Gibbins v. State

• Decision Date: 03 December 1997
• Docket Number: Nos. A97A1359,A97A1360,s. A97A1359
• Citation: 495 S.E.2d 46,229 Ga.App. 896
• Parties: , 97 FCDR 4526 GIBBINS v. The STATE. The STATE v. GIBBINS.
• Court: Georgia Court of Appeals

Page 46

495 S.E.2d 46

229 Ga.App. 896, 97 FCDR 4526

GIBBINS v. The STATE.

The STATE v. GIBBINS.

Nos. A97A1359, A97A1360.

Court of Appeals of Georgia.

Dec. 3, 1997.

Reconsideration Denied Dec. 18, 1997.

Certiorari Denied Oct. 23, 1998.

William G. Quinn III, Decatur, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Assistant District Attorneys, for appellee.

BIRDSONG, Presiding Judge.

In Case No. A97A1359, Larry Wade Gibbins, the stepfather of the victim, appeals his convictions of one count each of rape, child molestation, incest, and aggravated sexual battery and two counts of aggravated child molestation. In Case No. A97A1360, the State appeals the trial judge's decisions that the rape and incest counts and that one count of aggravated child molestation and the child molestation count also merged for sentencing.

Case No. A97A1359

Gibbins contends the trial court erred by denying his motion for a directed verdict on the rape count, by refusing to instruct the jury on the force requirement in a rape prosecution, by refusing to excuse a venirewoman, by allowing the introduction of similar transactions, by refusing to give a requested charge on similar transactions, by refusing to grant a mistrial or give curative instructions because of alleged improper closing argument by the prosecution, and by denying a request for a one week continuance in the pre-sentencing hearing. Held:

1. Gibbins first contends that the trial court erred by denying his motion for a directed verdict of acquittal on the count of forcible rape because the evidence did not prove that he used force or threat of deadly force or serious bodily injury. Gibbins argues that this case is controlled by Drake v. State, 239 Ga. 232, 233-235, 236 S.E.2d 748, which holds that the element of force must be proved when a defendant is charged with forcible rape of a child victim.

Drake held: "It is true that sometimes mere lack of consent imputes force, but this is true only where children are not involved. ... 'In the ordinary case the force to which reference is made is not the force inherent in the act of penetration but is the force used to overcome the resistance of the female. When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.' " Id. at 234-235, 236 S.E.2d 748. In Drake, "[t]he Supreme Court differentiated between the 'against the will' and 'force' elements necessary to prove forcible rape. The Court held that the lack of consent element necessary to prove forcible rape was 'automatically shown' by proof that the victim was under the age of consent, but the element of force 'must be shown by evidence.' " Luke v. State, 222 Ga.App. 203(1), 474 S.E.2d 49.

Some believe, however, that this holding in Drake is no longer effective (see, e.g., Durr v. State, 229 Ga.App. 103, 105, 493 S.E.2d 210 (special concurrence)) because of the Supreme Court's pronouncement in Cooper v. State, 256 Ga. 631(2), 352 S.E.2d 382 that "[s]exual acts directed to [children] are, in law, forcible and against the will." This view is reinforced by our Supreme Court's later pronouncement to that effect in Richardson v. State, 256 Ga. 746, 747, 353 S.E.2d 342.

This position is given added weight by our Supreme Court's recent decision in Brown v. State, 268 Ga. 154, 155, 486 S.E.2d 178, that "[c]hild molestation is, by its very nature, a crime involving a forcible and violent act. See Richardson v. State, [supra]; Cooper v. State, [supra]; Luke v. State, [supra]; Huggins v. State, 192 Ga.App. 820(1), 386 S.E.2d 703 (1989). Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts 'are, in law, forcible and against the will' of a child. Cooper v. State, supra; Luke v. State, supra."

Nevertheless, none of these pronouncements was made in forcible rape cases, and we have found no forcible rape case in which our Supreme Court has made similar pronouncements even though as long ago as 1976 our Supreme Court held in Curtis v. State, 236 Ga. 362, 363, 223 S.E.2d 721, that "[t]he issue to be decided is whether the prosecutrix freely consented, or whether her lack of resistance sprang from reasonable apprehension of great bodily harm, violence, or other dangerous consequences to herself or another."

