Gordon v. State

761 S.E.2d 169, 327 Ga. App. 774, 2014 WL 2884035, 2014 Ga. App. LEXIS 426
CourtCourt of Appeals of Georgia
DecidedJune 26, 2014
DocketA14A0440
StatusPublished
Cited by11 cases

This text of 761 S.E.2d 169 (Gordon 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
Gordon v. State, 761 S.E.2d 169, 327 Ga. App. 774, 2014 WL 2884035, 2014 Ga. App. LEXIS 426 (Ga. Ct. App. 2014).

Opinion

Ray, Judge.

A jury convicted Andre Gordon of child molestation (OCGA § 16-6-4 (a) (1)), aggravated sexual battery (OCGA § 16-6-22.2), rape (OCGA § 16-6-1 (a) (1)), and incest (OCGA § 16-6-22 (a) (6)). Gordon was sentenced as a recidivist under OCGA § 17-10-7 to 20 years each for child molestation, aggravated sexual battery, and incest, to run consecutively to each other and concurrently with his sentence of life imprisonment without the possibility of parole for rape. He appeals the denial of his motion for new trial, arguing that (1) the evidence [775]*775was insufficient to sustain his convictions for aggravated sexual battery, rape, and incest; (2) the statute of limitation had run on the aggravated sexual battery and incest counts; (3) a fatal variance existed between the dates charged in the indictment and the evidence adduced at trial; (4) the trial court erred in instructing the jury on the elements of rape; and (5) he received ineffective assistance of counsel. Because Gordon’s relationship to the victim did not fall within the ambit of the incest statute, we reverse his conviction for incest and remand the case for resentencing. Gordon’s other claims, however, are without merit, and we affirm his remaining convictions.

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that when T. S. was 13 years old, Andre Gordon came to live with her family. Gordon began touching and interacting inappropriately with T. S., as will be detailed below. T. S. made an outcry to her aunt and later to her mother, who called the police. The same day that the police were called, Gordon told T. S.’s stepfather that he had “messed with” his family. T. S. was examined by a nurse at a clinic for sexually transmitted diseases and at a hospital. The examinations showed that her hymen was not intact, but also showed no signs of bruising, tearing, or trauma consistent with sexual assault. T. S. indicated she had no sexual history prior to the incident with Gordon.

1. Gordon contends that the evidence was insufficient to sustain the verdict as to the aggravated sexual battery, rape, and incest counts.1

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.

(Footnote omitted.) Colton v. State, 297 Ga. App. 795, 796 (1) (678 SE2d 521) (2009).

(a) Aggravated sexual battery. Gordon argues that the victim’s trial testimony that he “would finger her” was too vague to establish [776]*776that penetration, an essential element of aggravated sexual battery, occurred.

Aperson commits aggravated sexual battery when he “intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b). A “foreign object” is anything other than a person’s sexual organ and may include body parts such as fingers, and even slight penetration satisfies the statute’s requirements. Colton, supra.

The indictment charged that Gordon “did intentionally penetrate the vagina of [T. S.] with a finger of the accused” without T. S.’s consent. At trial, T. S. testified that Gordon “would finger me in my vagina.” (Emphasis supplied.) A police investigator who interviewed T. S. testified that she told him Gordon “penetrated her vaginal area with his fingers” and “took his right hand and placed his index and middle finger into her vaginal area and started to rub inside her vagina.” The evidence was sufficient.

(b) Rape. To prove that Gordon raped T. S., the State was required to show that he had carnal knowledge of her forcibly and against her will. OCGA § 16-6-1 (a) (1). Gordon does not dispute that the State proved force and lack of consent. He argues only that the victim’s description of the “carnal knowledge” element of rape was ambiguous because it could have established penetration required for the crime of sodomy, rather than vaginal penetration as required for the carnal knowledge element of rape. We disagree.

“Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1 (a). At trial, T. S. testified that Gordon “tried to penetrate” her while “I was . . . laying [sic] on my side, and from behind he tried to put his penis in me. But, that’s when he pushed in, and I kind of ‘crinched’ (phonetic) and it hurt and that’s why I looked at him, and that’s when he pulled out[.]” T. S. testified that when Gordon tried to penetrate her, she “got real scared[.]” When he told her not to tell her grandmother, she curled up in a ball. She finally decided to tell someone, fearing that if she did not act soon, “it could get worse.” The investigator who interviewed T. S. testified that she told him, as to the same incident, that Gordon “pulled her shorts and panties aside and inserted his penis into her vagina” (Emphasis supplied.)

It is well settled that “it is the function of the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence.” (Citation omitted.) Roberts v. State, 313 Ga. App. 849, 850 (1) (723 SE2d 73) (2012). In light of the testimony outlined above, a rational jury could find that the evidence was sufficient to show that Gordon penetrated T. S.’s vagina with his penis.

[777]*777(c) Incest. Gordon argues that the evidence is insufficient because Georgia’s incest statute does not prohibit sexual intercourse between a “step-uncle” and niece, and thus, that the State failed to prove the existence of a relationship proscribed by OCGA § 16-6-22. As an initial matter, counsel’s use of the term “step-uncle” is inapt and confusing, as T. S.’s mother and Gordon are half-siblings who have the same father. Thus, Gordon is T. S.’s uncle, related by half-blood. He is not her “step-uncle.”

In pertinent part, OCGA § 16-6-22

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Bluebook (online)
761 S.E.2d 169, 327 Ga. App. 774, 2014 WL 2884035, 2014 Ga. App. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-state-gactapp-2014.