Jowers v. State
| Decision Date | 31 March 1997 |
| Docket Number | No. A97A0743,A97A0743 |
| Citation | 484 S.E.2d 803,225 Ga.App. 809 |
| Parties | , 97 FCDR 1714 JOWERS v. The STATE. |
| Court | Georgia Court of Appeals |
John A. Rumker, Douglas, for appellant.
Richard E. Currie, District Attorney, for appellee.
Appellant Mickey Jowers was indicted for rape, sexual assault against a person in custody, and violation of oath by a public officer. The alleged teenage victim, a female age 16, was taken into police custody and subsequently cited for underage drinking; thereafter, she was transported to the local law enforcement center. A deputy at the center informed the female she could depart the facility if she could get someone to pick her up. When the female was unable to find someone to come and get her, the appellant, a sworn county deputy sheriff, was called to transport her to her home. It is undisputed that the deputy was in an on-duty status that evening; he was duly armed and in uniform. The victim knew she was free to leave the center but not on her own; and she was informed by the deputy at the law enforcement center that he had signed her bond. Appellant arrived and the female entered his police vehicle. Appellant drove her to an isolated area and had sexual intercourse with her. Appellant made a pretrial statement admitting he had engaged in sexual intercourse with her but asserting the act was consensual; the female testified the act occurred against her will and that she was too afraid to protest verbally appellant's sexual conduct. After the sexual act, she fled from the car and immediately made a fresh complaint regarding appellant.
After concluding that the female was not in custody at the time of the incident, the trial court granted appellant's motion for a directed verdict of acquittal as to the charge of sexual assault against a person in custody. The jury returned a verdict of not guilty of rape and guilty of violation of oath by a public officer.
Appellant enumerates the following four errors: The State failed to prove the allegations against appellant beyond a reasonable doubt; the trial court erred by failing to direct a verdict of acquittal at the conclusion of the State's case; the trial court erred by failing to direct a verdict of acquittal at the conclusion of defendant's case; and the trial court erred by failing to grant a new trial on the grounds of the failure to prove the State's case beyond a reasonable doubt and based upon the trial court's failure to grant a directed verdict of acquittal as to the offense of which appellant was convicted. Held:
1. 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; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. The test established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 is the proper test for an appellate court to use in resolving questions of insufficiency of the evidence during the direct appeal of a judgment of conviction. Moreover, the reasonable doubt test established in Jackson v. Virginia, supra, "is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence." Humphrey v. State, 252 Ga. 525, 527(1), 314 S.E.2d 436.
2. Appellant (who at the time of the incident was a deputy sheriff) was charged in the indictment with violating his oath of office by engaging "in sexual contact with [the alleged victim] while she was in his custody in his capacity as a law enforcement officer." Appellant contends the evidence was insufficient in two material respects: First, that the State failed to prove the terms of the oath of office administered to appellant and thus the jury had no basis on which to determine if the officer in fact violated his oath by his conduct with the female; second, that the State failed to prove that the female was in fact in custody at the time of the incident.
OCGA § 16-10-1 provides: "Any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years." (Emphasis supplied.) This statute is plain, unambiguous, and on its face does not lead to any absurd or impracticable consequences; such a statute is simply construed by the court according to its terms and no further inquiry as to its interpretation is conducted. Diefenderfer v. Pierce, 260 Ga. 426, 427, 396 S.E.2d 227; see Chives v. State, 214 Ga.App. 786, 787, 449 S.E.2d 152. As a general rule, statutes must be construed to make all of their parts harmonize with a sensible and intelligent effect; in doing so, it is not to be presumed the legislature intended that any part would be without meaning. Houston v. Lowes, etc., 235 Ga. 201, 203(2), 219 S.E.2d 115. It is well established that a Mitchell v. State, 239 Ga. 3(1), 235 S.E.2d 509.
The charge in the indictment of violation of oath by a public officer pertinently averred that appellant, a deputy sheriff, took and then wilfully and intentionally violated the oath of office prescribed by law for the office of sheriff as follows: "I do swear that I will faithfully execute all writs, warrants, precepts, and processes directed to me as sheriff of this county, or which are directed to all sheriffs of this state, or to any other sheriff specially, which I can lawfully execute, and true returns make, and in all things well and truly, without malice or partiality, perform the duties of the office of sheriff of Coffee County, during my continuance therein, and take only my lawful fees, So help me God." The charge also averred that the said oath was violated by appellant when he "did engage in sexual contact with [the alleged victim] while she was in his custody in his capacity as a law enforcement officer."
The averment of the "terms" of the oath in the charge is identical to the "terms" of the oath of office which the legislature has "prescribed by law" for all sheriffs to take before entering the duties of their office. Compare OCGA § 15-16-4. Pursuant to OCGA § 45-3-7 this same oath of office also is prescribed by law to be taken by a deputy sheriff, such oath being the same as prescribed by law for the sheriff who is a deputy sheriff's principal within the meaning of ...
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...between her being in "custody" versus on "probation.").27 We note that, to the extent the Appellant relies on Jowers v. State , 225 Ga. App. 809, 811 (2), 484 S.E.2d 803 (1997), for his argument that the evidence compelled a finding that V. C. was not in his custody at the time of the assau......
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...156, 158(1)(a)(ii), 419 S.E.2d 32 (1992). Even construing OCGA § 16-10-20 strictly against the State, see generally Jowers v. State, 225 Ga.App. 809(2), 484 S.E.2d 803 (1997), the language therein unambiguously prohibits an individual from making or using any false writing or document, with......
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