Kilgore v. State
| Decision Date | 04 February 1986 |
| Docket Number | No. 71106,71106 |
| Parties | KILGORE v. The STATE. |
| Court | Georgia Court of Appeals |
Tamara Jacobs, Barnesville, John W. Miller, Athens, for appellant.
Johnnie L. Caldwell, Jr., Dist. Atty., Christopher C. Edwards, Paschal A. English, Jr., J. David Fowler, Asst. Dist. Attys., for appellee.
Benjamin Franklin Kilgore appeals from his conviction for child molestation (OCGA § 16-6-4).
1. Kilgore maintains that the trial court erred in denying his motion for new trial on the bases that his conviction was contrary to the evidence presented and without proper evidence to support it. In such a challenge, although the trial court has discretion to grant a new trial, we can only review the evidence to determine if there is any evidence to support the verdict. Drake v. State, 241 Ga. 583, 585, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1265, 59 L.Ed.3d 485 (1979); Thomas v. State, 175 Ga.App. 873(1), 334 S.E.2d 903 (1985).
Our review of the record reveals that the jury was authorized by the evidence to find as follows. On July 27, 1983, the sixty-five-year-old Kilgore and his wife were entrusted with babysitting Amy, a three-year-old little girl and Jason her five-year-old brother. The couple had been caring for the young children in their home for nearly three years. The Kilgores customarily kept the children for 1 to 1 1/2 hours in the afternoons to accommodate the parents' changes in work shift. Contrary to the usual brief time span of the Kilgores' care, on the day in question the mother brought the children to the Kilgore home at approximately 3:30 p.m. for them to stay until shortly after midnight so the father could work the evening shift at the mill.
About 12:15 a.m., the parents came for the children, who had been asleep on a cot in the Kilgores' bedroom, carried them to the car and took them home. The mother noticed that the little girl was irritable and whining but attributed this to her being roused. The child slept in the mother's lap all the way home. Approximately thirty minutes after arriving home, the mother decided to retire and asked the children to wake up and use the bathroom before she put them in their beds. The mother went to get ready for bed when she heard her young daughter crying in the bathroom. The mother testified that the daughter "was sitting on the commode and she was crying, and she said, 'Mama, I can't use the bathroom.' " The mother responded, The mother asked, " 'Amy, what did you say?' And she said, "Mama, 'said, 'he stuck his finger in my booty.' and said--'and it hurts,' she said, and 'I'm burning and hurting,' she said, 'and I can't use the bathroom.' " The mother being very upset by this asked ' As the child was saying this she pointed to her vaginal area, which she generally called her "booty." Both the young girl and her brother frequently called Kilgore "Uncle Frank."
After the child's outburst, the mother questioned her about the circumstances and the child told her it happened in the Kilgore living room while they were watching television, and that Kilgore had picked her up, put her in his lap and "was tickling her." The mother then asked the child's young brother if he knew if anybody had bothered his sister at the Kilgores' but he responded he did not know. The father then called Kilgore and confronted him with Amy's charges and Kilgore responded that the child must be making it up. The parents then took the little girl to a hospital emergency room to be examined by their family physician.
The physician's exam included a complete genital examination which revealed that the surface of the skin was extremely red and very irritated, and that there was marked bruising, the presence of several scratches, and a laceration on the right side of the outer vaginal labia that extended down beside one of the interior vaginal labia. The opening around the urethra was also bruised and there was some swelling which the doctor assumed was the reason for the child being unable to urinate. She "was inflamed, irritated, and scratched all throughout the genital area." The trauma was all external and there was no penetration of the vaginal opening. It was the physician's opinion that this type of injury would be caused by a blunt soft object such as someone's hand used in a vigorous massaging-type motion and was not the sort of trauma that would be caused by a child's accidental injury to that area or likely be the result of self-infliction because of the pain factor involved. This physician, who had treated the child from birth and who had established a comfortable relationship with her, conversed with her about what had happened. Based on his knowledge of the child, it was his opinion that she was not fabricating what she had related.
Prior to being taken to the Kilgores, the little girl was bathed and dressed by her mother, who did not notice any abnormality of the child's body, nor did the little girl complain of any harm or pain, and she had no type of accident during the day.
During the trial, Kilgore admitted that at some point during the time he spent with the little girl, she was sitting on his lap and that she had asked him to tickle her ear. He had noticed the child "pushing herself," messing around," and "[f]eeling around on herself" ostensibly to keep from having to use the bathroom, and that this "rubbing" lasted for two or three minutes. He initially testified that she did not use the bathroom the entire time she was in the home, but later he stated that he and his wife and made her get up and go use the bathroom.
Mrs. Kilgore testified that she was never out of sight of the children, except momentarily until she put them to bed; but she also admitted being in the bedroom and kitchen at various times while the children were in the living room with her husband. When asked if Mrs. Kilgore was out of the living room at any time prior to the children being put in the bedroom, defendant responded that she was never far away but was "all around the house." Mrs. Kilgore's testimony as to the time frame for the children's baths and bedtime contained inconsistencies.
There was no evidence that Mrs. Kilgore had taken any physical liberties with the little girl nor was there any claim or evidence of any injury to the little girl having been inflicted by her five-year-old brother. Mrs. Kilgore admitted that she had her daughter call the little girl's mother to offer the parents money to petition the district attorney not to proceed with prosecution of the defendant.
In assessing the evidence, its weight and the credibility of witnesses are matters for the jury. Harris v. State, 155 Ga.App. 530(1), 271 S.E.2d 668 (1980); OCGA § 24-9-80. A jury in arriving at a conclusion upon disputed issues of fact may believe part of the testimony of a witness or witnesses, and reject another part Frazier v. State, 152 Ga.App. 743(1), 264 S.E.2d 35 (1979). Where a defendant's statements are not consistent with and do not explain other direct and circumstantial evidence, the defendant's explanation may be rejected by the trier of fact. Green v. State, 155 Ga.App. 795, 796, 272 S.E.2d 761 (1980).
Here, the jury was authorized to reject the...
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