Alejandro Castaneda v. State

• Court: Court of Appeals of Georgia
• Decided: April 30, 2012
• Docket: A12A0754
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

April 30, 2012

In the Court of Appeals of Georgia A12A0754. CASTANEDA v. THE STATE.

ANDREWS, Judge.

Alejandro Castaneda was found guilty by a jury of aggravated sexual battery

and two counts of child molestation. On appeal, he claims that the evidence was

insufficient to support the guilty verdict for aggravated sexual battery, and that his

conviction for the offense of aggravated sexual battery merged with his conviction

for molesting the child in connection with that offense. We find that the evidence was

sufficient to support the conviction for aggravated sexual battery, but agree that one

count of child molestation merged with aggravated sexual battery.

1. On appeal from a criminal conviction, a defendant no longer enjoys the

presumption of innocence, and the evidence is viewed in the light most favorable to

the guilty verdict. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). Viewed in this light, the State produced the following evidence. The victim, who was

Castaneda’s daughter and 13 years old at the time of the alleged crimes, testified that

on two occasions Castaneda touched her vagina with his hand while they were lying

together in bed. A police officer who interviewed the child testified that the child told

him that Castaneda touched her between her legs and put his fingers inside of her. A

nurse who interviewed the child testified that the child told her that on more than one

occasion Castaneda touched her with his hand in her groin area and that he put his

finger inside her. Castaneda gave a statement to police in which he admitted that on

two occasions he put his hand on the child’s vagina. Castaneda claimed in the

statement that he only put the tip of his finger inside the child, and that she

encouraged the incidents by fondling him. The evidence was sufficient for the jury

to find beyond a reasonable doubt that Castaneda was guilty of two counts of child

molestation by touching the child’s vagina with his hand in violation of OCGA § 16-

6-4 (a), and one count of aggravated sexual battery by penetrating the child’s sexual

organ with his finger in violation of OCGA § 16-6-22.2. Jackson v. Virginia, 443 U.

S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The evidence showed that Castaneda committed the offense of child

molestation under count 2 of the indictment by touching the child’s vagina with his

2 hand at the same time that he committed the offense of aggravated sexual battery by

penetrating her vagina with his finger. Because, looking at the evidence required to

prove each crime, child molestation under count 2 was established by proof of the

same or less than all the facts required to establish commission of aggravated sexual

battery, child molestation under count 2 was a lesser included offense of aggravated

sexual battery and merged into aggravated sexual battery as a matter of fact. Hudson

v. State, 309 Ga. App. 580-582 (711 SE2d 95) (2011); Davenport v. State, 277 Ga.

App. 758, 760-761 (627 SE2d 133) (2006); Rudisail v. State, 265 Ga. App. 293, 295

(593 SE2d 747) (2004); Shamsuddeen v. State, 255 Ga. App. 326, 327-328 (565 SE2d

544) (2002). Accordingly, the conviction and sentence for child molestation under

count 2 is vacated, the sentences are vacated on the remaining counts, and the case

is remanded to the trial court for re-sentencing.

Judgment affirmed in part and vacated in part. Sentences vacated and case

remanded for re-sentencing. Doyle, P. J., and Boggs, J., concur.