Flewelling v. State

• Decision Date: 16 October 2009
• Docket Number: No. A09A1100.,A09A1100.
• Citation: 685 S.E.2d 758,300 Ga. App. 505
• Parties: FLEWELLING v. The STATE.
• Court: Georgia Court of Appeals

685 S.E.2d 758

300 Ga. App. 505

FLEWELLING v. The STATE.

No. A09A1100.

Court of Appeals of Georgia.

October 16, 2009.

H. Maddox Kilgore, for appellant.

Patrick H. Head, District Attorney, Maurice Brown, Amelia G. Pray, Assistant District Attorneys, for appellee.

BERNES, Judge.

Following a jury trial, Brad Flewelling appeals his conviction for two counts of aggravated child molestation and one count of statutory rape. He contends that (1) the evidence was insufficient to sustain his aggravated child molestation convictions; (2) the trial court erred in denying his motion to suppress, which alleged evidence was seized pursuant to a defective search warrant; (3) the trial court erred in excluding a motel registration card obtained by police during the investigation; and (4) his trial counsel provided ineffective assistance. We discern no error and affirm.

"On appeal from a criminal conviction, we view the evidence in a light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility." (Punctuation and footnote omitted.) Steverson v. State, 276 Ga.App. 876(1), 625 S.E.2d 476 (2005).

So viewed, the evidence at trial showed that 30-year-old Flewelling met the victim, 15-year-old K.W., while she was visiting her father in Florida during the summer of 2005. During the last week of her visit, K.W. became upset after she learned that a close family friend had died. Flewelling offered to console her. Once they were alone, Flewelling told K.W. that "he had feelings for [her]" and initiated sexual activity with her. Throughout the remaining nights of that week, K.W. snuck out of her father's home, met with Flewelling, and engaged in sexual activity with him. Before leaving Florida, K.W. gave Flewelling a pair of her underwear and a necklace bearing the initial "K."

After K.W. returned to her mother's home, she maintained contact with Flewelling, talking to him daily on the telephone. When K.W.'s mother inquired about the identity of the telephone caller, K.W. told her she was speaking with an 18-year-old Floridian named Brad.

During the weekend of August 13-14, 2005, Flewelling made arrangements to visit K.W. Flewelling drove from Florida to Georgia and checked into a motel. K.W. told her mother that she was spending the night at a friend's house. Instead, Flewelling picked K.W. up from school and took her to his motel room. At some point, Flewelling and K.W. went to a store where Flewelling purchased food, condoms, and a large bottle of an alcoholic beverage. After they returned to the motel room, Flewelling and K.W. engaged in oral sex and sexual intercourse.

In the meantime, K.W.'s mother retrieved a voicemail message that Flewelling had left for K.W. After K.W. returned home the next morning, her mother confronted K.W. about her relationship with Flewelling. During the course of the confrontation, K.W. disclosed her sexual activity with Flewelling and Flewelling's actual age. K.W.'s mother called the police.

During the ensuing investigation, the police officers interviewed K.W. She told them where the latest molestation incident took place and then drove with the officers to the motel. When they arrived at the motel, K.W. pointed out Flewelling's truck, which was still parked outside the motel room. Flewelling was located in the motel room and arrested.

The police obtained search warrants for the motel room and Flewelling's truck. In the motel room, the investigating detective found a partially-consumed alcoholic beverage and several condoms, consistent with K.W.'s report. He also found Flewelling's wallet, which contained a love letter that K.W. had written and a business card bearing K.W.'s home address.

In the truck, the detective discovered K.W.'s underwear and her pendant necklace. The detective also saw where K.W. had written her name in black ink on the headliner of the truck.

Flewelling was indicted, tried, and convicted of two counts of aggravated child molestation and statutory rape. He filed a motion for new trial, which the trial court denied.

1. Flewelling contends that the evidence was insufficient to sustain his aggravated child molestation convictions.¹ We disagree.

