Burgess v. State
| Decision Date | 05 January 1989 |
| Docket Number | No. 77186,77186 |
| Parties | BURGESS v. The STATE. |
| Court | Georgia Court of Appeals |
David F. Dickinson, Monroe, for appellant.
John M. Ott, Dist. Atty., J. Ellis Millsaps, Asst. Dist. Atty., for appellee.
Following the denial of his motion for new trial, Burgess appeals his conviction and sentence for child molestation, OCGA § 16-6-4(a). Burgess was indicted for statutory rape, OCGA § 16-6-3. He does not appeal his conviction and sentence for escape, OCGA § 16-10-52, despite his challenge to the fairness of the trial.
The evidence viewed so as to uphold the verdict, Thomas v. State, 175 Ga.App. 873, 874(1), 334 S.E.2d 903 (1985), showed the following: Burgess took his girl friend's three young children to visit a neighbor's farm. He instructed the six-year-old and the three-year-old to remain at the chicken house and took the nine-year-old girl into the woods. He told the girl to pull her clothes down. He pulled her underwear down around her ankles. Burgess took off some of his clothes and lay down on top of her. He stuck his penis in the girl's vagina and began moving up and down. Burgess stopped when he saw the farm's owner who had come to investigate when he saw the two youngest children standing by themselves with Burgess and the older girl not in sight. Burgess instructed the girl to run back into the woods which she did. She pulled her clothes back on.
The farm's owner testified that he saw Burgess and the girl lying in a low place in the woods and that Burgess was on the little girl, "hunching up and down," "sexing her." Although the examining physician saw no evidence of injury to the child more than a day after the incident, he agreed that he could not be medically certain that the victim did not have sexual intercourse, and that if the grown man had not actually penetrated the vagina but had merely rubbed his penis up and down between the girl's legs, there would be no visible signs.
1. Appellant contends the State failed to prove his guilt beyond a reasonable doubt. The evidence was sufficient to enable any rational trier of fact to find Burgess guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends that the trial court erred in charging the jury that child molestation was "as a matter of law" a lesser included offense of statutory rape. He argues that he was deprived of due process because he was indicted only for statutory rape, in narrow terms, and there were no allegations relating to the more general separate offense of child molestation. Child molestation, he contends, has heretofore not been determined to constitute an included offense of statutory rape as a matter of law.
OCGA § 16-1-6 provides that a crime is a lesser included offense when, "[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; ..." or "[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission."
The statute provides for a "more lenient 'alternative' test, rather than the narrower 'conjunctive' standard prevailing in federal courts," Ramsey v. State, 145 Ga.App. 60, 64(10), 243 S.E.2d 555 (1978), rev'd on other grounds, 241 Ga. 426, 246 S.E.2d 190 (1978), applying Pryor v. State, 238 Ga. 698, 234 S.E.2d 918 (1977). That is, a lesser offense may be included in the greater offense as a matter of fact or as a matter of law.
The indictment charged that Burgess "did engage in sexual intercourse with [the victim], a female under the age of 14 years, not his spouse." The narrower wording of the act, which because it is more physically invasive is a greater offense, fits within the definition of child molestation, which occurs when one "does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4. The latter is lesser in degree in relation to statutory rape. Glisson v. State, 181 Ga.App. 585(1), 353 S.E.2d 202 (1987). It is lesser in that it is an act approaching but not reaching sexual penetration.
Contrary to appellant's contention, the trial court did not charge the jury that child molestation was a lesser included offense of statutory rape "as a matter of law" but that after considering the testimony and evidence presented, if the jury did not find defendant guilty of statutory rape, it could in this case then consider the lesser included offense of child molestation. The evidence shows that child molestation was a lesser included offense of statutory rape as a matter of fact. See Coker v. State, 164 Ga.App. 493, 495(3), 297 S.E.2d 68 (1982).
The trial court did not err in instructing the jury that it could return a verdict on child molestation. Lamar v. State, 243 Ga. 401, 402(3), 254 S.E.2d 353 (1979); Parker v. State, 256 Ga. 543, 548(2), 350 S.E.2d 570 (1986).
3. Appellant contends that the trial court abused its discretion in allowing the victim to testify over his objection to her competency.
Grier v. State, 257 Ga. 539(1), 361 S.E.2d 379 (1987), applying OCGA §§ 24-9-5 and 24-9-7(a).
The child, who was nine or ten and in the third grade when she testified, stated: she knew what the truth was; it was better to tell the truth than to lie; she was going to tell the truth; she might get in trouble if she lied. She also testified that she understood what it would be if she was asked to raise her hand and swear to tell the truth, that it would be an oath, and that if she violated the oath and told lies there was a penalty and she might get in trouble.
The trial court did not abuse its discretion in finding the child victim competent to testify.
4. Appellant contends that the trial court erred in overruling his motion under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenging the State's use of its peremptory strikes.
Defendant, who is...
To continue reading
Request your trial
-
Hutton v. State, A89A0396
...of the trial court's discretion in its determination that the child was competent to testify. See generally Burgess v. State, 189 Ga.App. 790, 792(3), 377 S.E.2d 543 (1989). 2. Several witnesses for the State testified as to statements allegedly made to them by the child. The admission of t......
-
Britt v. State
...to determine if the defendant has established purposeful discrimination.' (Punctuation and citations omitted.) Burgess v. State, 189 Ga.App. 790, 792-793 (377 S.E.2d 543) (1989). The defendant has the burden to complete the record to establish a prima facie case with information revealing '......
-
Woods v. State
...blacks from the petit jury on the basis of race. Aldridge v. State, 258 Ga. 75, 77-79, 365 S.E.2d 111 (1988); Burgess v. State, 189 Ga.App. 790, 792-793, 377 S.E.2d 543 (1989). In developing the evidence of a prima facie case for the trial court's consideration, the defendant "has the burde......
-
Moore v. American Suzuki Motor Corp.
...357 S.E.2d 792. The trial court then must determine if a case of purposeful discrimination has been established. Burgess v. State, 189 Ga.App. 790, 793(4), 377 S.E.2d 543 (1989). The trial court's findings are entitled to great deference and will be affirmed unless clearly erroneous. Gamble......