Colon v. State

Decision Date11 August 2005
Docket NumberNo. A05A1125.,A05A1125.
Citation619 S.E.2d 773,275 Ga. App. 73
PartiesCOLON v. The STATE.
CourtGeorgia Court of Appeals

W. Keith Barber, P.C., Statesboro, for Appellant.

Richard Mallard, District Attorney, Keith A. McIntyre, Asst. District Attorney, for Appellee.

RUFFIN, Chief Judge.

A jury found Jose Fernando Colon guilty of five counts of aggravated child molestation, four counts of statutory rape, and four counts of furnishing alcohol to a minor. Colon appeals, alleging 13 enumerations of error. We find no merit to his enumerations of error, and affirm Colon's convictions.

On appeal from a criminal conviction, we view the evidence in a light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.1 Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.2 As long as there is some evidence, even though contradicted, to support each necessary element of the state's case, this Court will uphold the jury's verdict.3

Viewed in this light, the evidence shows that Colon, who is twenty-six years old, had an illicit sexual relationship with four minor girls, twelve and thirteen years of age. He also gave these girls alcohol to drink. Each of the girls testified as to the sexual acts Colon committed on them or on the other girls in their presence. Two condoms containing Colon's spermatozoa were recovered from a crime scene based on information from the victims.

1. In two separate enumerations of error, Colon argues the evidence was insufficient to support his convictions because the indictments contained language that specifically alleged the use of force in the commission of all the counts of the statutory rape, child molestation and furnishing alcohol to a minor, but the state failed to produce any evidence of force. These enumerations of error lack merit.

Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality.4 The inquiry is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.5 Here, the state used a form that alleged the use of "force and arms" prior to reciting the actual allegations against Colon. We have previously found that when the phrase "with force and arms" is not a part of the statute violated, "it is surplusage, unnecessary to constitute the offense, need not be proved, and may be disregarded."6

The actual allegations against Colon specifically set out the offenses of statutory rape, child molestation and furnishing alcohol to a minor. Force is not a necessary element of these offenses.7 Therefore, the state was not required to prove the use of force to sustain a conviction for these offenses. Because the phrase "force and arms" was not a part of the statutes violated, and because the indictment is couched in the words of the statute and correctly informs Colon of the offenses sought to be charged, the phrase is mere surplusage and may be disregarded.8 The variance between the indictment and the proof offered at trial did not affect Colon's substantive rights, prejudice the preparation of his defense or expose him to the possibility of subsequently having to stand trial for the same charges.9 Consequently, the trial court did not err in refusing to grant Colon's motion for a directed verdict of acquittal on this ground.

2. Colon contends the trial court erred in admitting inadmissible victim impact evidence during the guilt/innocence phase of the trial. Specifically, Colon complains about testimony from one of the victims and her grandmother regarding the victim's hospitalization at Charter and an attempt to commit suicide after the events for which Colon was charged. We first note that while Colon's attorney posed a few objections during the course of the testimony at issue, the attorney did not object to the testimony on the ground that it was impermissible victim impact evidence. "Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court."10

Notwithstanding Colon's waiver of this alleged error, we have thoroughly reviewed the cited testimony and find that the evidence presented was either clearly probative as to issues at trial or was reasonably offered to rebut evidence introduced by Colon in an attempt to cast aspersions on the victim.11 The record shows that Colon attacked the credibility and mental stability of this victim. However, the state is permitted to rehabilitate a witness whose credibility has been attacked.12 We find no error in the trial court's admission of this testimony.

3. Colon claims the district attorney or a member of the district attorney's staff was improperly present during the grand jury's deliberations and voting. He presented the testimony of a grand jury witness to support his assertion. This witness testified that someone from the district attorney's office remained in the room while the grand jury deliberated and voted on whether to indict Colon. Colon also presented testimony from the district attorney and the assistant district attorney who prosecuted his case. These witnesses testified that they could not actually remember being in the grand jury room during deliberations, but stated that it was not unusual for a prosecutor to remain in the grand jury room to prepare the next case that was to be presented. We note that Colon does not allege that the grand jury was deceived or misled by any prosecutorial misconduct before the grand jury. In addition, there has been no showing of any prejudice from any alleged prosecutorial misconduct during the grand jury proceedings.

Colon does not cite any Georgia case law which specifically addresses the presence of a prosecutor during grand jury deliberations and voting, and we can locate no Georgia case law specifically addressing the issue. However, in a 1997 unofficial opinion rendered at the request of a State Senator, the Attorney General of Georgia, though citing no state case addressing the practice, nevertheless concludes that prosecutors or members of their staff should not be present during deliberations of a grand jury because OCGA § 15-12-67, which requires secrecy in grand jury proceedings, by implication requires that only members of the grand jury are allowed to be present during deliberations and voting.13 We agree with the Attorney General's interpretation of the statute, but note that the indictment in this case was issued on June 5, 1995, nearly one and one-half years prior to the issuance of the unofficial opinion.

