Bowman v. State

• Decision Date: 25 July 1997
• Docket Number: No. A97A1139,A97A1139
• Citation: 227 Ga.App. 598,490 S.E.2d 163
• Parties: , 97 FCDR 2982 BOWMAN, v. The STATE.
• Court: Georgia Court of Appeals

Page 163

490 S.E.2d 163

227 Ga.App. 598, 97 FCDR 2982

BOWMAN, v. The STATE.

No. A97A1139.

Court of Appeals of Georgia.

July 25, 1997.

Billy I. Daughtry, Jr., Elberton, for appellant.

Lindsay A. Tise, Jr., District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

BEASLEY, Judge.

Randall Lee Bowman was indicted on charges of child molestation (OCGA § 16-6-4) and burglary (OCGA § 16-7-1(a)). The child molestation count charged Bowman "with the offense of CHILD MOLESTATION (16-6-4), A FELONY for that the said accused ... did unlawfully commit an indecent act, to wit: accused did solicit C.S. (initials), a child under the age of 14 years, to engage in sexual intercourse and sodomy, and did request the said C.S. (initials), to place a condom on his penis, contrary to the laws of [Georgia], the good order, peace and dignity thereof." The burglary count accused Bowman of unlawfully entering the child's residence with the intent to commit child molestation.

At trial, the 13-year-old victim testified that in the early hours of June 28, 1995, Bowman entered her bedroom through the window without authority. He asked the child if he could suck her breasts, if he could have sexual intercourse with her, and if he could perform oral sex on her. He showed her a condom and asked if she would put it on his penis. He lay down on her bed and exposed his penis to her. She went and told her mother, who testified that when she arrived at the child's bedroom, she found Bowman lying on the child's bed with his pants unzipped. After he asked her not to turn him in, she showed him the door and called police, who came and found a bent screen at the child's bedroom window and a condom wrapper in the room on top of her teddy bear. Bowman later told the police it was his condom wrapper. He was convicted on both counts.

Bowman filed a motion for new trial on general grounds as to both counts and a motion in arrest of judgment as to child molestation on the ground that the indictment was legally insufficient to charge a violation of OCGA § 16-6-4. He appeals the denial of both motions but pursues no challenge to the burglary conviction.

1. "A challenge to the sufficiency of the substance of the indictment can be made after trial by means of a motion in arrest of judgment." Bramblett v. State, 239 Ga. 336, 338(1), 236 S.E.2d 580 (1977). See OCGA § 17-9-61. Bowman argues the indictment fails to allege an essential element of child molestation "because solicitation of a child to engage in sexual activities is not an indecent 'act' sufficient to constitute the crime of child molestation in the absence of any allegation of defendant's intent with regard to such solicitation."

"A motion to arrest judgment due to a defective indictment should be granted only where the indictment is absolutely void. [Cit.]" Campbell v. State, 223 Ga.App. 484, 485(3), 477 S.E.2d 905 (1996). "In attacking an indictment after the verdict, every presumption and inference is in favor of the verdict. [Cit.] By failing to file a demurrer before trial, [Bowman] waived his right to a perfect indictment. [Cit.]" Staples v. State, 199 Ga.App. 551, 405 S.E.2d 551 (1991). See Clarington v. State, 178 Ga.App. 663, 667(6), 344 S.E.2d 485 (1986) (" 'After conviction, an indictment will be construed most strongly in favor of the State' "); King v. State, 103 Ga.App. 272, 275(1), 119 S.E.2d 77 (1961).

OCGA § 16-6-4(a) defines child molestation as occurring when a person "does 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." The issue is whether soliciting a child to engage in the conduct described in the indictment, which solicitation Bowman refers to as an "inchoate" act because no touching occurred, sufficiently describes an act of child molestation where no specific intent of Bowman is alleged.

Immoral or indecent acts constituting child molestation refer to "acts which offend against the public's sense of propriety as well as to ... acts ... more suggestive of sexually oriented misconduct [to a child's body] than simply assaultive in nature." Chapman v. State, 170 Ga.App. 779, 780(1), 318 S.E.2d 213 (1984). An "act generally viewed as morally and sexually indelicate, improper and offensive" can constitute child molestation. Id. "A child's mind may be victimized by molestation as well." Smith v. State, 178 Ga.App. 300, 301(1), 342 S.E.2d 769 (1986). "The child molestation statute [was] enacted as part of a general legislative scheme to protect children under the age of 16 from physical and psychological damage resulting from sexual exploitation. [Cits.]" State v. Vines, 226 Ga.App. 779, 780, 487 S.E.2d 521 (1997). Thus, showing and describing the use of a condom to a child while having an erection, exposing one's penis to a child, or requiring a child to dance naked for the defendant have been held to be child molestation, even though in none of these cases did the defendant touch the child. Smith v. State, supra; Gunter v. State, 215 Ga.App. 517, 519(3), 451 S.E.2d 108 (1994); Thompson v. State, 187 Ga.App. 563(2), 564, 370 S.E.2d 819 (1988). ¹

Based on these considerations, we recently held valid a child molestation indictment "alleging that [the defendant] initiated a conversation with the child about sexual acts including fondling of private parts, intercourse and oral sodomy." Vines, supra at 781. "The sexually exploitative nature of the alleged act is not altered by the fact that it involved speech unaccompanied by other acts. Accordingly, the allegation of the conversation alone, without any further allegation of physical contact with the child or other conduct by [the defendant], was sufficient to satisfy the statutory requirement in OCGA § 16-6-4(a) that the accused committed an 'immoral or indecent act.' " Id.

Bowman's indictment accuses him of soliciting a child to engage in sexual intercourse and sodomy and of asking the child to place a condom on the defendant's penis, which acts could offend the public's sense of propriety, suggest sexually oriented misconduct to the child's body, and be viewed as morally and sexually indelicate, improper and offensive. These acts, which victimize the child's mind, are not inchoate but are in and of themselves violative of the statute. Vines, supra. Citing Wittschen v. State, 259 Ga. 448, 383 S.E.2d 885 (1989), Bowman claims such acts can at most constitute attempted child molestation. Wittschen, however, holds that soliciting a child on a public highway to engage in sexual misconduct may constitute attempted child molestation; it does not address whether such may also constitute child molestation.

Bowman argues that the indictment's failure to allege that he committed the acts of solicitation with the intent to arouse or satisfy his or the child's sexual desires is fatal. "It is an elementary rule of criminal procedure that an indictment should contain a complete description of the offense charged, and that there can be no conviction unless every essential element thereof is both alleged in the indictment and proved by the evidence. However, an indictment substantially in the language of the Code is sufficient in form and substance. Where the indictment alleges an offense, ... and alleges that the act was unlawfully committed, and that it was contrary to the laws of the State, and employs language from which it must necessarily be inferred that the criminal intent existed, it is not void because...