Colon v. State

619 S.E.2d 773, 275 Ga. App. 73, 2005 Fulton County D. Rep. 2600, 2005 Ga. App. LEXIS 892
CourtCourt of Appeals of Georgia
DecidedAugust 11, 2005
DocketA05A1125
StatusPublished
Cited by21 cases

This text of 619 S.E.2d 773 (Colon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colon v. State, 619 S.E.2d 773, 275 Ga. App. 73, 2005 Fulton County D. Rep. 2600, 2005 Ga. App. LEXIS 892 (Ga. Ct. App. 2005).

Opinions

Ruffin, Chief Judge.

A jury found Jose Fernando Colon guilty of five counts of aggravated child molestation, four counts of statutory rape, and four counts of furnishing alcohol to a minor. Colon appeals, alleging 13 enumerations of error. We find no merit to his enumerations of error, and affirm Colon’s convictions.

On appeal from a criminal conviction, we view the evidence in a light most favorable to support the jury’s verdict, and the defendant [74]*74no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.1 Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.2 As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.3

Viewed in this light, the evidence shows that Colon, who is twenty-six years old, had an illicit sexual relationship with four minor girls, twelve and thirteen years of age. He also gave these girls alcohol to drink. Each of the girls testified as to the sexual acts Colon committed on them or on the other girls in their presence. Two condoms containing Colon’s spermatozoa were recovered from a crime scene based on information from the victims.

1. In two separate enumerations of error, Colon argues the evidence was insufficient to support his convictions because the indictments contained language that specifically alleged the use of force in the commission of all the counts of the statutory rape, child molestation and furnishing alcohol to a minor, but the state failed to produce any evidence of force. These enumerations of error lack merit.

Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality.4 The inquiry is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.5 Here, the state used a form that alleged the use of “force and arms” prior to reciting the actual allegations against Colon. We have previously found that when the phrase “with force and arms” is not a part of the statute violated, “it is surplusage, unnecessary to constitute the offense, need not be proved, and may be disregarded.”6

The actual allegations against Colon specifically set out the offenses of statutory rape, child molestation and furnishing alcohol to a minor. Force is not a necessary element of these offenses.7 Therefore, the state was not required to prove the use of force to sustain a conviction for these offenses. Because the phrase “force and arms” was not a part of the statutes violated, and because the indictment is couched in the words of the statute and correctly informs Colon of the [75]*75offenses sought to be charged, the phrase is mere surplusage and maybe disregarded.8 The variance between the indictment and the proof offered at trial did not affect Colon’s substantive rights, prejudice the preparation of his defense or expose him to the possibility of subsequently having to stand trial for the same charges.9 Consequently, the trial court did not err in refusing to grant Colon’s motion for a directed verdict of acquittal on this ground.

2. Colon contends the trial court erred in admitting inadmissible victim impact evidence during the guilt/innocence phase of the trial. Specifically, Colon complains about testimony from one of the victims and her grandmother regarding the victim’s hospitalization at Charter and an attempt to commit suicide after the events for which Colon was charged. We first note that while Colon’s attorney posed a few objections during the course of the testimony at issue, the attorney did not object to the testimony on the ground that it was impermissible victim impact evidence. “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.”10

Notwithstanding Colon’s waiver of this alleged error, we have thoroughly reviewed the cited testimony and find that the evidence presented was either clearly probative as to issues at trial or was reasonably offered to rebut evidence introduced by Colon in an attempt to cast aspersions on the victim.11 The record shows that Colon attacked the credibility and mental stability of this victim. However, the state is permitted to rehabilitate a witness whose credibility has been attacked.12 We find no error in the trial court’s admission of this testimony.

3. Colon claims the district attorney or a member of the district attorney’s staff was improperly present during the grand jury’s deliberations and voting. He presented the testimony of a grand jury witness to support his assertion. This witness testified that someone from the district attorney’s office remained in the room while the grand jury deliberated and voted on whether to indict Colon. Colon also presented testimony from the district attorney and the assistant district attorney who prosecuted his case. These witnesses testified that they could not actually remember being in the grand jury room [76]*76during deliberations, but stated that it was not unusual for a prosecutor to remain in the grand jury room to prepare the next case that was to be presented. We note that Colon does not allege that the grand jury was deceived or misled by any prosecutorial misconduct before the grand jury. In addition, there has been no showing of any prejudice from any alleged prosecutorial misconduct during the grand jury proceedings.

Colon does not cite any Georgia case law which specifically addresses the presence of a prosecutor during grand jury deliberations and voting, and we can locate no Georgia case law specifically addressing the issue. However, in a 1997 unofficial opinion rendered at the request of a State Senator, the Attorney General of Georgia, though citing no state case addressing the practice, nevertheless concludes that prosecutors or members of their staff should not be present during deliberations of a grand jury because OCGA§ 15-12-67, which requires secrecy in grand jury proceedings, by implication requires that only members of the grand jury are allowed to be present during deliberations and voting.13 We agree with the Attorney General’s interpretation of the statute, but note that the indictment in this case was issued on June 5,1995, nearly one and one-half years prior to the issuance of the unofficial opinion.

We also note that in a very strongly worded opinion, the United States District Court for the Southern District of Georgia, while acknowledging that the Court was unable to find any case law suggesting that a prosecutor violates the federal Constitution by remaining in the presence of the grand jury deliberations, condemns the practice, saying,

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Bluebook (online)
619 S.E.2d 773, 275 Ga. App. 73, 2005 Fulton County D. Rep. 2600, 2005 Ga. App. LEXIS 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colon-v-state-gactapp-2005.