Wynn v. State

744 S.E.2d 64, 322 Ga. App. 66, 2013 Fulton County D. Rep. 1757, 2013 WL 2350430, 2013 Ga. App. LEXIS 457
CourtCourt of Appeals of Georgia
DecidedMay 30, 2013
DocketA13A0176
StatusPublished
Cited by17 cases

This text of 744 S.E.2d 64 (Wynn 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
Wynn v. State, 744 S.E.2d 64, 322 Ga. App. 66, 2013 Fulton County D. Rep. 1757, 2013 WL 2350430, 2013 Ga. App. LEXIS 457 (Ga. Ct. App. 2013).

Opinion

DOYLE, Presiding Judge.

Following a jury trial, Donnie Lee Wynn was convicted of rape,1 child molestation,2 and incest.3 He appeals the denial of his motion for new trial, challenging the sufficiency of the evidence with regard to his rape and incest convictions. Wynn also argues that the trial court abused its discretion by denying his motion for continuance and that 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.”4

So viewed, the evidence shows that on Saturday, May 6, 2006, Wynn checked into a motel room containing a single, king-sized bed with his 15-year-old daughter.5 After the victim went to sleep, Wynn got into bed with her, wrapped his arm around her chest, and began rubbing her stomach. Wynn then put his hands down the victim’s underwear and put his fingers inside her vagina. He then turned her onto her back, pulled off her pants and underwear, and directed her to open her legs. When the victim, who was pretending to be asleep because she was frightened, failed to comply, he opened her legs and [67]*67then penetrated her with his hands and his penis. According to the victim, Wynn had sexual intercourse with her “all night.”

On Monday, May 8, 2006, the victim told her friend that “something happened with [her] dad.” Later that day, the victim and her friend were summoned to the principal’s office; “[b]oth girls were crying hysterically,” and the friend advised the principal that the victim “was raped by her father.” The victim then went to the school guidance counselor’s office, where she wrote a multi-page statement detailing the incident at the motel.

The victim was subsequently taken to the hospital, where a sexual assault kit was conducted, including cervical swabs. Authorities also obtained buccal swabs from both Wynn and the victim. Subsequent testing by the Georgia Bureau of Investigation (“GBI”) revealed that the cervical swabs taken from the victim contained spermatozoa, as well as the victim’s DNAand DNA of Wynn’s sperm cells.

Wynn testified at trial. He admitted that he took his daughter to a motel for the night on May 6, 2006, but he denied sexually assaulting her. Instead, Wynn testified that while the victim slept in the bed, he went in and out of the motel room while talking on the phone to his wife and watched television from a chair in the room, and he denied getting into the bed with the victim.

At the conclusion of the trial, the jury found Wynn guilty of rape, child molestation, and incest. The trial court denied Wynn’s subsequent motion for new trial, and this appeal followed.

1. Wynn contends that the evidence was insufficient to sustain his conviction for rape because the State failed to prove the element of force. We disagree.

“A person commits the offense of rape when he has carnal knowledge of. .. [a] female forcibly and against her will. . . . Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.”6

The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The fact that a victim is under the age of consent may supply the “against her will” element in a forcible rape case since it shows that the victim is incapable of giving legal consent. Importantly, only minimal evidence of force is required in order to prove rape of a child, and intimidation [68]*68may substitute for force. Further, force may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.7

Here, the victim testified that she pretended to be asleep during the assault because she was scared. When she failed to obey Wynn’s command that she open her legs, he pushed them open. As Wynn spoke to her, the victim did not reply and continued to pretend to be asleep. When Wynn went into the bathroom during the repeated acts of sexual intercourse, she remained motionless in the bed because she was scared to move. Further, the victim testified that it “did not feel good” when her father had intercourse with her.

“The testimony of a single witness is generally sufficient to establish a fact.”8 Here, “the victim’s testimony provided evidence of force necessary to support [Wynn’s] rape conviction[ ].”9 Thus, the trial court did not err by denying Wynn’s motion for new trial on this basis.

2. Next, Wynn challenges his conviction of incest, arguing that there was insufficient evidence of consanguinity. This argument is without merit.

OCGA § 16-6-22 (a) (1) provides in relevant part that “[a] person commits the offense of incest when such person engages in sexual intercourse ... with a person whom he ... knows he ... is related to either by blood or by marriage as . . . [f]ather and child.”

Wynn’s argument that there was insufficient evidence that he was the victim’s father is completely meritless, in light of the uncontested testimony of the victim and her mother that Wynn was the victim’s father, and, more importantly, Wynn’s repeated testimony at trial that the victim was his daughter.10 The trial court did not err by denying Wynn’s motion for new trial on this basis.

[69]*693. Wynn contends that the trial court abused its discretion by denying his motion for continuance made on the morning of trial. We disagree.

On October 22, 2007, Wynn filed a motion for serological testing of the DNA sample taken from the victim’s cervical swab during the sexual assault kit “to determine whether or not the DNA sample came from blood, saliva, semen, or sperm.” The trial court granted the motion on November 29, 2007. On January 8, 2008, GBI testing revealed the presence of spermatozoa and partially intact spermatozoa in the cervical smear slides, and the State faxed the results to Wynn’s trial counsel. The case was subsequently placed on a March 17, 2008 trial calendar. On March 10, 2008, Wynn filed a motion for continuance and for additional discovery, stating therein that although the defense had obtained the cervical swab from the victim, Wynn needed to obtain new “reference” buccal samples from himself and the victim for further testing by an independent laboratory.

The trial court heard argument on Wynn’s motion for continuance on the morning of the first day of the trial beginning April 21, 2008. Wynn’s trial counsel argued that he had just obtained the buccal swabs of the victim and the defendant two weeks previously, which did not give the laboratory enough time to perform additional testing. The State objected to a continuance, pointing out that the case had appeared on 14 calendars, including every available trial calendar beginning in February 2007, with a single exception.

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Bluebook (online)
744 S.E.2d 64, 322 Ga. App. 66, 2013 Fulton County D. Rep. 1757, 2013 WL 2350430, 2013 Ga. App. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynn-v-state-gactapp-2013.