McCollum v. State

338 S.E.2d 460, 177 Ga. App. 40

Opinions

Deen, Presiding Judge.

In 1972 the appellant, Raleigh 0. McCollum, married Helen Mc-Collum, who had three children by a previous marriage. On May 6, 1984, when threatened with a disciplinary whipping by the appellant, one of the appellant’s stepdaughters, then seventeen years old, told her mother that the appellant had performed various sexual acts with her from the time she was eight years old until she was fourteen. The appellant subsequently was indicted for and convicted of both child molestation and aggravated sodomy, from which this appeal followed. Held:

1. The appellant contends that the crime of aggravated sodomy merged with the crime of child molestation as a matter of fact and that the trial court thus erred in sentencing him for aggravated sodomy. If both of the appellant’s convictions were in fact based upon the same, single act, only one conviction (that for aggravated sodomy) could stand. LaPalme v. State, 169 Ga. App. 540 (313 SE2d 729) (1984); OCGA § 16-1-7, generally. However, review of the record shows that over a span of six years the appellant relentlessly subjected his minor stepdaughter to countless episodes of molestation by performing acts of sodomy. LaPalme is inapplicable, since there were multiple, separate acts as bases for each conviction.

We note that although the indictment specifically charged the appellant with having committed child molestation by fondling his stepdaughter’s genital area with his hands, the state failed to adduce any testimony about such an episode of mere fondling. Generally, where an indictment sets out an offense as having been done in a particular way, the proof must show it without variance. Marchman v. State, 129 Ga. App. 22 (198 SE2d 425) (1973). However, the appellant neither raised the specific issue of such a variance nor attacked the sufficiency of the evidence generally, and this court thus does not address that matter.

2. Careful review of the appellant’s remaining enumerations of error discloses no additional ground for reversal.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Carley, Sognier, and Beasley, JJ., concur. Beasley, J., also concurs specially. Banke, C. J., Pope and Benham, JJ., dissent.