LaPan v. State
| Decision Date | 17 June 1983 |
| Docket Number | No. 65440,65440 |
| Citation | 167 Ga.App. 250,305 S.E.2d 858 |
| Parties | LaPAN v. The STATE. |
| Court | Georgia Court of Appeals |
Robert J. Duffy, Dwight T. Feemster, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.
Ronald Edward LaPan, appellant here, was charged in six indictments with rape, child molestation, and sodomy. A Chatham County jury found him guilty under four indictments, and he received concurrent twenty-year sentences on three charges of rape and another twenty-year sentence on a charge of aggravated sodomy, this sentence to run consecutively to the others.
LaPan's nine-year-old stepdaughter alleged that the offenses charged were committed on several dates in September 1981 and one date in December of the same year. She testified that she had submitted to the defendant's advances out of fear of being beaten and that she had not reported the incidents to her mother because of her stepfather's threat, uttered immediately after the first incident, that he would kill her if she told anyone. Three weeks after the occurrence of the last alleged incident Mrs. LaPan's suspicions were aroused by a remark of her husband's, and she questioned the child as to whether any sexual contact had occurred. The child hesitated at first but eventually told her mother of the incidents. Mrs. LaPan immediately took her to a hospital emergency room and subsequently to a gynecologist for examination. Both examinations confirmed that the child's vagina had been penetrated (apparently more than once) by some object of such nature as to lend credence to the allegations of rape. Immediately after the first examination the mother moved her belongings and those of her children from the LaPans' mobile home to the home of her parents. The next day she filed for divorce.
At trial the child identified the dates and hours of the alleged incidents chiefly by reference to the opening and closing of school and to her mother's customary working hours. The defendant offered an alibi defense, initially supporting it with portions of business records from his employer's firm purporting to show that he was scheduled to be at work during the critical hours of the day for the whole period of September through December of 1981. When the state produced other portions of the same records showing that defendant, for various reasons, had not actually been at work at any time during the day of either the first or the last of the incidents alleged in the indictments--or on the day following each of those two dates--defendant produced as an alibi witness a co-worker who testified that defendant had gone fishing with him on the afternoon on which the first incident allegedly occurred. He offered no further alibi evidence regarding any of the other dates charged in the indictments. A school official testified that the schools had closed for Christmas vacation on December 22 rather than December 21, the latter being the date on which, according to the child's testimony, the last incident had occurred. There was other testimony regarding (1) the whereabouts of the defendant and other persons involved at the times in question and (2) Mrs. LaPan's possible motives in bringing such charges against her husband.
In bringing this appeal LaPan enumerates as error, in addition to the general grounds (No. 6), the court's failure to grant appellant's motion for a directed verdict of acquittal (No. 2) and to give two properly requested jury instructions on impeachment and on simple sodomy as a lesser included offense (Nos. 3, 4). Appellant's remaining two assignments of error concern the court's instruction that a guilty verdict on each indictment was authorized if the evidence showed that the alleged offenses occurred at any time within a statutory four-year period prior to the accusation (No. 1), and the imposition of sentence on each of the three rape convictions when the indictments for rape were identical save for the averment of date and the date was not made an essential element (No. 5). Held:
The enumerations numbered 2 and 6 are clearly without merit. The determination of the weight of the evidence is solely for the jury. An appellate court can only determine that there is sufficient evidence to enable a reasonable trier of fact to reach the verdict rendered. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980). In the instant case there clearly was sufficient evidence adduced by the state to enable a reasonable jury to find the defendant guilty of the offenses charged beyond a reasonable doubt. Equally clearly, there was insufficient evidence to demand a directed verdict of acquittal. OCGA §§ 9-11-50, 17-9-1 (Code Ann. §§ 81A-150, 27-1802); Barnes v. State, 245 Ga. 609, 610, 266 S.E.2d 212 (1980).
2. The enumerations numbered 3 and 4 are also without merit. The court correctly instructed the jury as to the credibility of witnesses, the means of impeachment, and the effect of such impeachment. See OCGA §§ 24-9-82, -83, -84, -85 (Code Ann. §§ 38-1802, 38-1803, 38-1804, 38-1806). So long as the court's instruction fairly and substantially covers the matter of the written request, it is not error to fail to give the instruction in the exact language of the request. Hand v. Hand, 244 Ga. 41, 257 S.E.2d 507 (1979); Watkins v. Davis, 152 Ga.App. 735, 263 S.E.2d 704 (1979). Moreover, there was no actual impeachment of any of the prosecution's witnesses regarding any material issue, as contemplated by OCGA § 24-9-85 (Code Ann. § 38-1806). Gilbert v. State, 159 Ga.App. 326(2), 283 S.E.2d 361 (1981). There were bare allegations that Mrs. LaPan had formerly worked in massage parlors, but those allegations, even if they had been supported by evidence, would not have been material to the issues in the instant case. Hill v. State, 159 Ga.App. 489, 283 S.E.2d 703 (1981); Gilbert v. State, supra. The apparent one-day discrepancy in the child's testimony regarding the date of the last alleged rape was likewise immaterial, since the prosecution had made serious inroads into appellant's "alibi" for the entire time span, specifically including both the date the child had testified to and the "correct" alternative date, which was the day following. Moreover, the credibility of witnesses, after proper instruction by the court, is a determination solely within the province of the jury. OCGA § 24-9-80 (Code Ann. § 38-1805); Malone v. State, 142 Ga.App. 47, 234 S.E.2d 844 (1977).
As to the requested instruction regarding simple sodomy as a lesser included offense, it is the law in Georgia that the court must give such an instruction if properly requested and if the evidence supports it. State v. Stonaker, 236 Ga. 1, 222...
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Thomas v. State
...either incident alone. Accordingly, we conclude that the trial court erred by not merging Counts 5 and 7. See LaPan v. State , 167 Ga. App. 250, 253 (4), 305 S.E.2d 858 (1983).(b) Unfortunately, there is a line of contrary authority, upon which the trial court relied, but that authority is ......
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Hunt v. State, A15A2064.
...Daniels v. State, 320 Ga.App. 340, 342(2), 739 S.E.2d 773 (2013) (citation and punctuation omitted). See also LaPan v. State, 167 Ga.App. 250, 253 –254(4), 305 S.E.2d 858 (1983) ( "Since all the dates alleged fall within the period of the statute of limitation, only one sentence can be impo......
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Luke v. State
...age is automatically done with force and against the child's will." 192 Ga.App. at 821(1), 386 S.E.2d 703. See also LaPan v. State, 167 Ga.App. 250, 305 S.E.2d 858 (1983), where we relied on OCGA § 16-3-1 and stated that "[t]he element of consent is obviated by the victim's age. [Cits.]" Id......
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Salley v. State
...is made an essential averment of the transaction, and each count of the indictment is distinguishable." Compare LaPan v. State, 167 Ga.App. 250, 253(4), 305 S.E.2d 858 (1983) and 5. Appellant argues that the trial court erred in restricting his cross-examination of State's witness Cole. App......