Weeks v. State

729 S.E.2d 570, 316 Ga. App. 448, 2012 Fulton County D. Rep. 2262, 2012 WL 2401997, 2012 Ga. App. LEXIS 587
CourtCourt of Appeals of Georgia
DecidedJune 27, 2012
DocketA12A0745
StatusPublished
Cited by15 cases

This text of 729 S.E.2d 570 (Weeks 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
Weeks v. State, 729 S.E.2d 570, 316 Ga. App. 448, 2012 Fulton County D. Rep. 2262, 2012 WL 2401997, 2012 Ga. App. LEXIS 587 (Ga. Ct. App. 2012).

Opinion

BARNES, Presiding Judge.

A Cherokee County jury convicted Bernard William Weeks, Jr., of aggravated child molestation, and the trial court denied his motion for new trial. On appeal, Weeks contends that there was insufficient evidence to convict him because a fatal variance existed between the allegations in the indictment and the proof at trial; that the trial court erred in giving an overly broad jury charge on child molestation and an abbreviated charge on witness credibility; and that his trial counsel rendered ineffective assistance by requesting a jury charge [449]*449on witness credibility that was legally inaccurate. For the reasons discussed below, we affirm.

On appeal after a criminal conviction, we construe the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Boring v. State, 303 Ga. App. 576, 577 (1) (694 SE2d 157) (2010). So viewed, the evidence showed that Weeks lived in a trailer in Cherokee County with his wife and two stepchildren. On December 15, 2007, Weeks’s stepdaughter, L. H., left a note in the trailer for her mother in which she disclosed that Weeks “always make me suck his private parts.” L. H. was 11 years old at the time. When the mother found the note from L. H., she called 911. A police investigation ensued, culminating in the arrest and indictment of Weeks on the charge of aggravated child molestation.

At the subsequent jury trial, the State introduced into evidence the December 15 note from L. H. to her mother alleging that Weeks was abusing her sexually. L. H. confirmed that she wrote the note and testified that Weeks would call her into his bedroom and then force her to “suck” on his “private part” while “mov[ing] [her] head up and down.” According to L. H., the sexual abuse occurred over a period of time and would take place when her mother was at work or in the shower and her brother was in his room or outside. L. H. further testified that “white stuff” sometimes would come out of Weeks’s private part, and she described the area around his private part as being hairless.

During L. H.’s direct examination, the State also introduced an anatomical drawing of a male figure used during her prior forensic interview. When asked during the interview to circle the area on the male figure that represented Weeks’s “private part,” L. H. had circled the front genital area.

L. H.’s brother testified that sometimes L. H. and Weeks would be in the trailer alone together. According to the brother, sometimes Weeks would tell him he could go outside to play and then would lock him out of the trailer while Weeks remained inside with L. H.

Weeks did not testify. However, he gave a videotaped statement to the investigating detective, and the State played the statement to the jury, subject to certain redactions agreed upon by both parties. While Weeks denied to the detective that he had sexually abused L. H., he confirmed that he shaved his front genital area and locked L. H.’s brother out of the trailer on occasion.

After hearing all of the testimony, the jury convicted Weeks of the charged offense. Weeks moved for a new trial, asserting, among other errors, that his trial counsel rendered ineffective assistance. Following a hearing, the trial court denied the motion, leading to this appeal.

[450]*4501. A person commits child molestation by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (l).1 The crime is elevated to aggravated child molestation when the “person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c). Sodomy is “any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a) (1).

The indictment charged Weeks with aggravated child molestation in that he “did unlawfully then and there perform an immoral and indecent act of sodomy to a child under the age of 16 years, to wit: [L. H.], with the intent to arouse and satisfy the sexual desires of the accused and of the said child, contrary to the laws of this State, the good order, peace and dignity thereof.” The indictment did not specify what particular body parts or acts of sodomy constituted the charged offense.2

According to Weeks, the indictment, by averring that he did unlawfully perform an immoral or indecent act of sodomy to the victim, required evidence of an act involving his mouth and the victim’s sex organ. Because there was no evidence of such an act introduced in this case, Weeks maintains that there was a fatal variance between the allegations in the indictment and the proof at trial, and thus insufficient evidence to support his conviction of aggravated child molestation. We disagree.

As an initial matter, Weeks failed to raise the fatal variance issue in the trial court. Consequently, he has waived the issue for consideration on appeal. See Hanson v. State, 305 Ga. App. 900, 902 (2) (700 SE2d 896) (2010); Palmer v. State, 286 Ga. App. 751, 753-754 (2) (650 SE2d 255) (2007).

[451]*451In any event, “Georgia courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation and punctuation omitted.) Haley v. State, 289 Ga. 515, 529 (3) (a) (712 SE2d 838) (2011).

The true inquiry... is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

(Citation omitted.) Roscoe v. State, 288 Ga. 775, 776 (3) (707 SE2d 90) (2011).

Applying these tests to the case-at-hand, we conclude that there was no fatal variance. As noted above, the indictment did not spell out what particular body parts or acts of sodomy constituted the charged offense, and thus the indictment could reasonably be construed as encompassing an act of oral sodomy either involving Weeks’s mouth and L. H.’s sex organ, or involving L. H.’s mouth and Weeks’s sex organ.3 Moreover, the allegation in the indictment that Weeks did “perform an immoral and indecent act of sodomy to a child” did not necessarily require that the act involve Weeks’s mouth and the victim’s sexual organ. As the State points out in its brief, a man who places his penis in the mouth of a child reasonably can be said to “perform” an act of sodomy “to” that child.

In arguing for a more narrow definition of the word “perform,” Weeks relies upon Turner v. State, 231 Ga. App. 747, 748-749 (1) (500 SE2d 628) (1998), and Carolina v. State, 276 Ga.

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Bluebook (online)
729 S.E.2d 570, 316 Ga. App. 448, 2012 Fulton County D. Rep. 2262, 2012 WL 2401997, 2012 Ga. App. LEXIS 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weeks-v-state-gactapp-2012.