Davenport v. State

• Decision Date: 15 June 2012
• Docket Number: No. A12A0146.,A12A0146.
• Citation: 12 FCDR 2046,316 Ga.App. 234,729 S.E.2d 442
• Parties: DAVENPORT v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 234
729 S.E.2d 442
12 FCDR 2046

DAVENPORT
v.
The STATE.

No. A12A0146.

Court of Appeals of Georgia.

June 15, 2012.

[729 S.E.2d 444]

Stanley W. Schoolcraft III, Stockbridge, for Davenport.

Tracy Graham Lawson, Elizabeth A. Baker, for The State.

MILLER, Judge.

[316 Ga.App. 234]Following a jury trial, Richard Lee Davenport was convicted of rape (OCGA § 16–6–1(a)(1)), solicitation of sodomy (OCGA § 16–6–15(a)), and incest (OCGA § 16–6–22(a)(1)).¹ Davenport filed a motion for a new trial, which the trial court denied. Davenport appeals, contending that (1) the evidence was insufficient to sustain his convictions ²; (2) THAT THE TRIAL COURT erred in failing to declare a mistrial after the prosecutor made improper comments during closing argument; (3) that he received ineffective assistance of counsel; and (4) that the trial court erred in quashing his subpoena for the production of prosecutor's closing argument notes. For the reasons that follow, we discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant [316 Ga.App. 235]guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] (1979).
(Citation omitted.) Mullis v. State, 292 Ga.App. 218, 664 S.E.2d 271 (2008).

So viewed, the evidence shows that Davenport married the victim's mother in October 2003, when the victim was 13 years old.³ One morning shortly thereafter, the victim was alone with Davenport inside the family's home when he called her to his room. When the victim entered Davenport's room, he

[729 S.E.2d 445]

locked the door, sat her on top of the dresser, and began kissing her on the neck and touching her breasts and in between her legs. Davenport then picked up the victim, placed her on the bed, took off her clothes, and had sexual intercourse with her. The victim had asked Davenport to stop, but he refused.

The victim recounted several additional incidents in which Davenport had sexual intercourse with her. The victim approximated that, between October 2003 and April 2004, she and Davenport had sex approximately 80 times. Davenport warned the victim not to tell anyone what he was doing to her and threatened to send the victim's brother away if she reported him.

When the family moved in April 2004, Davenport briefly stopped having sexual intercourse with the victim; a month or two later, however, Davenport resumed his frequent sexual advances towards her. In 2005, the victim's cousin temporarily lived with the victim's family. Early one morning, the cousin was sleeping in the victim's room when she heard Davenport enter the room and have sex with the victim. When the victim reported the incident to her mother, Davenport took the victim into a room and whipped her.

Despite the reports to the victim's mother, nothing was done to stop Davenport from continuing to have sexual intercourse with the victim. In March 2008, Davenport offered to pay the victim money for oral sex. The victim finally told her pastor that Davenport had been sexually assaulting her. The pastor subsequently contacted the police, and the victim was removed from the home and placed into foster care.

Upon turning 18 years old, the victim was forced to leave foster care, and she moved back in with her mother and Davenport in July 2008. The victim began locking her bedroom door in efforts to keep [316 Ga.App. 236]Davenport from sexually assaulting her. Davenport picked the lock, however, and he resumed the cycle of sexually assaulting the victim almost every day.

In January 2009, the victim called her brother for help, and the sexual abuse was reported to police again. Davenport was subsequently arrested and charged with various sexual assault offenses.

1. Davenport contends that the evidence was insufficient to sustain his convictions. We highly disagree.

(a) Incest.OCGA § 16–6–22(a) provides, in relevant part, that a person commits the offense of incest when he engages in sexual intercourse with a person to whom he knows he is related either by blood or by marriage, including as father and stepdaughter. The victim testified that Davenport had sexual intercourse with her on a frequent basis for over six years between October 2003 and January 2009, during which time Davenport was married to the victim's mother. Although Davenport contends that the victim's testimony was insufficient because it was uncorroborated, the testimony of a single witness is generally sufficient to establish a fact. See OCGA § 24–4–8. In any event, the victim's cousin testified that she was in the same room during one incident when Davenport and the victim had sexual intercourse. To the extent Davenport asserts that the victim and other witnesses were not credible, “[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Punctuation omitted.) Vega v. State, 285 Ga. 32, 33(1), 673 S.E.2d 223 (2009). Under these circumstances, the evidence in this case was sufficient to support the incest conviction. Stephens v. State, 305 Ga.App. 339, 340–341(1), 699 S.E.2d 558 (2010) (victim's testimony that she had sexual intercourse with the defendant, her stepfather, was sufficient to support incest conviction); Lewis v. State, 275 Ga.App. 41, 42(1), 619 S.E.2d 699 (2005) (same).

(b) Rape. Davenport contends that the evidence was insufficient to sustain his conviction for rape since it relied primarily on the victim's uncorroborated testimony and failed to establish the required element of lack of consent.

“A person commits the offense of rape when he has carnal knowledge of ... [a] female forcibly and against her will.” OCGA § 16–6–1(a)(1).

[729 S.E.2d 446]

It is well settled ... that a victim's testimony, without more, is sufficient to sustain a conviction for rape.... [I]n order to prove the rape of a child, only minimal evidence of force is required. Proof of physical violence, intimidation or threats may be used to prove force. And lack of resistance, induced by [316 Ga.App. 237]fear, is force, and may be shown by the victim's state of mind from her prior experience with the defendant and subjective apprehension of danger from him.

(Citations and punctuation omitted; emphasis supplied.) Siharath v. State, 246 Ga.App. 736, 739(2), 541 S.E.2d 71 (2000). Additionally, “force may be inferred by evidence of intimidation arising from the familial relationship, and may be proved by direct or circumstantial evidence.” (Punctuation and footnote omitted.) Williams v. State, 284 Ga.App. 255, 256–257(1)(a), (b), 643 S.E.2d 749 (2007)

Here, the victim stated that Davenport refused to stop when she told him that she did not want to have sex with him. Davenport repeatedly had sexual intercourse with the victim, threatening the victim not to tell anyone. After several years, the victim finally told her mother that she had been having sex with Davenport, and Davenport retaliated by beating the victim. Despite informing her mother, the mother did nothing to stop Davenport. Although the victim later reported Davenport to her pastor, she stated that she was afraid of reporting him to the police because she thought her family would disown her. This evidence was sufficient to establish the element of force, because “[w]hen a victim was repeatedly ... raped over a period of years despite [her] protests ... and her earlier outcry was unsuccessful, ‘the jury was authorized to find that, from the victim's perspective, resistance in [a] subsequent incident would have been futile.” (Citation and punctuation omitted.) Williams v....