Banta v. State, 281 Ga. 615, 618 (2) (642 SE2d 51)

(2007) (“[T]hat a single act may, as a factual matter, violate more than one penal

statute does not implicate the rule of lenity.”).

OCGA § 16-6-8 (a) (2) provides that “a person commits the offense of public

indecency when he or she performs” certain acts “in a public place,” including “[a]

lewd exposureofthe sexualorgans[.]”Clarkwas chargedwith childmolestation based

on him masturbating in A. P.’s presence, while he was charged with public indecency

based on him lewdly exposing his penis at the jail, a public place. The offense of child

molestation required proof of additional facts which public indecency did not:that the

victim be under the age of 16 and that Clark sought to arouse his own sexual desires.

See Koroma, supra, 350 Ga. App. at 532-533 (2). And the offense of public indecency

required proof of an additional fact which child molestation did not: that the act be

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performed in a public place. “Because different facts were required to prove these

offenses, the rule of lenity does not apply.” Quaweay v. State, 274 Ga. App. 657, 658

(618 SE2d 707) (2005).

We conclude that the evidence authorized the jury to find that Clark

masturbated “in the presence of” A. P. “[T]his Court has made clear that the

presence element of child molestation is satisfied where the accused and the victim

were in close physical proximity (such as in the same room or on the same piece of

furniture) and the defendant was aware of the child’s presence at the time he

committed the immoral or indecent act at issue.” Prophitt v. State, 336 Ga. App. 262,

265 (784 SE2d 103) (2016) (physical precedent only); see id. at 268 (“[F]or an

accused and victim to be together, they must be in the same location — i.e., they must

be in close enough physical proximity that they each would at least have the

opportunity to observe the other — regardless of whether the child actually does

observe the defendant’s conduct.”). Here, Clark and A. P. were within three feet of

each other in the same visitation area separated only by transparent plexiglass, and

they were visible to each other while Clark masturbated. This evidence was sufficient

for a jury to conclude that Clark masturbated in the presence of A. P. See Jordan,

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supra, 317 Ga. App. at 163-164 (1) (b) (evidence supported the defendant’s child

molestation conviction because he masturbated and watched pornography while the

child was moving around the house and he was aware that the child could see him).

Compare Prophitt,supra, 336 Ga. App. at 262-263, 268 (conduct did not occur in the

child’s presence, where the defendant positioned himself seven to eight feet

underneath a house and masturbatedwhile observing the child shower through a hole

in the bathroom floor that was one inch long and one-half inch wide, and it would have

been physically impossible for the child to see the defendant); Selfe v. State, 290 Ga.

App. 857, 859-861 (1) (660 SE2d 727)(2008) (conduct occurring over a webcam does

not constitute child molestation because it does not occur in the child’s presence),

disapproved of on other grounds, Gordon v. State, 334 Ga. App. 633, 637 (780 SE2d

376) (2015).

Moreover, the State was not required to prove that A. P. actually saw Clark

masturbating. “[T]he mere exposure of sexual organs to a child is sufficient evidence

of child molestation, and neither physical contact with the child nor the child’s actual

sight of the sexual organs is required.” (Citation omitted.) Clemens v. State, 318 Ga.

App. 16, 20 (3) (733 SE2d 67) (2012). All that is required under the child molestation

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statute is that the immoral or indecent act occur in the child’s presence. Jackson v.

State, 344 Ga.App. 618, 620 (1) (810 SE2d 6720 (2018). In this case, there was ample

evidence — including the video recording and photographs of the incident showing

that Clark and A. P. were in close physical proximity and that Clark was aware of A.

P.’s presence— from which the jury could find that Clark masturbated in A. P.’s

presence. See id. (upholding childmolestation conviction because there was evidence

from which the jury could infer that the defendant masturbated in the child’s

presence); Klausen v. State, 294 Ga. App. 463, 464-465 (1) (669 SE2d 460) (2008)

(evidence supportedchildmolestation conviction because the defendant masturbated

while a child was on a sofa with him, even though the child “may not have been fully

aware of what was occurring”).

Accordingly, we conclude that the evidence was sufficient to support Clark’s

conviction for child molestation.

2. Next, Clark argues that the trial court plainly erred by instructing the jury as

follows:“The requirement that an act of childmolestationbecommitted in the child’s

presence is met when the accused is aware ofthe child’s presence. The child need not

see the accused’s sex organ or even be aware of the accused’s presence at the time of

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the indecent act for the jury to find the child is in the accused’s presence.” Clark

asserts that under Prophitt,supra, 336 Ga.App. 262, a defendant’s mere awareness of

the child’s presence is not sufficient to prove the presence element of child

molestation and that the instruction allowed the jury to convict him of child

molestation regardless ofwhat caused his arousal.We conclude that the trial court did

not plainly err in giving this instruction.

