Clemens v. State
| Decision Date | 12 October 2012 |
| Docket Number | No. A12A1146.,A12A1146. |
| Citation | 318 Ga.App. 16,733 S.E.2d 67 |
| Parties | CLEMENS v. The STATE. |
| Court | Georgia Court of Appeals |
318 Ga.App. 16
733 S.E.2d 67
CLEMENS
v.
The STATE.
No. A12A1146.
Court of Appeals of Georgia.
Oct. 12, 2012.
[733 S.E.2d 68]
Jimmonique R.S. Rodgers, Fort Gordon, James C. Bonner Jr., Athens, for Clemens.
Scott L. Ballard, Robert Wright Smith Jr., for The State.
DOYLE, Presiding Judge.
[318 Ga.App. 16]Following a jury trial, Trent D. Clemens was convicted of child molestation. Clemens appeals, arguing that the trial court erred by [318 Ga.App. 17]denying his demurrer, in charging the jury, and by excluding the testimony of his father. Clemens also challenges the sufficiency of the evidence. We affirm, for the reasons that follow.
“On appeal from [Clemens's] criminal convictions, we view the evidence in the light most favorable to the jury's verdict, and [Clemens] no longer enjoys a presumption of innocence. We neither weigh the evidence nor assess witness credibility, which are tasks that fall within the exclusive province of the jury.” 1
[733 S.E.2d 69]
So viewed, the record shows that on October 15, 2005, Clemens, his daughter, and his girlfriend, Meshea Webb, went to Thomaston, Georgia to stay with Webb's family. That night, Webb awoke to go to the bathroom and noticed light coming from beneath the closed door in the room where Clemens's daughter and Webb's six-year-old niece, I.M., were sleeping. Webb went into the room to turn off the light, and she saw Clemens, who was naked, on his knees on one of the beds, facing the wall. Webb asked Clemens what he was doing and startled him. When he moved, Webb realized that Clemens had been straddling I.M., who was lying on her stomach, with her shirt pulled up to her shoulder blades and what appeared to be oil on her body.
Clemens told Webb that he wasn't doing anything and told her to go back to sleep, but Webb insisted that he put on his clothes and go outside with her. On the front porch, Webb again asked Clemens what he was doing, and he told her that “he had a sexual addiction and a number of other things.” Webb asked him, “Why my niece?” and he replied, “Well, she's not mine.” Webb went back inside and confirmed that the girls were still asleep, and she asked her mother to call the police. Webb also put I.M.'s underwear back on the child and wiped the oil off of her body.
Sergeant Stephen O'Linger arrived at the home and spoke to Webb, who relayed her observations to him. Clemens told O'Linger that he decided to masturbate during the night and “felt like the best spot for him to do that was to go into the room where the girls were sleeping.” Clemens told another officer, Investigator Tim Ledbetter, that he decided to masturbate in the bedroom where the girls were sleeping because he could not find another place to do so. When asked about the oil found on I.M.'s buttocks, Clemens responded that he [318 Ga.App. 18]must have used too much oil while masturbating. Clemens was arrested and charged with child molestation.
At trial, the State introduced the testimony of Clemens's 13–year–old daughter, A.C., who testified that on April 29, 2006, Clemens penetrated her anus with his penis. Clemens also testified, explaining that he decided to masturbate in I.M.'s bed because he could not find another private place to do so. He conceded that it was a “[p]oor choice,” but noted that both girls were asleep at the time.
Clemens was convicted of child molestation and sentenced to serve 20 years. This out-of-time appeal of Clemens's conviction and the denial of his motion for new trial followed.
1. Clemens argues that the trial court erred by denying his motion to quash the indictment on the basis that it did not sufficiently advise him of what he needed to defend against.2 We disagree.
In the indictment, the State alleged that Clemens
did an immoral and indecent act, to-wit: said accused did straddle over the person of [I.M.] while said accused was naked[,] and said accused did masturbate while straddling over [I.M.], a child under 16 years of age, with intent to arouse and satisfy the sexual desires of said accused, contrary to the laws of said State, the good order, peace[,] and dignity thereof.
OCGA § 16–6–4(a)(1) provides: “A person commits the offense of child molestation when such person ... [d]oes 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 two requirements of an indictment are that it definitively inform the accused of the charges against him, so that he may present his defense and avoid surprises at trial, and that it protect the accused against another prosecution for the same offense. To that end, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count.” 3
[733 S.E.2d 70]
[318 Ga.App. 19][W]hen determining whether an indictment is sufficient to withstand a special demurrer, the applicable standard is not whether [the indictment] could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.4
Clemens argues that the indictment failed to specify whether the State charged that Clemens performed an immoral or indecent act to, with, or in the presence of I.M. and that he therefore did not know what allegations he was required to defend against. This argument is without merit. The indictment charged that Clemens masturbated while straddling I.M., which “apprised [Clemens] of the charge against him, and when and how it was committed. Accordingly, the indictment was sufficient to withstand a special demurrer.” 5
2. Clemens also alleges that the trial court erred by charging the jury that it could convict him of child molestation if it determined that he committed an indecent act merely in the presence of a child under 16, instead of instructing the jury that it had to prove the material allegation that he masturbated while straddling I.W. This enumeration provides no basis for reversal.
The trial court charged the jury that “[a] person commits the offense of child molestation when that person does an immoral and indecent act in the presence of a child less than 16 years of age with the intent to arouse and satisfy the sexual desires of the person.” Clemens argues this charge was error because it omitted any reference to the allegation that he masturbated while straddling I.M.
It is axiomatic that, in criminal prosecutions, the court's instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial. This is particularly true when the offense charged may be committed in one of several ways, but the indictment charges one specific method. Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage. Such averments must be proved...
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