McMorris v. State

588 S.E.2d 817, 263 Ga. App. 630, 2003 Fulton County D. Rep. 3148, 2003 Ga. App. LEXIS 1280
CourtCourt of Appeals of Georgia
DecidedOctober 15, 2003
DocketA03A1563
StatusPublished
Cited by4 cases

This text of 588 S.E.2d 817 (McMorris 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
McMorris v. State, 588 S.E.2d 817, 263 Ga. App. 630, 2003 Fulton County D. Rep. 3148, 2003 Ga. App. LEXIS 1280 (Ga. Ct. App. 2003).

Opinion

Andrews, Presiding Judge.

Charles Frank McMorris, Jr. (McMorris) appeals from the trial court’s denial of his motion for new trial following his conviction by a jury of rape and aggravated sodomy, contending that trial counsel was ineffective; two evidentiary rulings by the trial court were incorrect; and the evidence was legally insufficient. For the reasons set out herein, we affirm.

1. We consider first the fourth enumeration of error regarding sufficiency of the evidence.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [McMorris] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the [631]*631proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed with all inferences in favor of the jury’s verdict, the evidence was that McMorris met the victim, S. H., at Centennial Olympic Park. S. H. was receiving Social Security disability payments following what she described as a nervous breakdown.1 She had previously been hospitalized at Georgia Regional Hospital and had ceased taking her prescribed medication because it made her feel “like a mummy.” When she met McMorris, she was living at the Salvation Army shelter.

McMorris and S. H. attended movies, shopped, and talked on the telephone and S. H. considered him a friend. In March 2001, S. H. went with McMorris to the personal care home run by his mother, Smith, where McMorris worked. S. H. obtained a job there cleaning, preparing meals for the home’s five residents, and administering their medications. Although she initially continued living at the Salvation Army, S. H. eventually moved into Smith’s personal care home. There, S. H. slept on a couch in the living room while McMor-ris also slept in the living room, either on a loveseat or a mattress on the floor. They never slept together. Although McMorris asked her to be his girlfriend, S. H. refused. S. H. told McMorris, “I told him no boyfriend or girlfriend, no boyfriend or girlfriend, just friends, no boyfriend and girlfriend.”

On April 29, 2001, shortly after midnight, S. H. went to the bathroom before going to bed. When she came out, McMorris called her and told her there was a leak in another bathroom and he needed her help. This bathroom was located off of McMorris’ parents’ bedroom. His parents were in Alabama for the weekend and McMorris and S. H. were the only other people in the home with the five residents. McMorris followed S. H. into his parents’ bedroom where S. H. discovered there was no leak. When she said this, McMorris shut the bedroom door, said he loved her, and pushed her onto the bed. He then covered her mouth with his hand, told her not to scream, and removed her pants and underwear.

At that point, McMorris attempted to have intercourse with S. H., but put his penis in her anus, and she told him it was burning. [632]*632Then McMorris licked her breast and vagina and then “he put it in. He put his — he put his down there in me, his penis inside me.” All during this, S. H. was telling McMorris not to do it, but McMorris kept saying he was going to take care of her and he loved her. McMor-ris finally fell asleep on top of her and S. H. got away.

In the morning, S. H. called Mrs. Hill, who owned the personal care home. Hill asked for Smith’s number in Alabama and then she and her husband came to help S. H., who had also called police. The Hills said they were close friends of Mrs. Smith, who was a registered nurse. Mrs. Hill said S. H. called her around 7:00 a.m. on April 29 and said she had been raped. Mrs. Hill asked who it was, but S. H. did not answer. Mrs. Hill then asked if the man were still there and if it were McMorris. S. H. answered affirmatively. Mrs. Hill then called Mrs. Smith in Birmingham and the Hills went to S. H. When they arrived, Mr. Hill found S. H. sitting at a table “kind of in a fetal position” and shaking. When he asked her what happened, she said either that she had been raped or violated. Mr. Hill then asked McMorris if she had given consent and he said no, but said “I didn’t think she really meant no.” Mr. Hill described McMorris as “slow.”

When police arrived, S. H. also told them she had been raped. McMorris also told police that he pushed her onto the bed and she screamed when he did so. He admitted putting his hand over her mouth, removing her clothing, and attempting to penetrate her vagina. McMorris also told one of the officers that “you know how women will have sex but they still say no. I guess she didn’t really want it.”

S. H. was examined by Stearns, a physician’s assistant, that morning. Stearns had extensive training in sexual assault examinations and trained doctors, physicians assistants, and nurses in the exam techniques. When she examined S. H., she found her fearful, trembling, and tearful. S. H. told Stearns there had been vaginal penetration and attempts at anal penetration. She was unsure if anal penetration occurred, but painful attempts were made.

Using a colposcope, an instrument described as binoculars attached to an intense light source, Stearns conducted vaginal and anal exams. While the vaginal exam was unremarkable, in examining the anal area, Stearns found “edema or swelling and some redness and some bruising” which was abnormal. In Stearns’ opinion, the bruising was two to eight hours old. She could see the bruising with the naked eye, but used the colposcope, which was hooked to a monitor, so she could print any abnormal findings.

The evidence was legally sufficient. Jackson v. Virginia, supra; Johnson v. State, 245 Ga. App. 690, 691 (1) (538 SE2d 766) (2000).

2. McMorris contends that his trial counsel was ineffective because he failed to request a continuance or ask the trial court to [633]*633disallow State’s Exhibit 3, a printout from the colposcope; was not adequately prepared for trial; and failed to notify McMorris prior to trial that he had been reindicted and the charge of aggravated sodomy added to the rape charge so that he could make an informed decision whether to proceed to trial “and risk being sentenced to life without parole.”

To establish ineffectiveness, a defendant must prove that trial counsel’s performance was deficient and but for the deficiency a reasonable probability existed that the result of the trial would have been different. An error by counsel, even if professionally unreasonable, does not warrant reversal of a criminal conviction if it had no effect on the judgment.

(Citation omitted.) Mathis v. State, 238 Ga. App. 218, 221-222 (6) (517 SE2d 578) (1999).

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Bluebook (online)
588 S.E.2d 817, 263 Ga. App. 630, 2003 Fulton County D. Rep. 3148, 2003 Ga. App. LEXIS 1280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmorris-v-state-gactapp-2003.