Damare v. State

• Court: Georgia Court of Appeals
• Writing for the Court: ELLINGTON.
• Citation: Damare v. State, 257 Ga. App. 508, 571 S.E.2d 507 (Ga. App. 2002)
• Decision Date: 20 September 2002
• Docket Number: No. A02A0877.,A02A0877.
• Parties: DAMARE v. The STATE.

571 S.E.2d 507
257 Ga. App. 508

DAMARE
v.
The STATE

No. A02A0877.

Court of Appeals of Georgia.

September 20, 2002.

Certiorari Denied January 13, 2003.

571 S.E.2d 508

Richard D. Wilson, Riverdale, for appellant

Patrick H. Head, Dist. Atty., Bruce D. Hornbuckle, Dana J. Norman, Asst. Dist. Attys., for appellee.

ELLINGTON, Judge.

A Cobb County jury convicted Gregory Stephen Damare of four counts of child molestation, OCGA § 16-6-4(a).¹ He appeals from the denial of his motion for new trial, contending the trial court erred in refusing to charge the jury on lesser included offenses, in admitting evidence of similar transactions, and in failing to merge certain convictions for sentencing. He also challenges the sufficiency of the evidence. We affirm.

1. Damare complains that the evidence presented was insufficient to support his convictions.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. To sustain the conviction, the evidence must be sufficient to authorize the jury's finding of the defendant's guilt of the crime charged beyond a reasonable doubt.

(Citations and punctuation omitted.) Kapua v. State, 228 Ga.App. 193(1), 491 S.E.2d 387 (1997). "This Court determines only the legal [257 Ga. App. 509] sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses." (Citations and punctuation omitted.) Id. at 195(1), 491 S.E.2d 387. "Conflicts in the testimony of the witnesses, including the State's witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury verdicts will be upheld." (Citations and punctuation omitted.) Shelnutt v. State, 234 Ga.App. 655, 657(2), 506 S.E.2d 643 (1998).

Viewed in this light, the evidence showed that, in May 1997, Damare followed a 14-year-old girl (hereinafter "Victim One") as the girl walked home from school. Damare drove his car slowly alongside the girl, asked her to stop, and asked her questions, such as "What is your name?" and "Do you have a boyfriend?" Victim One did not know the man, who told her his name was "Steve." He asked her for her phone number and handed her a pencil and paper through the car window. Victim One decided to give him a fake number so that he would go away, but

571 S.E.2d 509

when she reached for the paper, she noticed he was not wearing any pants. She saw his exposed, erect penis. She decided to pretend she did not see anything and walked away. He continued following her in his car, asking her if she walked home every day. When she arrived home, he asked if it was her house. She replied "yes," and he drove away. Victim One alerted a neighbor, and they called the police immediately. Victim One identified Damare at trial as the man who exposed himself to her

Victim Two was a 13-year-old girl who was walking home from school in May 1997 when a stranger, Damare, approached her on his bicycle. He rode next to her and began asking her questions, such as her name and whether she played an instrument. He told her he was doing a "survey" and asked whether she was wearing a bra or underwear. Then, according to the girl, he "said that he wanted to lick my p— up and down and he was going to put his penis inside my p— and wouldn't I enjoy that." Surprised, Victim Two told him "to get the f— away from me you sicko," and he left. When she was sure he was gone, she went home, called her older sister, wrote down everything she could remember, and called the police when her mother got home approximately an hour later. Victim Two identified Damare at trial as the man on the bicycle.

A month later, Damare approached two 15-year-old girls (Victims Three and Four) after school in their high school parking lot. Damare drove up to within three to five feet of the girls and asked them if they would like to make some extra money...