This Court reviews a challenged jury instruction for plain error where, as here,

the defendant did not object to it at trial. State v. Kelly, 290 Ga. 29, 31-32 (1) (718

SE2d 232) (2011); OCGA § 17-8-58 (b). An appellant seeking to establish plain error

must make four showings:

First, there must be an error or defect — some sort of deviation from a

legal rule — that has not been intentionally relinquished or abandoned,

i.e., affirmatively waived, by the appellant. Second, the legal error must

be clear or obvious, rather than subject to reasonable dispute. Third, the

error must have affected the appellant’s substantial rights, which in the

ordinary case means he must demonstrate that it affected the outcome

of the trial court proceedings. Fourth and finally, if the above three

prongs are satisfied, the appellate court has the discretion to remedy the

error — discretion which ought to be exercised only ifthe error seriously

affects the fairness, integrity or public reputation of judicial proceedings.

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(Citation, punctuation, and emphasis omitted.) Kelly, supra, 290 Ga. at 33 (2) (a).

“Satisfying all four prongs of this standard is difficult, as it should be.” (Citation and

punctuation omitted.) Id.

We conclude that the trial court did not commit clear or obvious error in

instructing the jury here. Significantly, the principles contained in the challenged

instruction constituted a correct statement of the law.As discussed above in Division

1, an act of child molestation may occur in the child’s presence when the defendant

is aware of the child’s presence; the child does not need to actually see the

defendant’s genitals; and the defendant does not need to be aroused by the child’s

presence. Because the trial court correctly instructed the jury on the elements of child

molestation, Clark cannot establish that the trial court committed plain error. See Pye

v. State. 322 Ga. App. 125, 128-129 (2) (742 SE2d 770) (2013) (defendant could not

establish plain error in the trial court’s jury instruction because the instruction was a

correct statement of the law).

3.Clark further argues that the trial court plainly erred by allowing Investigator

Greg Patterson of the Henry County Sheriff’s Office to testify as a legal expert and

explain child molestation and public indecency for the jury. Specifically, Clark asserts

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that Patterson was improperly allowed to testify that (a) in his investigations, both

individuals who had touched a child and those who had not were charged with child

molestation, and (b) he had investigated cases “as childmolestation”where a suspect

showed pornography to a child and masturbated in the child’s presence, but he had

cited people who had urinated in the woods for public indecency. We conclude that

the trial court did not plainly err in allowing the challenged testimony.

Our review of this issue is limited to plain error because Clark did not object to

Patterson’s testimony at trial. See OCGA § 24-1-103 (a) (1), (d); Watson v. State, 303

Ga. 758, 761 (2) (c) (814 SE2d 396) (2018).

Here, the trial court did not commit clear or obvious error in allowing the

testimony. Although “an expert witness may not testify as to his opinion regarding

ultimate legal conclusions,” (Citation omitted.) Fireman’s Fund Ins. Co. v. Holder

Constr.Group, 362 Ga.App. 367, 374 (1) (b) (868 SE2d 485) (2022), Patterson did not

testify that Clark’s conduct constituted child molestation or public indecency but

instead merely explained what offenses certain defendants had been charged with in

his investigations.

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Even if Patterson improperly opined on what conduct constitutes child

molestation or public indecency, any error in allowing his testimony did not affect the

jury’s verdicts. When the State asked Patterson if a person’s arousal needed to be

caused by a child in order to be charged with child molestation, Clark objected on the

basis that Patterson could not give a legal opinion, and the trial court sustained the

objection and told the jury that it would take the law the court provided. Before

deliberations began, the court reaffirmed to the jury that the court was responsible for

instructing it on the law. The court also instructed the jury that it was not required to

accept the testimony of any witnesses, “expert or otherwise.” Thus, the jury was

aware that it should followthe lawgiven by the court and that it did not have to accept

Patterson’s testimony. See, e.g., Mike v. State, 358 Ga.App. 113, 118 (3) (b) (853 SE2d

887) (2021) (trial court lessened the prejudicial impact of certain evidence by

instructing the jury to consider the evidence for only the limited purpose of proving

intent or the absence of mistake or accident). Further, the potential implication of

Patterson’s testimony — that a defendant need not touch a child in order to commit

child molestation — was correct, as we explained in Division 1. And there was ample

evidence, including the video recording and photographs of the incident, that Clark

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committed child molestation and public indecency. See Gates v. State, 298 Ga. 324,

328 (3) (781 SE2d 772) (2016) (the defendant could not establish that any error in the

admission of evidence likely affected the outcome of his trial, in light of the

overwhelming evidence of his guilt).Accordingly, the trial court did not plainly err in

allowing Patterson’s testimony.

4. Finally, Clark argues that the cumulative effect of the errors asserted in

Divisions 2 and 3 requires a new trial. However, given our conclusion that the trial

court did not commit any plain error, this argument lacks merit. See Heade v. State,

312 Ga. 19, 29 (5) (860 SE2d 509) (2021) (defendant’s cumulative error argument

failed when there were no errors to cumulate).

Accordingly, we affirm Clark’s convictions and sentence and the denial of his

motion for new trial.

Judgment affirmed. Mercier, C. J., and Hodges, J., concur.

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