"A person commits the offense of child molestation when such 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." OCGA § 16-6-4(a)(1). "Child molestation advances to aggravated child molestation with the addition of either physical injury to the child or sodomy. Sodomy, in turn, is defined as any sexual act involving the sex organs of one person and the mouth or anus of another." (Citation and punctuation omitted.) Metts v. State, 297 Ga.App. 330, 331(1)(a), 677 S.E.2d 377 (2009). See OCGA §§ 16-6-2(a)(1); 16-6-4(c). The respective counts of the indictment charged Flewelling with having committed aggravated child molestation "by performing an act of sodomy . . . involving the penis of [Flewelling] and the mouth of the [victim]" and "by performing an act of sodomy . . . involving the mouth of [Flewelling] and the vagina of the [victim]."

In describing the sexual activity with Flewelling, the victim testified that "there was oral sex between both of us" and oral sex "from me to him and from him to me." In her videotaped interview with the detective, which was played for the jury at trial, the victim further described the oral sex, stating that Flewelling did not wear a condom and that he had ejaculated. Flewelling argues that since the victim's testimony did not describe the specific body parts involved in the acts of sodomy as alleged in the indictment, his convictions cannot stand. His claim is without merit in the context of this case.

Witnesses are not required to describe the acts constituting the commission of crimes in statutory or technical language in order to prove the commission of such acts. See Anderson v. State, 142 Ga.App. 282, 282-283(1), 235 S.E.2d 675 (1977). Rather, the terms used by witnesses to describe criminal acts may be considered in context to provide meaning, and jurors "can be presumed to have some knowledge of slang expressions in common parlance in the vernacular." Id. at 283(1), 235 S.E.2d 675. See also Carolina v. State, 276 Ga.App. 298, 302(1)(b), 623 S.E.2d 151 (2005). The term "oral sex," used by the victim to describe the sexual activity, is defined as "oral stimulation of the genitals." Merriam-Webster's Online Dictionary, http:// www.merriam-webster.com/dictionary/ oralsex. The victim's testimony using the term "oral sex" authorized the jury to infer contact between mouth and genitals, in accordance with the term's common and plain meaning, and established the aggravated child molestation charges as alleged in the indictment. See Metts, 297 Ga.App. at 331-332(1)(a), 677 S.E.2d 377 (victim's testimony that defendant forced her to perform oral sex on him until he ejaculated was sufficient to sustain the aggravated child molestation conviction). See, e.g., Eller v. State, 294 Ga. App. 77, 79(2), 668 S.E.2d 755 (2008) (victim's testimony that she had "oral sex" with defendant after being threatened was sufficient to authorize the aggravated sodomy conviction); Carolina, 276 Ga.App. at 302(1)(b), 623 S.E.2d 151 (the jury was authorized to infer that by use of the term "sex," the victim's description meant oral sodomy when considered in context); Williams v. State, 195 Ga. App. 476, 480(4), 394 S.E.2d 123 (1990) (trial testimony established that the victim had been forced to commit oral sex, "from which it [could] only reasonably be deduced that defendant forced [the victim] to place her mouth on his penis"); Anderson, 142 Ga.App. at 282-283(1), 235 S.E.2d 675 (use of the term "blow job" was sufficient to describe sodomy).

2. Flewelling also contends that the trial court erred in denying his motion to suppress the evidence seized from his motel room pursuant to a search warrant. He argues that the affidavit supporting the search warrant was insufficient in that it (a) failed to disclose the source of the information, (b) omitted information regarding the source's credibility, and (c) failed to disclose the existence of evidence contradicting a material fact provided by the victim. Again, we discern no error.

In determining whether probable cause exists for the issuance of a search warrant, the magistrate's task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citation and punctuation omitted.) Smith v. State, 274 Ga.App. 106, 107(1), 616 S.E.2d 868 (2005). On appeal, this Court's review "is limited to determining if the magistrate had a `substantial basis' for concluding that probable cause existed to issue the search warrant." (Citation and punctuation omitted.) Id. The evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings as to disputed facts and credibility will be upheld unless clearly erroneous and the trial court's application of the law to undisputed facts is subject to de novo review. State v. Palmer, 285 Ga. 75, 78, 673 S.E.2d 237 (2009); State v. Owens, 285 Ga.App. 370, 646 S.E.2d 340 (2007). We afford substantial deference to a magistrate's decision to issue a search warrant based upon a finding of probable cause. Palmer, 285 Ga. at 78, 673 S.E.2d 237.

The affidavit in this case alleged in pertinent part as follows:

Bradford Flewelling, [t]he male 30 year old suspect, . . . drove from his residence in Tampa[,] Florida,...