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Simon v. State

The defendant's e-mail correspondence with the victim was admissible because the victim authenticated it.

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Leroy Simon appeals his conviction for child molestation. He argues that the trial court erred in finding that his custodial statement was freely and voluntarily given, admitting e-mail messages that were not properly authenticated, and failing to grant a mistrial when the prosecutor read from an exhibit during closing argument. We find no error and affirm. Viewed in a light most favorable to the verdict,1 the evidence shows that Simon had dated Ava Whiskey, the older sister of M.C. When M.C. was 13, she considered Simon to be her friend and felt she could “talk to him about anything.” One afternoon, while Simon was cleaning Ava’s car and M.C. was sitting inside the car listening to the radio, Simon touched her breasts and leg. M.C. told him to stop, but Simon asked her if she wanted to play a game “where M.C. touches Simon and he touches her back.” M.C. refused and walked away. Later that evening, Simon asked M.C. to hold a flashlight for him while he cleaned out his car. While they were alone, Simon hugged M.C. from behind and put his fingers between her legs. He also asked her if she had engaged in sexual activity and with whom. M.C. told her niece about both incidents that same evening. She did not tell Ava because she feared it would jeopardize her sister’s relationship with Simon.

M.C. also alleged that in August 2003, while she was still 13 years old, Simon had sexual intercourse with her at his home. She did not tell anyone about this incident until Terrance Whiskey, Ava’s ex-husband, learned of suggestive e-mail correspondence between Simon and M.C. When confronted with this correspondence, M.C. admitted to the Whiskeys what Simon had done. She also recounted the incident for staff at Hughes Spalding Children’s Hospital and the Georgia Center for Children, where she was interviewed on videotape. After he was arrested, Simon made a statement to police in which he denied having a sexual relationship with M.C., but admitted that the e-mail correspondence was his.

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