Daniels v. State

629 S.E.2d 36, 278 Ga. App. 332, 2006 Fulton County D. Rep. 923, 2006 Ga. App. LEXIS 282
CourtCourt of Appeals of Georgia
DecidedMarch 13, 2006
DocketA05A2145
StatusPublished
Cited by8 cases

This text of 629 S.E.2d 36 (Daniels 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
Daniels v. State, 629 S.E.2d 36, 278 Ga. App. 332, 2006 Fulton County D. Rep. 923, 2006 Ga. App. LEXIS 282 (Ga. Ct. App. 2006).

Opinion

629 S.E.2d 36 (2006)
278 Ga. App. 332

DANIELS
v.
The STATE.

No. A05A2145.

Court of Appeals of Georgia.

March 13, 2006.
Reconsideration Denied March 22, 2006.

*37 Jeffrey S. Purvis, Cumming, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

BERNES, Judge.

A Forsyth County jury convicted appellant Gaylon Neil Daniels of aggravated child molestation, aggravated sexual battery, three counts of child molestation, and cruelty to children in the first degree. In this appeal, Daniels contends that the trial court erred in denying his motion in limine/motion to suppress evidence; in denying his motion for a mistrial made after a state's witness referred to Daniels' prior convictions for child molestation; and in failing to merge certain of the counts at sentencing. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the trial evidence shows that on or about March 17, 2002, the ten-year-old victim, M.D., informed his mother that Daniels, *38 his uncle, had been molesting him when M.D. visited with his father. M.D.'s mother and father were divorced and the acts of molestation occurred when M.D. and his younger brother went for their regular weekend visitations with their father at the trailer where Daniels also lived. M.D.'s mother reported the allegations to the Forsyth County Sheriff's Department the next morning. The Sheriff's Department referred M.D. and his mother to the Forsyth County Child Advocacy Center, where a videotaped interview of M.D. was conducted.

On the videotape and at trial, M.D. described numerous acts of molestation perpetrated by Daniels over a period of time. Daniels had repeatedly orally sodomized M.D., had repeatedly rubbed his penis between M.D.'s buttocks and on more than one occasion, had penetrated M.D.'s anus with his finger and placed his hand on M.D.'s penis. M.D. described several of the acts as painful. He recounted one incident in which Daniels forced M.D. to place his hand on Daniels' penis and another in which Daniels forcibly touched M.D.'s penis. M.D. also described sexual acts in which Daniels rubbed lotion on M.D.'s naked body, "French kissed" M.D., ejaculated in the presence of M.D., and rubbed a battery operated sex toy shaped like a penis on M.D.'s buttocks. Daniels also showed M.D. pornographic magazines.

All of the incidents occurred in Daniels' bedroom, where a computer was located. M.D. enjoyed playing computer games, and Daniels had told M.D. that if he did not participate in the sexual acts, Daniels would not let him play on the computer. Daniels also attempted to bribe M.D. by giving him money to keep the molestation a secret, and threatened that both of them would be in trouble if M.D. disclosed the abuse.

After M.D.'s interview at the Advocacy Center, an investigating detective sought and obtained a search warrant for Daniels' residence. During execution of the search warrant, the detective seized lotion, three computers, a plastic penis, and pornographic magazines, all of which were found in Daniels' room. The computers were sent to the Georgia Bureau of Investigation Crime Lab for analysis of their contents. Photographs retrieved from Daniels' computer depicted M.D. naked, in Daniels' room, sitting on Daniels' lap.

On March 22, 2002, five days after M.D. disclosed the sexual abuse, he was examined by Dr. Terese DeGrandi, a licensed pediatric physician and medical director at the Center for Advocacy & Protection at Scottish Rite Hospital. Dr. DeGrandi discovered deep healing lacerations around M.D.'s rectum, and a lesion on his penis which was diagnosed to be Herpes II. A later test of Daniels' blood revealed he also had Herpes II. Shortly after M.D. disclosed the acts of molestation, he began undergoing therapy with a counselor and at the time of trial, was still seeing a counselor on a weekly basis.

At trial, R.B., another of Daniels' nephews, testified to acts of child molestation Daniels had perpetrated upon him and for which Daniels had previously been convicted.

1. Daniels contends that the trial court erred in denying his motion to suppress evidence seized from his residence pursuant to a search warrant. He contends the warrant was issued without probable cause, incorrectly identified the premises to be searched, and improperly authorized the search and seizure of computers in the residence. We disagree.

In determining whether probable cause exists for the issuance of a search warrant, the magistrate's task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. This Court's review of the magistrate's decision is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. Substantial deference is afforded to a magistrate's decision to issue a search warrant based on a finding of probable cause.

(Citations and punctuation omitted.) Smith v. State, 274 Ga.App. 106, 107(1), 616 S.E.2d 868 (2005).

*39 The affidavit for the search warrant averred that on March 19, 2002, M.D., the child victim, was interviewed at the Forsyth County Child Advocacy Center, at which time M.D. disclosed that Daniels, M.D.'s uncle, had been molesting him for the past year and a half at Daniels' residence at 5880 Hubbardtown Road. The affidavit described the child molestation incidents reported by M.D. and items used by Daniels during the incidents, such as lotion, pornographic magazines, and a white plastic penis. The affidavit further noted that M.D. had reported that Daniels had a computer in his room. The affiant, the investigating detective, attested that, based on his experience and training, persons involved in acts of child molestation often use their computers to perpetrate their illegal acts and to maintain files and data related to their illegal acts. The affiant also informed the magistrate, by way of sworn testimony, that Daniels had previously been convicted of child molestation. See Pettus v. State, 237 Ga.App. 143, 144(2), 514 S.E.2d 901 (1999) ("trial court may consider oral testimony presented to a magistrate in support of the issuance of a warrant") (citation omitted). Given the totality of the circumstances, the magistrate was presented with a substantial basis for concluding that evidence of the child molestation crime would be found at Daniels' residence. See Smith, 274 Ga. App. at 108-109(1), 616 S.E.2d 868.

(a) Description of the location to be searched. Daniels contends the warrant failed to particularly describe the place to be searched. "The test for the sufficiency of a premises description is whether on its face it enables a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty." (Citation and punctuation omitted.) Gumina v. State, 166 Ga.App. 592, 594(2), 305 S.E.2d 37 (1983).

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Bluebook (online)
629 S.E.2d 36, 278 Ga. App. 332, 2006 Fulton County D. Rep. 923, 2006 Ga. App. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniels-v-state-gactapp-2006.