House v. State

• Decision Date: 25 January 1999
• Docket Number: No. A99A0043.,A99A0043.
• Citation: 236 Ga. App. 405,512 S.E.2d 287
• Parties: HOUSE v. The STATE.
• Court: Georgia Court of Appeals

512 S.E.2d 287

236 Ga. App. 405

HOUSE v. The STATE.

No. A99A0043.

Court of Appeals of Georgia.

January 25, 1999.

Reconsideration Denied February 11, 1999.

Whitehurst, Cohen & Blackburn, Catherine M. Williams, Steven B. Kelley, Thomasville, for appellant.

J. David Miller, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

ELDRIDGE, Judge.

The defendant, Ronald Dewayne House, appeals his December 1997 conviction for the offenses of aggravated child molestation, child molestation, and rape of a seven-year-old girl. Finding no error, we affirm the convictions.

"On appeal[,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]" Grant v. State, 195 Ga.App. 463, 464, 393 S.E.2d 737 (1990); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In evaluating the sufficiency of the evidence, "the relevant question is whether... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]" (Emphasis in original.) Jackson v. Virginia, supra at 319, 99 S.Ct. 2781.

Viewed in such light, the evidence in this case showed that, in 1997, the 33-year-old defendant lived for several weeks in Thomas County with a co-worker and his family. The co-worker's son, who was age 12 at the time of the 1997 trial, notified his mother that he had looked through a "crack" between the bathroom door and the wall of his home and that he had seen the defendant with the seven-year-old victim. At trial, the boy testified that "I seen Dewayne sitting on the bathtub with his clothes over here beside the bathtub and then my sister would have her clothes off.... I seen my sister going up and down." The boy also testified that he heard his mother tell the defendant to leave a few days later after she found the defendant lying on the couch next to the victim "and her [the victim's] legs was like this and then the sheet was throwed over and my mom thought that Dewayne had been messing with her."

The victim's mother confirmed this version of events during her testimony. The mother testified that she talked to the victim about the defendant and that the victim reported that the defendant "touched her on her vagina and her rectum and made her suck him." The mother claimed that she did not do anything about the reported abuse at that time because the defendant was her "friend and I didn't think that he would do me like that." She also testified that she had been married to the victim's father for 13 years and that she did not report the child's abuse by either the defendant or her husband¹ because the father had "already choked me down one time and he told me that if I said anything he would hurt me. And I'm scared of him." However, the mother told a friend, who reported the abuse to the Department of Family & Children Services ("DFCS") on July 15, 1997.

Early the next morning, DFCS arrived at the victim's home and questioned the victim regarding the alleged abuse. During the interview, and subsequently at trial, the victim was "embarrassed," "shy," and reluctant to answer questions, and referred to her genitalia as her "coochie" and to the defendant's external genitalia as his "private" or his "weiner." The victim told DFCS caseworkers that she had had sexual contact with both the defendant and her own father, although she was equivocal regarding her father's abuse during her trial testimony. On a diagram of a girl's body, the victim marked x's where the defendant had placed his "private"; these areas included the mouth, hand, genitalia, and buttocks. According to the DFCS caseworkers, the victim reported that, on at least two occasions, the defendant had taken her hand and placed it on his penis and that he had rubbed her genitalia. At trial, the victim stated that the defendant made her touch his penis. The victim testified that she did not want to do so and did not like it.

The victim also told the caseworker that the defendant "made her suck his private part one time and she said that it was just for a little while. And I asked her was it small or was it big and she said that it was big. And I asked her, could she describe it to me and she say [sic] it was big with [red] sores." (Emphasis supplied.) The victim then drew a picture of the defendant's penis with circles which represented sores. According to the victim, the defendant also took the victim into the bathroom "lots and lots of times," and she told DFCS caseworkers that he "made her lean over the tub ... and he was on his knees and he stuck his private in her private." (Emphasis supplied.)

However, when the victim told her mother about the abuse, her mother did not believe her, even though the mother admitted that she knew that the victim "was going into the bathroom with [the defendant] whenever he came over to their home." Instead, the mother simply told the victim not to go into the bathroom with the defendant again. She also instructed the victim not to tell anyone else about the father's sexual abuse.

Following the DFCS interview, police officers took the victim to the hospital for a physical examination on July 17, 1997. Although the victim resisted a pelvic examination by a male physician, the physician was able to perform a rectal examination. The physician noted that the victim's anus "would barely admit one finger." The next day, a female emergency room physician conducted a pelvic examination of the victim. The physician had extensive experience in emergency medicine and was specially trained in treating victims of sexual assault. The physician testified that the examination was limited to an external exam of the victim's genitalia. The physician testified that she did not conduct an internal examination "because [children's] vagina's [sic] are fairly small and it's very hard to look at the internal organs with [a] speculum." The physician testified that the victim's hymen had been torn away in the past and that, in "prepuberty" girls, is often caused by "some sort [of] sexual exploration or abuse." She then stated that the victim had an area at the entrance to her vagina "that was very indurated and hypertrophy that could really be best described as a callus," which was caused by "[r]epeated rubbing or manipulation of the area." The physician further described the vaginal area as "exactly what you would expect that she had been assaulted over a period of time where there was time for an injury to sort of build up on that little area that I referred to as a callus to form and her hymen was not showing any signs of any fresh injury. That was something that had happened in the past and had had time to heal, also." (Emphasis supplied.) When asked whether the physician had ever seen such injury in a "grown woman," she replied "No." The physician also testified that, at 44 pounds, the seven-year-old victim was a "little on the small size for her age."

Police officers arrested the defendant, who was questioned by the officers on the same night. Following Miranda² warnings, the defendant wrote out a statement denying his involvement in any drug-related activity in the victim's home. The defendant did not mention any sexually-oriented contact with the victim in this statement. Id. During this interview, police officers requested the defendant to expose his penis. The officers later testified that they observed several red spots, which appeared to be similar to scars or a rash, on the defendant's penis. During a subsequent interview, following a waiver of his rights, the defendant admitted that he had had sexual contact with the victim, but alleged that the seven-year-old victim had attempted to seduce him by touching his "crotch" and "balls" about 10 to 15 times, pulling down her pants, telling him she wanted to have sex, and sitting on his lap and moving around until he got an erection. According to the defendant, this usually occurred when no one else was around.

On October 23, 1997, the Thomas County Grand Jury indicted the defendant on two counts of child molestation and one count each of aggravated child molestation and rape. A jury trial was conducted which resulted in guilty verdicts on all four counts. The defendant was sentenced to concurrent terms of 20 years in prison, ten to serve. The trial court denied the defendant's motion for new trial, and the defendant appeals. Held:

1. In his first enumeration of error, the defendant claims that the trial court erred when it denied his motion for new trial as to the rape charge. The defendant asserts that the State failed to prove beyond a reasonable doubt the element of force. We disagree.

Under OCGA § 16-6-1(a), "[a] person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will." In State v. Collins, 270 Ga. 42, 508 S.E.2d 390 (1998) ("Collins"), the Supreme Court of Georgia recently reiterated that the terms "forcibly" and "against her will" are two separate elements of proving rape. See also Drake v. State, 239 Ga. 232, 236 S.E.2d 748 (1977). "The term `against her will' means without consent; the term `forcibly' means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.... [T]he state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim's age.... [However,] the quantum of evidence to prove force against a child is minimal, [since] [p]hysical force is not required. Intimidation may substitute for force." (Citations and punctuation omitted; emphasis supplied.) Collins, supra at 43, 508 S.E.2d 390. Further, "`[f]orce may be proved by direct or circumstantial evidence.'...