We also note that in a very strongly worded opinion, the United States District Court for the Southern District of Georgia, while acknowledging that the Court was unable to find any case law suggesting that a prosecutor violates the federal Constitution by remaining in the presence of the grand jury deliberations, condemns the practice, saying,

it appears almost inconceivable to the Court that at the end of the Twentieth Century, and after a two hundred year history of a constitutional form of criminal justice, that one could find a prosecutor anywhere in America who thought that it was permissible to have a district attorney and/or assistant district attorney present in a grand jury room during deliberation.14

Indeed, the judges of the Superior Court, Ogeechee Judicial District, where this case originated, issued a "Standing Order Regarding Grand Juries" on October 23, 1996, noting that within the Ogeechee Circuit the district attorney and assistant district attorney often remained "in the presence of grand juries during deliberations and the finding of true bills and no bills." This order mandated that the district attorney and his assistants immediately cease the practice, stating that "[t]hey shall remain separate and apart and outside of the sight or hearing of each grand jury while that body is deliberating, voting or deciding on any other action concerning any indictment."

Lest there be any remaining question as to the propriety of the practice in Georgia courts, we hold that it is harmful as a matter of law for a district attorney or members of his staff to remain in the presence of the grand jury while the grand jury is deliberating, voting or deciding on any other action concerning any indictment, and that an indictment obtained under such circumstances must be set aside.

Independence and secrecy of deliberation have been hallmarks of the American grand jury since colonial times.15 In our society, the grand jury functions as

the primary security to the innocent against "hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will."16

Because of the importance of the grand jury's role, its proceedings should not be subject to outside influence, especially by a prosecutor or a judge.17 "Prosecutors bear a particularly weighty duty not to influence the jury because the defendant has no representative to watch out for his interests before the grand jury."18 And we find it likely that the grand jury would be influenced by having the district attorney or a member of his staff present, given that the indictment was presented by the district attorney's office.19 As Justice Marshall wrote in dissent in United States v. Mechanik,20 "[t]he prejudicial impact of the...

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20 cases
  • Ward v. State
    • United States
    • Georgia Court of Appeals
    • October 31, 2019
    ...in a manner he can control rather than allow the subject matter to be presented in a more damaging fashion."); Colon v. State , 275 Ga. App. 73, 82 (9), 619 S.E.2d 773 (2005) (trial counsel’s cross-examination of a witness, which elicited improper bolstering testimony that the witness belie......
  • Damerow v. the State.
    • United States
    • Georgia Court of Appeals
    • July 6, 2011
    ...theory was not patently unreasonable, and Damerow has not shown that the strategy prejudiced his defense. See Colon v. State, 275 Ga.App. 73, 82(9), 619 S.E.2d 773 (2005) (trial counsel's cross-examination of a witness, which elicited testimony that the witness believed the victims, was the......
  • State v. Lora
    • United States
    • Hawaii Supreme Court
    • June 16, 2020
    ...which substantiates the credibility of a prosecuting witness on the question of guilt is relevant and material"); Colon v. State, 275 Ga.App. 73, 619 S.E.2d 773, 777 (2005) (holding that the admission of testimony regarding a victim's hospitalization and suicide attempt was proper because "......
  • Baker v. State
    • United States
    • Georgia Court of Appeals
    • November 24, 2008
    ...and seizure were unlawful, so as to afford notice of the legal issues which will be before the trial court"); Colon v. State, 275 Ga.App. 73, 81(7)(a), 619 S.E.2d 773 (2005) (in absence of warrant and affidavit court can look to testimony for evidence to support search). See also Davis v. S......
  • Request a trial to view additional results
7 books & journal articles
  • 16 Criminal Trial and Sentencing Procedure
    • United States
    • State Bar of Georgia Georgia Benchbook 2016 edition
    • Invalid date
    ...258 Ga. App. 502, 574S.E.2d610 (2002)], but issues can be waived by failing to raise them in motion [(see 16.33C5)]; see also Colon, 275 Ga. App. 73, 619 S.E.2d 773 (2005) (affidavit may be enough if existence of search warrant not disputed)]; Young, 282 Ga. 735, 653 S.E.2d 725 (2007) (non-......
  • 16 Criminal Trial and Sentencing Procedure
    • United States
    • State Bar of Georgia Georgia Benchbook 2022 edition
    • Invalid date
    ...258 Ga. App. 502, 574S.E.2d610 (2002)], but issues can be waived by failing to raise them in motion [(see 16.33C5)]; see also Colon, 275 Ga. App. 73, 619 S.E.2d 773 (2005) (affidavit may be enough if existence of search warrant not disputed)]; Young, 282 Ga. 735, 653 S.E.2d 725 (2007) (non-......
  • 16 Criminal Trial and Sentencing Procedure
    • United States
    • State Bar of Georgia Georgia Benchbook 2023 edition
    • Invalid date
    ...258 Ga. App. 502, 574S.E.2d610 (2002)], but issues can be waived by failing to raise them in motion [(see 16.33C5)]; see also Colon, 275 Ga. App. 73, 619 S.E.2d 773 (2005) (affidavit may be enough if existence of search warrant not disputed)]; Young, 282 Ga. 735, 653 S.E.2d 725 (2007) (non-......
  • 16 Criminal Trial and Sentencing Procedure
    • United States
    • State Bar of Georgia Georgia Benchbook 2017 edition
    • Invalid date
    ...258 Ga. App. 502, 574S.E.2d610 (2002)], but issues can be waived by failing to raise them in motion [(see 16.33C5)]; see also Colon, 275 Ga. App. 73, 619 S.E.2d 773 (2005) (affidavit may be enough if existence of search warrant not disputed)]; Young, 282 Ga. 735, 653 S.E.2d 725 (2007) (non-......
  • Request a trial to view additional results

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