Boileau v. State

• Decision Date: 12 April 2007
• Docket Number: No. A07A0385.,A07A0385.
• Citation: 285 Ga. App. 221,645 S.E.2d 577
• Parties: BOILEAU v. The STATE.
• Court: Georgia Court of Appeals

285 Ga. App. 221

645 S.E.2d 577

BOILEAU v. The STATE.

No. A07A0385.

Court of Appeals of Georgia.

April 12, 2007.

Reconsideration denied May 4, 2007.

Jeffrey L. Grube, Warner Robins, for Appellant.

Kelly R. Burke, Dist. Atty., Timothy M. Marlow, Asst. Dist. Atty., for Appellee.

SMITH, Presiding Judge.

A jury found William Dean Boileau guilty of aggravated child molestation and aggravated sodomy. On appeal, he challenges the sufficiency of the evidence of his guilt and the trial court's admission of similar transaction evidence. Because these challenges are without merit, we affirm.

Construed in favor of the verdict, the evidence reveals that en route to Ocala, Florida from Missouri, Boileau, his father, mother, and niece — the ten-year-old victim-stopped in Perry, Georgia (Houston County) to refuel. The family traveled in a Ford truck with a camper on the back. Before the stop, Boileau and his father were riding in the cab of the truck while the victim and Boileau's mother slept in the camper.

After the stop in Perry, Boileau moved into the camper and his mother moved to the cab of the truck. The victim testified that at some point she awoke when she felt Boileau pulling her pants and underwear down. She testified further that Boileau then "started licking [her] down there." The victim later told a Department of Family and Children Service investigator that after Boileau put his mouth on her vagina, she felt something pushing into her vagina and that she was not sure if it was Boileau's finger or penis, but that she thought it was his penis because she did not feel a fingernail. She stated further that she then felt Boileau shaking, and that when he stopped, she felt "slimy stuff" on her body. She told the investigator that during this encounter, "[s]he felt that — she couldn't say anything. She was very scared, she just wanted him to stop." The victim explained that she later felt a burning sensation while urinating. Once the victim arrived in Ocala, Florida, she wrote Boileau's mother (her grandmother) a note explaining what Boileau had done while they were in the camper together and left it on her grandmother's bed.

Boileau was charged with aggravated sodomy and aggravated child molestation for placing his mouth on and licking the victim's vagina, and also charged with child molestation for penetrating the victim's vagina with his finger. The jury acquitted Boileau of child molestation, but found him guilty of both aggravated sodomy and aggravated child molestation. The trial court merged the aggravated child molestation conviction into the aggravated sodomy conviction and sentenced Boileau to 30 years, allowing 12 of those years to be served on probation.

1. Boileau challenges the sufficiency of the evidence on several grounds. On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt. Id.

( a) Boileau contends that the evidence was insufficient to sustain his conviction because there was no evidence of force as required for the crime of aggravated sodomy. OCGA § 16-6-2(a)(2) provides in part that "[a] person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age." Our courts have held that "[t]he term force includes not only physical force, but also mental coercion, such as intimidation. Lack of resistance, induced by fear, is force." (Citations, punctuation and footnote omitted.) Brewster v. State, 261 Ga. App. 795, 797(1)(b), 584 S.E.2d 66 (2003). Moreover, "[f]orce may be proved by direct or circumstantial evidence." (Citation, punctuation and footnote omitted.) Schneider v. State, 267 Ga.App. 508, 510(1), 603 S.E.2d 663 (2004). And "[a]s with rape, only a minimal amount of evidence is necessary to prove that an act of sodomy against a child was forcible." (Citations omitted.) Brewer v. State, 271 Ga. 605, 607, 523 S.E.2d 18 (1999).

Here, the victim stated that she was "very scared" and that she wanted Boileau to stop. This testimony establishes that the victim's lack of resistance was induced by fear. Moreover, Boileau's conduct in pulling down the victim's pants and underwear while she was asleep is some evidence of physical force. These facts are similar to facts in Schneider, supra, where the victim stated that he "freaked out" when Schneider performed oral sex on him and that he did not tell Schneider to stop because he trusted Schneider like a father figure. Id. at 509, 603 S.E.2d 663.

Boileau argues that the Georgia Supreme Court's ruling in Brewer, supra, demands a different result. Brewer is distinguishable, however, because the victim in that case "repeatedly denied every suggestion of physical force, threats, and intimidation." Id. at 607, 523 S.E.2d 18. The court held that "the record reveals no evidence that the victim was in fear before or during any act of molestation." Id. at 608, 523 S.E.2d 18.

In this case, there is circumstantial evidence that the victim's lack of resistance was induced by fear experienced during her encounter with Boileau, and that some evidence of physical force was presented by Boileau's pulling down the pants and underwear of the victim. There was therefore sufficient evidence of force to sustain Boileau's conviction for aggravated sodomy. See Schneider, supra, 267 Ga.App. at 510(1), 603 S.E.2d 663; compare Howard v. State, 281 Ga.App. 797, 800-802(3), 637 S.E.2d 448 (2006) (no force shown where defendant talked his 15-year-old sister into engaging in sexual relations with him).

(b) Boileau also argues that there was insufficient evidence to establish venue. OCGA § 17-2-2(e) provides, however, that

[i]f a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.

The evidence here revealed that Boileau entered the camper after the family stopped in Perry, Georgia (Houston County), and that he soon thereafter performed the sex acts against the victim. This was sufficient to establish that the crimes could have been committed in Houston County, Georgia. See Dillard v. State, 223 Ga.App. 405, 406(2), 477 S.E.2d 674 (1996).

2. Boileau argues that the trial court erred in allowing the introduction of a 1991 incident where he admitted to licking the vagina of a four-year-old child.

To qualify for admission as a similar transaction, the State must show that (1) it is introducing the evidence for an appropriate purpose, (2) sufficient evidence establishes that the accused committed the independent offense, and (3) sufficient similarity exists between the independent offense and the crime charged, so that proof of the former tends to prove the latter.

(Citation and punctuation omitted.) Williams v. State, 279 Ga.App. 83, 86(3)...