Cornelius v. State, A94A0376

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: McMURRAY; POPE, C.J., and SMITH
• Citation: 445 S.E.2d 800,213 Ga.App. 766
• Parties: CORNELIUS v. The STATE.
• Docket Number: No. A94A0376,A94A0376
• Decision Date: 24 June 1994

Page 800

445 S.E.2d 800 213 Ga.App. 766 CORNELIUS
v.
The STATE. No. A94A0376. Court of Appeals of Georgia. June 24, 1994.
Reconsideration Denied July 8, 1994.
Certiorari Denied Oct. 28, 1994.

Page 802

[213 Ga.App. 773] John Matteson, Atlanta, for appellant.

David McDade, Dist. Atty., Lois W. Gerstenberger, Asst. Dist. Atty., for appellee.

[213 Ga.App. 766] McMURRAY, Presiding Judge.

Defendant was charged with child molestation, enticing a child for immoral purposes, kidnapping with bodily injury and interstate interference with child custody for acts committed against the victim, a minor female child. The evidence adduced at the jury trial reveals the following: Defendant met the victim and the victim's family when he was 21 years of age. Over the next five years, defendant developed an attraction for the victim, cultivated a close relationship with her family and gave the victim expensive gifts. By the time the victim was 11 years of age, defendant (then 26 years of age) openly displayed intimate physical affection with the child. In October 1991, a neighbor observed defendant touching the victim's mouth with his mouth and tongue, i.e., "french kissing," and reported the incident to the Douglas County Department of Family & Children Services ("DFACS"). During an investigation, defendant admitted to investigators from DFACS and the Douglas County Police Department that he had "french kissed" the victim and stated that he and the child "loved each other and that they just held each other occasionally, a loving kiss between each other, that sort of thing." When questioned

Page 803

about his attraction to young girls, defendant stated, "I know those feelings aren't right; I know they're not right."

The victim was medically examined pursuant to the DFACS investigation and there were no physical signs of sexual activity in the child's private area. Nonetheless, DFACS directed that the victim have no further contact with defendant and the DFACS investigation resulted in a charge (via accusation) against defendant for simple battery. However, in defiance of the DFACS directive for the victim not to contact defendant and while the simple battery charge remained pending, defendant contacted the victim and encouraged her to resist parental authority and discipline. Specifically, defendant told the victim[213 Ga.App. 767] that her parents were "mean to [her], because [she] had to take care of [her] sisters and brother." Defendant later told the victim that "if [she] wanted to leave [home, she] could," but not to tell her mother and stepfather "[b]ecause they would try to stop us." The victim agreed and defendant began marshalling his financial resources. ¹

At 11:30 p.m. on February 4, 1992, defendant picked up the victim (then 12 years of age) outside her home and drove her to Cartersville, Georgia, where he acquired a motel room and had intercourse with the victim. Thereafter, defendant drove the victim to a Tennessee lodge and kept her there for several weeks. During this period, defendant frequently engaged the victim in sexual intercourse. The child did not resist, but she "didn't feel that [she] could say no." Defendant later fled from Tennessee because he feared apprehension by federal law enforcement authorities. Defendant then drove the victim through several states, including Texas, Nevada and California.

During the ordeal, the victim cried because she was homesick. She wanted to call home but was afraid to use the telephone in defendant's presence. When the victim attempted to call home, she could not figure out how to place the call. Nearly two months after defendant left Georgia, he was apprehended in California with the victim. However, before defendant was taken into custody, he instructed the victim "not to tell [the law enforcement officers] that [they] had had sex and that [she] didn't want to go back home to my mom."

The jury found defendant guilty of all charges. This appeal followed the denial of his motion for new trial. Held:

1. In his first enumeration, defendant asserts the general grounds, arguing that he cannot be guilty of kidnapping with bodily injury because the victim is his common-law wife.

Generally, a 12-year-old child is not competent to enter into a valid marriage contract without the consent of her parent or guardian. OCGA § 19-3-2(2). See also Handley v. State, 115 Ga. 584, 585, 41 S.E. 992. Compare Cochran v. State, 91 Ga. 763, 18 S.E. 16. In the case sub judice, there is no evidence that the victim's mother consented to any common-law marriage. Further, the mother denied that she knew or approved of defendant's plan to leave Georgia with her minor daughter and she reported her daughter's disappearance to the police. Nonetheless, defendant argues that a valid marriage existed [213 Ga.App. 768] under California law. This argument is without merit. The law of California on the subject of common-law marriage was not pleaded and proved in conformity with the requirements of OCGA § 24-7-24. In the absence of such properly authenticated evidence, the laws of other states are presumed to be the same as those in effect in Georgia. Craighead v. Davis, 162 Ga.App. 145, 146(2), 290 S.E.2d 358.

Next, defendant contends the evidence was insufficient to support the allegation that he committed child molestation by kissing the victim with intent to arouse his sexual desires.

Page 804

Whether an act is committed with the requisite criminal intent is a question for the jury "upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." OCGA § 16-2-6. See Blanton v. State, 191 Ga.App. 454(1), 455, 382 S.E.2d 133. In the case sub judice, it is undisputed that defendant touched the mouth of the 11-year-old victim with his mouth and tongue when defendant was 26 years of age. Further, the victim testified that the "french kissing" felt "weird." There was also testimony that defendant acted on his sexual impulses with a 14-year-old girl three years before he "french kissed" this victim. This evidence is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of child molestation as alleged in the indictment. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Branam v. State, 204 Ga.App. 205, 206, 419 S.E.2d 86. In other words, it was for the jury to decide whether it was immoral or indecent for a 26-year-old man to "french kiss" an 11-year-old child. See McCord v. State, 248 Ga. 765, 766, 285 S.E.2d 724.

Last, defendant contends that venue was improper in Douglas County, Georgia, arguing that the crimes occurred outside the State of Georgia. Venue for the prosecution of kidnapping with bodily injury lies in the county where the victim was seized, even though the bodily injury may have been inflicted in a different county. Potts v. State, 261 Ga. 716, 720(2), 410 S.E.2d 89. Likewise, venue for the prosecution of enticing a child for immoral purposes lies in the county where the child was first enticed. OCGA § 17-2-2(a). Venue for the prosecution of interstate interference with child custody is proper in the Georgia county where the child is enticed away from the lawful custodian. See OCGA §§ 17-2-1(b)(1); 17-2-2(a). Consequently, since the evidence showed that defendant initiated each of the crimes charged in Douglas County, Georgia, prosecution of defendant for the crimes alleged in the indictment was proper in Douglas County, Georgia.

2. In his second enumeration, defendant contends the trial court erred in failing to order a mental evaluation of him. He argues that the "bizarre" circumstances of trial demanded the court to stay the [213 Ga.App. 769] proceedings and make inquiry into his mental condition.

In Georgia, the trial court may exercise its inherent discretionary authority "to order a psychiatric examination, but the refusal to do so will not be reversed unless it is shown that the want of an examination would infringe upon the defendant's right to a fair trial as guaranteed by the Georgia Constitution." Williams v. Newsome, 254 Ga. 714, 716, 334 S.E.2d 171. "However, in addition to the common law and statutory rights of a defendant not to be tried while...