Gordon v. State, A14A0440.

• Decision Date: 26 June 2014
• Docket Number: No. A14A0440.,A14A0440.
• Citation: 761 S.E.2d 169,327 Ga.App. 774
• Court: Georgia Court of Appeals
• Parties: GORDON v. The STATE.

327 Ga.App. 774

761 S.E.2d 169

GORDON

v.The STATE.

No. A14A0440.

Court of Appeals of Georgia.

June 26, 2014.

Peter D. Johnson, for Appellant.

Madonna Marie Little, Rebecca Ashley Wright, for Appellee.

RAY, Judge.

A jury convicted Andre Gordon of child molestation (OCGA § 16–6–4(a)(1)), aggravated sexual battery (OCGA § 16–6–22.2), rape (OCGA § 16–6–1(a)(1), and incest (OCGA § 16–6–22(a)(6)). Gordon was sentenced as a recidivist under OCGA § 17–10–7 to 20 years each for child molestation, aggravated sexual battery, and incest, to run consecutively to each other and concurrently with his sentence of life imprisonment without the possibility of parole for rape. He appeals the denial of his motion for new trial, arguing that (1) the evidence was insufficient to sustain his convictions for aggravated sexual battery, rape, and incest; (2) the statute of limitation had run on the aggravated sexual battery and incest counts; (3) a fatal variance existed between the dates charged in the indictment and the evidence adduced at trial; (4) the trial court erred in instructing the jury on the elements of rape; (5) and that he received ineffective assistance of counsel. Because Gordon's relationship to the victim did not fall within the ambit of the incest statute, we reverse his conviction for incest and remand the case for resentencing. Gordon's other claims, however, are without merit, and we affirm his remaining convictions.

Viewed in the light most favorable to the jury's verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that when T.S. was 13 years old, Andre Gordon came to live with her family. Gordon began touching and interacting inappropriately with T.S., as will be detailed below. T.S. made outcry to her aunt and later to her mother, who called the police. The same day that the police were called, Gordon told T.S.'s stepfather that he had “messed with” his family. T.S. was examined by a nurse at a clinic for sexually transmitted diseases and at a hospital. The examinations showed that her hymen was not intact, but also showed no signs of bruising, tearing, or trauma consistent with sexual assault. T.S. indicated she had no sexual history prior to the incident with Gordon.

1. Gordon contends that the evidence was insufficient to sustain the verdict as to the aggravated sexual battery, rape, and incest counts.¹

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.

(Footnote omitted.) Colton v. State, 297 Ga.App. 795, 796(1), 678 S.E.2d 521 (2009).

(a) Aggravated sexual battery. Gordon argues that the victim's trial testimony that he “would finger her” was too vague to establish that penetration, an essential element of aggravated sexual battery, occurred.

A person commits aggravated sexual battery when he “intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16–6–22.2(b). A “foreign object” is anything other than a person's sexual organ and may include body parts such as fingers, and even slight penetration satisfies the statute's requirements. Colton, supra.

The indictment charged that Gordon “did intentionally penetrate the vagina of [T.S.] with a finger of the accused” without T.S.'s consent. At trial, T.S. testified that Gordon “would finger me in my vagina.” (Emphasis supplied.) A police investigator who interviewed T.S. testified that she told him Gordon “penetrated her vaginal area with his fingers” and “took his right hand and placed his index and middle finger into her vaginal area and started to rub inside her vagina.” The evidence was sufficient.

(b) Rape. To prove that Gordon raped T.S., the State was required to show that he had carnal knowledge of her forcibly and against her will. OCGA § 16–6–1(a)(1). Gordon does not dispute that the State proved force and lack of consent. He argues only that the victim's description of the “carnal knowledge” element of rape was ambiguous because it could have established penetration required for the crime of sodomy, rather than vaginal penetration as required for the carnal knowledge element of rape. We disagree.

“Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16–6–1(a)(1). At trial, T.S. testified that Gordon “tried to penetrate” her while “I was ... laying [sic] on my side, and from behind he tried to put his penis in me. But, that's when he pushed in, and I kind of ‘crinched’ (phonetic) and it hurt and that's why I looked at him, and that's when he pulled out[.]” T.S. testified that when Gordon tried to penetrate her, she “got real scared[.]” When he told her not to tell her grandmother, she curled up in a ball. She finally decided to tell someone, fearing that if she did not act soon, “it could get worse.” The investigator who interviewed T.S. testified that she told him, as to the same incident, that Gordon “pulled her shorts and panties aside and inserted his penis into her vagina.” (Emphasis supplied.)

It is well settled that “it is the function of the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence.” (Citation omitted.) Roberts v. State, 313 Ga.App. 849, 850(1), 723 S.E.2d 73 (2012). In light of the testimony outlined above, a rational jury could find that the evidence was sufficient to show that Gordon penetrated T.S.'s vagina with his penis.

*Ga.App.777(c) Incest. Gordon argues that the evidence is insufficient because Georgia's incest statute does not prohibit sexual intercourse between a “step-uncle” and niece, and thus, that the State failed to prove the existence of a relationship proscribed by OCGA § 16–6–22. As an initial matter, counsel's use of the term “step-uncle” is inapt and confusing, as T.S.'s mother and Gordon are half-siblings who have the same father. Thus, Gordon is T.S.'s uncle, related by half-blood. He is not her “ step-uncle.”

In pertinent part, OCGA § 16–6–22(a)(6) provides that “[a] person commits the offense of incest when such person engages in sexual intercourse ... with a person whom he or she knows he or she is related to either by blood or by marriage as follows: ... [u]ncle and niece[.]” The statute does not refer to half-blood uncles. However, it does specifically refer to other half-blood relationships in prohibiting incest between a brother and sister “of the half blood[.]” OCGA § 16–6–22(a)(3).

Well-settled principles of statutory construction provide that “expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another) and expressum facit cessare tacitum (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded).” (Citations omitted.) Jackson v. State, 299 Ga.App. 356, 358(2), n. 4, 683 S.E.2d 60 (2009). Because Georgia's incest statute specifically refers to a brother and sister of the half blood, it necessarily excludes other, unmentioned half-blood relationships. See Smith v. State, 311 Ga.App. 757, 758–759(1), 717 S.E.2d 280 (2011) (count of indictment charging defendant with incest for having sexual relations with adoptive sister, with whom he had no blood relationship, was insufficient as a matter of law because incest statute expressly applies only to siblings of the whole blood or the half blood); Glisson v. State, 188 Ga.App. 152, 152–153, 372 S.E.2d 462 (1988) (evidence insufficient to prove incest where allegation involved a step relationship not specifically mentioned in OCGA § 16–6–22.

“The fact that the sexual acts here involved are fully as loathsome and disgusting as the acts proscribed by the Code does not justify us in reading into the statutory prohibition something which the General Assembly either intentionally or inadvertently omitted.” (Citation and punctuation omitted.) Glisson, supra at 153(1), 372 S.E.2d 462. Because the relationship at issue here is not one expressly enumerated by the statute, we cannot find that the sexual relationship between Gordon and T.S. is incestuous. Id. Accordingly, Gordon's incest conviction must be reversed.

2. Gordon argues that he was tried and convicted under an indictment in which the statute of limitation had run on the aggravated sexual battery and incest counts. Given our reversal of Gordon's conviction for incest in Division (1)(c), we need not reach his contention related to incest in this enumeration. As to the aggravated battery count, however, Gordon neither demurred nor moved to quash or dismiss. He “did not object to the [allegedly] time-barred count[ ] at trial, and is therefore procedurally barred from raising the issue on appeal.” (Footnote omitted.) Zellars v. State, 278 Ga. 481, 483(3), 604 S.E.2d 147 (2004).

3. Gordon next argues that there is a fatal variance between the dates alleged in the indictment and the evidence adduced at trial as to the offenses of rape and incest. Again, we need not reach this contention as to the incest count because of our determination in Division (1)(c). As to the rape count, Gordon argues that because the dates in the indictment were not prefaced by the words “on or about” they were material averments and the State failed to prove that the crime occurred on those precise dates. The indictment, however, does not allege that the dates were material averments.²

Where, as here, the State alleges a certain range of dates in an indictment and does not specifically allege that those...