This problem arises with victims under the age of consent because the victim's age alone would establish both the elements of lack of consent and force, and thus all statutory rape cases (OCGA § 16-6-3) would be forcible rape cases (OCGA § 16-6-1). See Drake, supra at 234, 236 S.E.2d 748. "The principle in Drake is applicable only when the charge is forcible rape of a minor; it is applied to preserve the distinction between forcible rape and statutory rape. Otherwise, the statute making the latter a crime is meaningless." Durr v. State, supra at 104(2), 493 S.E.2d 210. Therefore, we are still bound not to depart from the questionable holding in Drake. (For example, how could sexual intercourse with a two-year-old child ever be accomplished with informed consent and without force, as a matter of law?)

In this case, although the victim never testified directly that Gibbins used force or threats of force to commit rape, we do not find that this is dispositive of the issue. In Drake the Supreme Court affirmed Drake's conviction for forcible rape because evidence of force through intimidation was sufficient to sustain the conviction. "Lack of resistance, induced by fear, is force." (Citation and punctuation omitted.) Drake, supra at 236(2), 236 S.E.2d 748. Thus we find that the victim's state of mind from her prior experience with Gibbins and her subjective apprehension of danger from him were sufficient evidence to satisfy the force requirement. Id. "Force may be proved by direct or circumstantial evidence." Daniel v. State, 194 Ga.App. 495, 496, 391 S.E.2d 128.

Here, the victim testified that Gibbins began exploiting her sexually when she was under five years old, that she did not tell her mother because she was afraid of what Gibbins might do, and that Gibbins told her that if she told anyone, she and her mother would be out on the streets. Another time the victim testified that Gibbins said they would be out on the streets and they would die. Although the victim's testimony on this statement was weakened somewhat on cross-examination, this testimony was evidence from which a jury could conclude that the victim's participation in the sexual relations with Gibbins was produced by fear for herself and her mother. Curtis, supra; Raines v. State, 191 Ga.App. 743, 744, 382 S.E.2d 738.

Accordingly, the trial court did not err by denying Gibbins' motion for a directed verdict of acquittal.

2. Gibbins next contends the trial court erred by failing to instruct the jury that for intimidation to satisfy the force requirement in a prosecution for forcible rape, the intimidation must involve a threat or fear of death or immediate and serious bodily injury. As shown by our discussion in Division 1, this contention is without merit. See Clark v. State, 261 Ga. 311, 312, 404 S.E.2d 787. Moreover, as the thinking process of children generally is not as developed as that of adults, were it necessary we would not hesitate to find that the age of the child, at the time a sexual abusive pattern commences, is a factor to be considered by a jury in determining whether an informed consent was given or whether the threat, force, or emotional trauma of repeated sexual abuse was sufficient to cause lack of resistance.

3. Gibbins further contends the trial court erred by abusing its discretion when it refused to excuse for cause a venirewoman who testified that because of her past experiences she would have difficulty being fair to him and that she would believe the child victim over an adult accused. The record shows, however, that the venirewoman also stated that she could set aside her past and decide the case based on the evidence presented. Further, in response to questioning by the court, the venirewoman stated that she would "try the hardest possible to be impartial, completely impartial, until [she heard] all the evidence," and that she would "try to the best of [her] ability to [give Gibbins a fair trial]." "The fact that a potential juror may have some doubt about his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause." Greenway v. State, 207 Ga.App. 511, 513(3), 428 S.E.2d 415. Because the record does not demonstrate that the juror's opinion was " 'so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence,' we cannot say that the trial court abused its discretion in declining to strike the juror for cause. (Citations and punctuation omitted.) Id." Nichols v. State, 221 Ga.App. 600, 601(2), 473 S.E.2d 491. Further, "to disqualify a prospective juror on the basis that he has formed an opinion about the guilt or innocence of the defendant, when the prospective juror had formed the opinion based on hearsay rather than his having witnessed the crime or having heard testimony under oath, the opinion must be so fixed and definite that it would not be changed by the evidence or the charge of the court during the trial of the case. Waters v. State, 248 Ga. 355, 362(2), 283 S.E.2d 238 (1981).... The prospective juror testified that [she] could put aside any prior impressions and fairly and impartially decide the case on the evidence presented at trial. Thus, [she] was not subject to a successful challenge for cause. See Bright v. State, 265 Ga. 265, 281(8), 455 S.E.2d 37 (1995)." Berry v. State, 267 Ga. 605, 609(6), 481 S.E.2d 203. Accordingly,...