Delong v. the State.

• Decision Date: 06 July 2011
• Docket Number: No. A11A0155.,A11A0155.
• Citation: 11 FCDR 2267,714 S.E.2d 98,310 Ga.App. 518
• Parties: DeLONGv.The STATE.
• Court: Georgia Court of Appeals

310 Ga.App. 518

714 S.E.2d 98

11 FCDR 2267

DeLONG

v.The STATE.

No. A11A0155.

Court of Appeals of Georgia.

July 6, 2011.

Robert Lawrence Persse, for appellant.Richard Ashley Mallard, Dist. Atty., Brian Ashley Deal, Asst. Dist. Atty., for appellee.DILLARD, Judge.

Steve Louis DeLong appeals his convictions for one count of child molestation,¹ two counts of violating Georgia's Controlled Substances Act by distributing a Schedule IV drug,² and two counts of influencing witnesses,³ contending that the evidence was insufficient to sustain his convictions and, alternatively, that his convictions must be reversed in light of testimony regarding the invocation of his right to remain silent. For the reasons noted infra, we conclude that the evidence was sufficient as to DeLong's conviction for child molestation, but insufficient as to his convictions for violating Georgia's Controlled Substances Act and influencing witnesses.

Viewed in the light most favorable to the jury's verdict,⁴ the record shows that in September 2005, DeLong and his then-wife, Michelle Hudson, hosted a gathering at their home, which was attended by Hudson's brother, DeLong's sister, and DeLong's young niece, T.C.⁵ At some point in the evening, Hudson went to check on T.C. and the couple's own daughter, the two of whom had previously been put to sleep in the same bed. But upon entering the room, Hudson immediately noticed that T.C. was no longer in bed with her daughter. Instead, DeLong had moved T.C. to the bed he shared with Hudson, claiming to have done so after the child wet the other bed. When Hudson was unable to rouse T.C., DeLong explained that he “might have gave her [sic] an Ambien.”

At trial, Hudson testified that she was immediately suspicious of the situation and that her concern was heightened due to an incident that occurred only a few months earlier when she discovered DeLong in bed with T.C. and their daughter, all three asleep. On that occasion, Hudson looked beneath the bed sheets and noticed that both T.C. and DeLong's underwear was pulled down and what appeared to be fecal matter on the side of T.C.'s buttocks and on the sheets. When Hudson woke DeLong to question him, T.C. slept through the commotion, and DeLong claimed that he could not remember how he had come to be in such a position. Thus, with this earlier incident in mind, Hudson approached T.C.'s mother (DeLong's sister) at the party after having discovered T.C. in DeLong's bed.

Upon learning of the two incidents, T.C.'s mother and father questioned the child—after she finally awoke from her groggy state—as to whether DeLong had ever touched her between her legs, and the child tearfully responded in the affirmative. Thereafter, T.C.'s parents reported DeLong to the sheriff's department, and T.C. gave a forensic interview. DeLong gave a voluntary statement to the sheriff's office, in which he admitted to giving T.C. Ambien but otherwise denied the molestation allegations. And at some point after the allegations arose, T.C.'s mother contacted the mother of J.F., a friend of DeLong's daughter and T.C., who recalled DeLong giving her a medication that made her sleepy and have bad dreams. DeLong thereafter approached J.F.'s mother and apologized for giving J.F. Ambien, but he denied ever molesting the girl. Subsequently, DeLong was arrested and charged with child molestation based on the incident in which Hudson found DeLong and T.C. in bed with their underwear pulled down, and with distributing a controlled substance to T.C. and to J.F.

Following his arrest, DeLong approached T.C.'s parents and asked them to drop the charges against him, telling them that unless they did so he would sue them for $25,000 and demand that they publish a letter of apology in the local newspaper. T.C.'s mother informed the State of DeLong's threatened lawsuit and inquired as to whether the charges against DeLong could be dropped. An investigator told her that because the State had brought the charges, they could not be dropped. At this point, T.C.'s mother began to cry, explaining that she was “under a lot of pressure to drop [the charges],” and informed the investigator that DeLong was waiting outside in her car. The investigator then took a written statement from T.C.'s mother and arrested DeLong on the spot for influencing witnesses.

