Griffis v. State

• Decision Date: 12 July 1996
• Docket Number: No. A96A1406,A96A1406
• Citation: 474 S.E.2d 119,222 Ga.App. 322
• Parties: GRIFFIS v. The STATE.
• Court: Georgia Court of Appeals

Page 119

474 S.E.2d 119

222 Ga.App. 322

GRIFFIS v. The STATE.

No. A96A1406.

Court of Appeals of Georgia.

July 12, 1996.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, Dist. Atty., Robin R. Riggs, Asst. Dist. Atty., for appellee.

RUFFIN, Judge.

William Griffis was convicted of sodomy, aggravated sodomy, aggravated child molestation, cruelty to children, and three counts of child molestation. He appeals his conviction, alleging insufficiency of the evidence and an error in the admission of evidence. For reasons which follow, we affirm.

1. Griffis contends the evidence was insufficient to find him guilty beyond a reasonable doubt of counts 2, 4, 5 and 6 of the indictment since there was no evidence of penetration. We disagree.

"On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]" Farmer v. State, 215 Ga.App. 243, 244, 450 S.E.2d 271 (1994).

The victim, who was five years old at the time of trial, testified that Griffis, who is her father, hurt her in the front and the back. When presented with anatomically correct drawings, the victim clarified that her front was her vagina and her back was her anus. Also using drawings, the victim showed that Griffis touched her with his penis. She further testified that Griffis put a sock over her eyes because he didn't want her to see what he was doing. According to a child abuse investigator, the victim told her that Griffis put his "ding-dong" on her vagina and "her butt."

Although the examining doctor did not find any evidence of sexual abuse during his examination, the nurse testified at trial that if there had been slight tearing or bruising, the body would be able to completely heal itself within ten days of the incident. The nurse also noted that the victim was very cooperative and calm during the examination, which was quite unusual for a child and indicated that the child probably "had this type of thing happen to her ... where she would lay still for an adult."

The foregoing evidence was sufficient for a jury to infer a "contact" between Griffis' sexual organ and the victim's vaginal and anal areas. Proof of penetration is not required for a conviction of sodomy. Smith v. State, 210 Ga.App. 634, 635(2)(d), 437 S.E.2d 333 (1993); Wimpey v. State, 180 Ga.App. 529, 530(2), 349 S.E.2d 773 (1986). All that is required is some contact. Id. We have reviewed the entire transcript and find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

As for Griffis' claim that a fatal variance existed because the indictment alleged Griffis placed his penis in the victim's vagina and anus, while the evidence at trial showed Griffis only placed his penis on the victim's vagina and anus, we do not find that this is a fatal variance even if the evidence at trial was as alleged by Griffis. "Under the test announced in DePalma v. State, 225 Ga. 465(3), 169 S.E.2d 801[,] no fatal variance between the indictment and the proof exists if the defendant is informed of the charges against him and protected from subsequent prosecutions for the same offense. Assuming a variance existed here, it met the DePalma test: [Griffis] was not misled or prejudiced, so any variance was not fatal." (Citations and punctuation omitted.) Farmer, supra at 244, 450 S.E.2d 271; Smith, supra at 636, 437 S.E.2d 333.

2. Griffis further asserts the trial court erred in admitting testimony by a third person concerning statements made by the victim's six-year-old brother to the third person. According to Griffis, these statements are not admissible under the child hearsay rule.

At trial, the children's mother testified that the brother told her he had seen Griffis "put his front private on his sister's front private" and "put his front private in her mouth." In addition, a school counselor testified that the brother told her he had heard Griffis ask the victim "to lick his private parts." However, a Barrow County Department of Family and Children Services investigator testified that the brother told her Griffis did not do anything to the victim.

Griffis...