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Prophitt v. State

The evidence was insufficient to support the defendant's child molestation conviction arising after he crawled underneath his house and allegedly masturbated while he watched through a hole in the floor as his daughter's minor friend took a shower, since the defendant was not in the child's presence for purposes of O.C.G.A. § 16-6-4.

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An Echols County grand jury indicted Jason Prophitt on a single count of child molestation. A jury found Prophitt guilty of this crime, and Prophitt now appeals his conviction, arguing that the evidence was insufficient to convict him of child molestation. For reasons explained more fully below, we agree with Prophitt, and we therefore reverse his conviction.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 702 SE2d 747 2010. So viewed, the record shows that in November 2012, Prophitt was living with his then-wife, Sonya, and the couple’s daughter, V. P., who at the time was ten years old. During the week of Thanksgiving 2012, V. P.’s friend, C. D., was spending the night at the Prophitt home. After his wife went to bed, Prophitt told the girls that each of them had to shower before going to bed, and that whoever took the longest shower would get a prize. There was only one bathroom in the house, and on the evening in question there was no shower curtain in place. According to both V. P. and C. D., Prophitt told them that the curtain was dirty and was being laundered. Each girl also testified that Prophitt instructed her to shower while facing the door to minimize the amount of water that would spill on to the floor.

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