Thereafter, DeLong was indicted and tried on charges of child molestation, distributing a controlled substance, and influencing witnesses; and he was found guilty by the jury on all counts. DeLong's motions for directed verdict and new trial were then denied, and he was sentenced to twenty years to serve on the child-molestation count; five years to serve consecutively on both counts of distributing a controlled substance; and five years to serve concurrently on both counts of influencing a witness. This appeal follows.

On appeal from DeLong's criminal convictions, we view the evidence in the light most favorable to the jury's verdict, and DeLong no longer enjoys a presumption of innocence.⁶ We neither weigh the evidence nor assess witness credibility, “which are tasks that fall within the exclusive province” of the jury.⁷ With these guiding principles in mind, we will now address each of DeLong's enumerations of error in turn.

1. DeLong first contends that the evidence was insufficient to sustain his conviction for child molestation. We disagree.

Child molestation is committed when a person “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” ⁸ And here, DeLong was charged with committing child molestation with the intent to satisfy his own sexual desires, in that he “did lie in bed with [T.C.] with his underwear pulled down while [T.C.'s] panties were also pulled down.” DeLong argues, however, that the evidence against him was insufficient because (1) T.C. did not testify about the incident in question, (2) Hudson did not witness any touching or sexual activity, and (3) there was no elaboration at trial as to what “pulled down” meant. These contentions are wholly without merit.

Hudson's testimony regarding what she observed on the night in question— i.e., that T.C. and DeLong were asleep together with their underwear pulled down and that she saw what appeared to be fecal matter smeared on T.C.'s buttocks and the bed sheets—was sufficient for the jury to conclude that T.C. and DeLong's otherwise inexplicable mutual exposure was for the purpose of satisfying DeLong's own sexual desires.⁹ Indeed, the mere exposure of sexual organs to a child is sufficient evidence of child molestation, and neither physical contact with the child nor the child's actual sight of the sexual organs is required.¹⁰ Moreover, “[i]ntent is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” ¹¹

Accordingly, the jury was presented with sufficient evidence to find DeLong guilty of child molestation.

2. DeLong next contends that the evidence was insufficient to sustain his convictions for distributing a controlled substance. Despite DeLong's own admission that he distributed Ambien to T.C. and to J.F., we are constrained to agree that the State failed to meet its burden of proof on these two counts.

The Georgia Controlled Substances Act makes it unlawful for “any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance,” ¹² and the State Board of Pharmacy determines which substances are enumerated in the statute's schedules of controlled substances pursuant to the procedures in Georgia's Administrative Procedure Act.¹³ Furthermore, controlled substances are included in the various schedules “by whatever official, common, usual, chemical, or trade name designated.” ¹⁴ For example, Schedule IV lists Zolpidem as a controlled substance.¹⁵ And in the case sub judice, DeLong was charged with two counts of violating the Controlled Substances Act by distributing “[Z]olpidem, a controlled substance commonly known as Ambien[,]” to T.C. and to J.F.

On appeal, DeLong contends that the State failed to prove that he violated the Controlled Substances Act because while Zolpidem is listed as a controlled substance, Ambien is not,¹⁶ and there was no testimony or physical evidence presented by the State at trial linking Ambien to Zolpidem. We are constrained to agree because although the trial court and the prosecutor both informed the jury that they would refer to Zolpidem by its trade name, Ambien,¹⁷ these statements do not cure the defect in the State having failed to present evidence linking Ambien to Zolpidem, and nothing in the record indicates that there was an agreement by the parties to a stipulation of same.¹⁸ Thus, while the State presented evidence that DeLong admitted to distributing Ambien to both T.C. and J.F. and produced testimony that “Ambien” is a Schedule IV controlled substance, our well-established case law explicitly required the State to identify “Ambien” as a trade name for Zolpidem through admissible evidence.¹⁹

Specifically, this Court has previously held that the trade name of a statutorily designated controlled substance is not the proper subject of judicial notice; ²⁰ and because there was absolutely no testimony or physical evidence presented by the State that Ambien is the trade name for Zolpidem, we are constrained to reverse DeLong's convictions on these two counts because the State “failed to carry its burden of proving by competent evidence that the drug [Ambien is] ... regulated by law.” ²¹

While we fully recognize the seeming absurdity of the outcome in this case (in light of DeLong's admission that he gave both children Ambien and the fact that Zolpidem and Ambien are in fact one and the...