Rhodes v. State

738 S.E.2d 135, 319 Ga. App. 684, 2013 Fulton County D. Rep. 230, 2013 WL 427385, 2013 Ga. App. LEXIS 44
CourtCourt of Appeals of Georgia
DecidedFebruary 5, 2013
DocketA12A2275
StatusPublished
Cited by1 cases

This text of 738 S.E.2d 135 (Rhodes 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
Rhodes v. State, 738 S.E.2d 135, 319 Ga. App. 684, 2013 Fulton County D. Rep. 230, 2013 WL 427385, 2013 Ga. App. LEXIS 44 (Ga. Ct. App. 2013).

Opinion

MILLER, Presiding Judge.

Following a jury trial, Earnest Rhodes was convicted of child molestation (OCGA § 16-6-4 (a)) and incest (OCGA § 16-6-22). Rhodes appeals from the denial of his motion for new trial, contending that (1) the trial court erred in failing to suppress the DNA evidence; (2) the trial court erred in charging the jury on similar transaction evidence; and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that the victim was born in 1985. Rhodes married the victim’s mother in 1991. When the victim was approximately eight years old, Rhodes made her come into her mother’s room and watch pornography while he sat there, played with his penis and ejaculated. When the victim was approximately ten years old, Rhodes started penetrating her vagina with his fingers and penis. After the first time, Rhodes forced the victim to perform oral sex and had sexual intercourse with her several times per week. Rhodes threatened to punish the victim if she refused to do what he wanted or reported him to anyone. Rhodes also told the victim that he would say she was a bad child, was out of control and was lying if she told anyone about the sexual abuse.

In 1998, when she was 13 years old, the victim gave birth to a full-term baby. The victim subsequently reported that Rhodes had been molesting her and that he was the father of her child. Several years later, a Richmond County Crime Scene Unit investigator obtained a search warrant for DNA buccal swabs from Rhodes for the purposes of DNAcomparison and paternity testing. Subsequent DNA testing confirmed that there was a 99.99 percent probability that Rhodes fathered the victim’s child. Rhodes was subsequently arrested and indicted for child molestation (OCGA § 16-6-4 (a)) and incest (OCGA § 16-6-22).

[685]*685At trial, the State presented similar transaction evidence1 showing that Rhodes watched pornographic movies with the victim’s sister, and had sexual intercourse with her several times a month beginning when she was 12 years old, and continuing until she was 18 years old. Following the presentation of evidence, the jury found Rhodes guilty of child molestation and incest.

1. Rhodes contends that the trial court erred in denying his motion to suppress the DNA evidence since there was insufficient probable cause to support the warrant to extract buccal swabs from his person for the DNA testing. We disagree.

In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009).

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, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citation and punctuation omitted.) Flewelling v. State, 300 Ga. App. 505, 509 (2) (685 SE2d 758) (2009).

Rhodes argues that the search warrant affidavit was insufficient because it omitted the fact that the victim had previously made inconsistent and contradictory claims regarding who fathered her child, the omitted information was material, and omission of this information was deliberately misleading.

[I]f a court determines that an affidavit submitted contains material misrepresentations or omissions, the false [686]*686statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant. Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.

(Citations and punctuation omitted.) Flewelling, supra, 300 Ga. App. at 512 (2) (b).

Assuming that the omitted information was material, and considering the affidavit as if the information had been included, the magistrate nevertheless had probable cause for issuing the search warrant. The affidavit in support of the search warrant stated that Rhodes had possibly fathered the victim’s child, Rhodes began a sexual relationship with the victim when she was ten years old, the sexual relationship continued until the victim was fifteen years old, the victim’s son was conceived during that time period, and the son’s father had not been scientifically identified. The information contained in the affidavit clearly implied the possibility that Rhodes was not the father of the victim’s child.

Therefore, the original affidavit showed a substantial basis for the magistrate to conclude that a crime had been committed and that evidence of that crime would be found in [Rhodes’s blood, and] the information that [Rhodes] claims was improperly omitted [did] not alter the basis for the issuance of the search warrant.

(Citations and punctuation omitted.) Farris v. State, 293 Ga. App. 674, 676 (1) (667 SE2d 676) (2008).

2. Rhodes contends that the trial court erred in charging the jury on similar transaction evidence. We find no error.

During the sister’s testimony regarding similar transactions, the trial court charged the jury that they could consider evidence of Rhodes’s similar transactions for the limited purpose of showing his state of mind, knowledge or intent in the charged crimes. The trial court gave a nearly identical instruction in its final jury charge, except that the trial court stated that the jury could consider the similar transaction evidence for the limited purpose of showing Rhodes’s bent of mind or course of conduct in the charged crimes. The trial court’s initial and final similar transaction charges were taken nearly verbatim from the pattern charge on similar transaction which both the State and Rhodes submitted at the beginning of trial.2

[687]*687Rhodes did not object to the trial court’s similar transaction charges; however, he belatedly attempted to reserve objections on the record after the trial court sent the jury out for deliberations.

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738 S.E.2d 135, 319 Ga. App. 684, 2013 Fulton County D. Rep. 230, 2013 WL 427385, 2013 Ga. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhodes-v-state-gactapp-2013.