Edmonson v. State

464 S.E.2d 839, 219 Ga. App. 323, 95 Fulton County D. Rep. 3706, 1995 Ga. App. LEXIS 1038

• Court: Court of Appeals of Georgia
• Decided: November 17, 1995
• Docket: A95A1609
• Status: Published

Opinions

Pope, Presiding Judge.

Billy Wayne Edmonson was convicted of rape, statutory rape, incest, aggravated child molestation, sodomy, and cruelty to children.¹ The evidence at trial showed that Edmonson repeatedly sexually assaulted and sodomized the victim, his thirteen-year-old adopted daughter, over a nine-month period. Edmonson enumerates five errors.

1. Relying in part on McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263) (1981), Edmonson argues that the judgment was void because all counts should be merged into the single count of cruelty to children.

We look to the actual evidence introduced at trial to determine “ ‘whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6.’ ” Dawson v. State, 203 Ga. App. 146, 147 (2) (416 SE2d 125) (1992). “ ‘If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.’ ” Id. Here, the victim testified that Edmonson forced her to have intercourse or oral sex with him approximately ten or eleven times over a nine-month period. This evidence distinguishes McCranie, which held, solely on its facts, that because an incest count was based on the same act of sexual intercourse as a statutory rape count, the former was included in the latter. The evidence here did not require merger. Kirby v. State, 187 Ga. App. 88, 89 (369 SE2d 274) (1988). Because nothing in the indictment indicates that its counts arise from the same incident, we reject Edmonson’s argument that the indictment was defective for failing to allege separate and distinct acts.

2. Edmonson challenges the sufficiency of the evidence on the rape count, arguing that the state failed to prove the element of force beyond a reasonable doubt.

The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the state, a rational trier of fact could find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). On appeal, a criminal defendant no longer enjoys the presumption of innocence. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Rape consists of three elements: (1) carnal knowledge of a female; (2) forcibly; and (3) against her will. OCGA § 16-6-1 (a). A female under 14 years old is legally incapable of consenting to sex. Drake v. State, 239 Ga. 232, 233 (1) (236 SE2d 748) (1977). Where this is the case, “the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.” Id. at 234-235. The victim’s testimony that when she was 13, Edmonson forced his penis inside her vagina against her will is sufficient to support the conviction.

3. Edmonson argues that, because the state failed to prove the victim was related to him by blood or marriage or was his adoptive daughter, the evidence on incest was insufficient.

Although the state did not introduce documentary evidence of the adoption, the unrebutted testimony of the adoption by Edmonson, his wife, and the victim was sufficient to establish the relationship. Johnson v. State, 195 Ga. App. 385, 387 (4) (393 SE2d 712) (1990). The effect of this adoption was to create “the relationship of parent and child ... as if the adopted individual were a child of biological issue. . . .” OCGA § 19-8-19 (a) (2). Because adopted individuals “enjoy every right and privilege of a biological child,” they are statutorily protected from incest. Id.

4. Edmonson’s fourth enumeration of error states that the evidence of aggravated child molestation was insufficient because the state failed to prove an intent to arouse his own sexual desires or those of the victim.

The requisite intent may be inferred from Edmonson’s conduct. Branam v. State, 204 Ga. App. 205, 206 (1) (419 SE2d 86) (1992). Evidence of his participation in repeated sexual acts with the victim and his requirement that his sons enter the house only with his permission provides sufficient evidence of intent.

5. Edmonson argues that the verdict was against the clear weight of the evidence.

This court’s review is limited to the sufficiency, not the weight, of the evidence. Jenkins v. State, 216 Ga. App. 433 (1) (454 SE2d 543) (1995). Having considered the evidence in the light most favorable to the verdict, we find it sufficient to sustain the convictions within the meaning of Jackson v. Virginia, 443 U. S. at 319-320.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur specially.

1 At sentencing, the trial court merged a child molestation count with the statutory rape count.