The crime of child molestation requires that the indecent or immoral act be done “in the presence of” someone under the age of 16. James Frank Rainey was convicted of child molestation because a 15-year-old girl, who was somewhere between 100 and 200 feet away, saw him in the window of his own home, nude from the waist down, appearing to masturbate. On appeal of his conviction and 20-year sentence, he contends that the evidence was insufficient to support the verdict, that the court erred by failing to charge on the lesser included offense of public indecency, and that he received ineffective assistance of counsel. He does not appeal his convictions of giving a false name and giving a false date of birth. Construed in favor of the verdict, the facts show that at 4:00 p.m. on May 18, 2001, the victim got off her school bus and was walking home when she saw Rainey standing at an open window in his home with his hands “on his privates.” The victim ran home and yelled to her mother that “Frank’s playing with hisself sic.” She had clearly seen that he was not wearing pants, and she had seen pubic hair. She then went to a window to confirm what she had seen. She saw Rainey sitting down, but he then stood up and came back to the window, again wearing only a shirt. Rainey had his hands on his penis, he moved his body in a jerking motion, and he stuck his hand and private area out of the window. The victim testified that “it looked like he wanted somebody to see or something.” At her mother’s instruction she got her brother out of the back yard, and while doing so she saw Rainey repeating his actions. She never saw his penis because of his hands.
The victim testified that when she first saw Rainey she was about 200 feet away and that from her brother’s window she was about 100 feet away. Her mother testified that the two homes were 130 to 140 feet apart. A deputy testified that the distance between the homes was less than 40 yards.
