Davidson v. State, A98A0738.

• Citation: 499 S.E.2d 697,231 Ga. App. 605
• Decision Date: 11 March 1998
• Docket Number: No. A98A0738.,A98A0738.
• Parties: DAVIDSON v. The STATE.
• Court: Georgia Court of Appeals

499 S.E.2d 697

231 Ga. App. 605

DAVIDSON v. The STATE.

No. A98A0738.

Court of Appeals of Georgia.

March 11, 1998.

Reconsideration Denied March 25, 1998.

Troy R. Millikan, Gainesville, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee. ELDRIDGE, Judge.

The defendant, Gerald Alton Davidson, appeals his May 1997 conviction on two counts of child molestation, four counts of aggravated sodomy, two counts of aggravated child molestation, three counts of aggravated sexual battery, two counts of cruelty to children, and one count of statutory rape. We affirm.

"On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]" Grant v. State, 195 Ga.App. 463, 464, 393 S.E.2d 737 (1990); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence shows that, from 1991 until 1996, the defendant was involved in a relationship with the victims' mother. The relationship was often violent. The victims, two girls who were approximately five and seven years old in 1992, testified that the defendant repeatedly molested them separately and while they were together. Specifically, they testified that the defendant touched their genital areas with his hands and with a vibrator; forced them to perform oral sex on him; performed oral sex on them; raped them; and masturbated in their presence. Both victims testified that the defendant forced them to watch violent, pornographic movies in his bedroom. One victim testified that the defendant told her that "it'll make [sex] better so I could ... see how those women were doing it on TV so I would understand how to do it." Both victims testified that, before and after the sex acts, the defendant gave them cigarettes, alcoholic beverages, and candy. He also threatened to harm them and their mother if they told anyone.

Eventually, one of the victims reported the abuse to a school counselor, who contacted the victim's mother. However, the mother questioned the defendant, who denied the acts, and the mother concluded that the victim was lying or that any contact by the defendant was accidental. No charges were brought against the defendant. The victim testified that, because her mother did not believe her, she never told her about the continuing abuse again.

However, in September 1996, one of the victims reported the abuse and was questioned both by a caseworker from the Georgia Department of Family & Children Services ("DFCS") and an investigator with the Banks County Sheriff's Department. The defendant was arrested and a search warrant was executed. During the search, investigators found sexually explicit magazines and videotapes, vibrators, other sexual toys, and a "masturbation machine" which was designed and built by the defendant. They also found several pairs of children's underwear, which were heavily stained and tested positive for seminal fluid without the presence of sperm.

The defendant was tried in May 1997 and convicted on all counts. He appeals.

1. In his first enumeration of error, the defendant asserts that the trial court erred in refusing to sever the trials. We disagree. The defendant was charged with, inter alia, molesting two sisters in the same manner and place. Although some acts occurred while the defendant was alone with one child, other acts were conducted on the children simultaneously.

"Offenses may be joined with are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. There was more than sufficient evidence showing that the crimes charged in the indictments were a series of acts connected together. Consequently, the trial court did not abuse its discretion in denying [the defendant's] motion to sever." (Citations and punctuation omitted.) Evans v. State, 188 Ga.App. 379, 380, 373 S.E.2d 70 ( 1988); see also Carroll v. State, 199 Ga.App. 8, 403 S.E.2d 875 (1991); Stinson v. State, 197 Ga. App. 687, 688, 399 S.E.2d 278 (1990) (finding no abuse of discretion in denial of a motion to sever where the similarity of the crimes reaches the level of a pattern).

2. In his second enumeration, the defendant claims that the trial court was required to quash the indictment, asserting that it (a) was unconstitutionally vague, and (b) failed to provide adequate notice of the exact dates of the offenses.

(a) The defendant asserts that the statute upon which the indictment was partially based, OCGA § 16-6-4, defines child molestation in a "vague and indefinite manner" and is therefore unconstitutional under both the United States and Georgia Constitutions. The defendant asserts that the statute "(1) fails to provide persons of ordinary intelligence with notice that it purports to prohibit certain conduct, and (2) lacks definite and explicit standards to guide its enforcement[.]"

However, in McCord v. State, 248 Ga. 765, 766, 285 S.E.2d 724 (1982), the Supreme Court of Georgia upheld the constitutionality of the statute. The Supreme Court determined that "[t]he phrase `any immoral or indecent act' in conjunction with the requisite element of the offense that the act be committed `with the intent to arouse or satisfy the sexual desires of either the child or the person' is sufficiently definite. `We find the statute to be definite and certain in its meaning. Men of common intelligence would not differ as to the application of its provisions.' Anderson v. Little, etc., Funeral Home, 242 Ga. 751, 753, 251 S.E.2d 250 (1978)." McCord, supra at 766, 285 S.E.2d 724. "Where a law has been held to be constitutional as against the same attack being made, the case requires merely an application of unquestioned and unambiguous constitutional provisions and jurisdiction of the appeal is in the Court of Appeals. [Cit.]" Zepp v. Mayor, etc., of Athens, 255 Ga. 449, 451, 339 S.E.2d 576 (1986).

Further, in "determining the sufficiency of the notice, the challenged `statute must of necessity be examined in the light of the conduct with which a defendant is charged. (Cit.)' United States v. Nat. Dairy Products Corp., 372 U.S. 29, 33(II), 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963)." Hall v. State, 268 Ga. 89, 96, 485 S.E.2d 755 (1997) (Carley, J., dissenting). In this case, the defendant was indicted for various acts that clearly were prohibited by the statute as being immoral or indecent. These acts included, inter alia, touching the children's genital areas with his fingers and a vibrator in an effort to arouse or satisfy his own sexual desires. In addition, under separate counts, the defendant was indicted for engaging in oral sodomy and sexual intercourse with the children. As such, there is no merit in the defendant's assertion that he lacked statutory notice that these acts were prohibited.

[ 499 S.E.2d 703]

(b) The defendant also claims that the indictment was defective because it failed to specify that the exact dates of the illegal acts were unknown to the Grand Jury. However, "[w]here the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations," as long as the defendant is not surprised or prejudiced by presentation of evidence that the offenses occurred at a time "substantially different from that alleged in the indictment." (Citations and punctuation omitted.) Hutton v. State, 192 Ga.App. 239, 241, 384 S.E.2d 446 (1989). The defendant's assertion that the five-year period encompassed "too many offenses over a too long [of a] time span and against two different victims" does not establish such prejudice or surprise. There was no error in the trial court's refusal to quash the indictment.

3. In his third enumeration, the defendant asserts that the trial court erred when it admitted into evidence videotapes depicting various types of sexual activity, including one videotape which depicted sexual torture and murder.¹ We disagree.

"Admission of evidence is a matter which rests largely within the sound discretion of the trial judge, and if the evidence has a tendency to establish a fact in issue, that is sufficient to make it relevant and admissible. The Georgia rule favors admissibility of any relevant evidence no matter how slight its probative value." (Citations omitted.) Tyler v. State, 176 Ga.App. 96, 99, 335 S.E.2d 691 (1985); see also Holman v. State, 202 Ga.App. 57, 58, 413 S.E.2d 234 (1991). It is well established that sexually explicit videotapes and other paraphernalia are "admissible to show the lustful disposition and bent of mind of the defendant. [Cits.]" Tyler, supra at 100, 335 S.E.2d 691; see also McBee v. State, 228 Ga.App. 16, 26, 491 S.E.2d 97 (1997); Miller v. State, 219 Ga.App. 213, 217, 464 S.E.2d 621 (1995); King v. State, 209 Ga.App. 529, 530, 433 S.E.2d 722 (1993); Burris v. State, 204 Ga.App. 806, 808, 420 S.E.2d 582 (1992); Stamey v. State, 194 Ga. App. 305,307, 390 S.E.2d 409 (1990); Fortenberry v. State, 193 Ga.App. 329, 387 S.E.2d 607 (1989).

Further, this evidence is particularly admissible "when it has been exhibited to the victim by defendant as a means of orientating, training, enticing, or lulling the child into performing sexual acts." (Emphasis in original.) Fortenberry, supra at 329, 387 S.E.2d 607. The tapes are also admissible if they corroborate the victim's testimony that the defendant possessed commercial, sexually oriented films. Miller, ...