Lunsford v. State

• Decision Date: 10 April 2003
• Docket Number: No. A03A0545.,A03A0545.
• Citation: 260 Ga. App. 818,581 S.E.2d 638
• Parties: LUNSFORD v. The STATE.
• Court: Georgia Court of Appeals

581 S.E.2d 638

260 Ga. App. 818

LUNSFORD v. The STATE.

No. A03A0545.

Court of Appeals of Georgia.

April 10, 2003.

Sawyer & Sawyer, Horace K. Sawyer III, Ringgold, for appellant.

Herbert E. Franklin, Jr., Dist. Atty., for appellee. MIKELL, Judge.

Steven Mark Lunsford was indicted on four counts of child molestation, two counts of aggravated assault, one count of possession of a firearm during the commission of a crime, and one count of unlawful possession of a dangerous weapon. A jury convicted him of two counts of child molestation, two counts of sexual battery, as lesser included offenses of child molestation and aggravated assault with intent to rape, one count of aggravated assault, and one count of possession of a firearm during the commission of a crime. Lunsford was acquitted of one count of child molestation and of unlawful possession of a dangerous weapon. The trial court sentenced him to thirty-five years to serve, with ten years to be served in confinement and the balance on probation. Lunsford timely filed a motion for new trial on April 24, 1997, which was denied on October 8, 2002. This appeal followed, in which Lunsford argues that the trial court erred in denying his motion for a directed verdict of acquittal on three of the child molestation counts, both aggravated assault charges, and the charge of possession of a firearm during the commission of a crime. He further assigns error to the admission of pornographic materials and "militia papers" into evidence and to a portion of the court's instruction to the jury. Finding no error, we affirm.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve.

(Citation omitted.) White v. State, 250 Ga.App. 783, 552 S.E.2d 927 (2001). Accord Pennington v. State, 254 Ga.App. 837, 838, 564 S.E.2d 219 (2002), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence shows that on October 7, 1996, Lunsford was living with his wife, Tammy Lunsford, her 15-year-old daughter, S.T., and her 12-year-old son, C.K. Shortly after Tammy left for work that morning, Lunsford encountered S.T. in the kitchen. According to a statement he provided to the authorities after waiving his Miranda rights, Lunsford and his stepdaughter, who was wearing a t-shirt and panties, began "wrestling around together" and "wound up" in a bedroom adjoining the kitchen. Lunsford admitted that at that point, he pulled off S.T.'s panties and started fondling her. According to Lunsford, S.T. told him to stop, and he did. Detective Lisa Mathis of the Catoosa County Sheriff's Department interviewed the victim and testified that S.T. reported feeling a hard object in her vaginal area that she believed was either Lunsford's finger or his penis.¹ There was also evidence that Lunsford sucked on S.T.'s neck, leaving a "hickey," a photograph of which was admitted at trial.

After S.T. fled from Lunsford, he went into his bedroom and cut his wrists with a box cutter. S.T. called her mother at work, and Tammy immediately returned home. She first encountered S.T. and sent her out to the car. Next, Tammy found Lunsford in their bedroom "covered in blood." She testified that Lunsford put a gun to his head and said that he was going to kill himself. Tammy walked into the living room and called 911. While she was talking to the dispatcher, Lunsford shot the telephone that Tammy was using. Having heard the gunshot, S.T. came back into the house. Tammy quickly ushered her daughter back to the car, where she told her to lie on the floor because "if he's crazy enough to do this[,] there's no telling what he's going to do." Tammy and S.T. drove to the police department. In his statement to the police, Lunsford admitted that he shot the telephone on which his wife was speaking.

Officer Eddie Hullender of the Catoosa County Sheriff's Department testified that he responded to the 911 call and was told that an attempted rape and an attempted suicide had taken place. When he arrived at Lunsford's residence, Officer Hullender observed "blood everywhere," but no one was at home.

In his statement, Lunsford reported that after slashing his wrists a second time, he drove to a nearby wooded area, where he lost consciousness. He returned home at approximately 7:30 p.m. and called 911. Officer Terry Knowles responded to the call and found Lunsford sitting inside his home, suffering from lacerations to his arms. Lunsford told the officer that he needed help.

While searching the residence, officers discovered a handwritten note from Lunsford to Tammy, in which he apologized for his behavior and claimed that he was sick. They also found pornographic materials, including a videotape labeled "Dirty Debutantes." Additionally, the officers discovered ammunition, firearms, a hand grenade, "militia papers," and a pipe bomb.

1. First, Lunsford argues that the trial court erred in denying his motion for a directed verdict of acquittal on three of the four child molestation charges. He contends that the state could not charge him with four counts of molestation arising out of the same transaction. We disagree.

According to OCGA § 16-6-4(a), the offense of child molestation is defined as an "immoral or indecent act [done] to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." In this case, the indictment alleged four separate immoral or indecent acts committed by Lunsford with the intent to arouse or satisfy his own sexual desires: Count 1 charged Lunsford with kissing and sucking on S.T.'s neck; Count 2 alleged that he wrestled with S.T. on a bed and removed her panties; Count 3 alleged that he attempted to penetrate S.T.'s sexual organs with his penis; and Count 4 charged that he attempted to penetrate S.T.'s sexual organs with his finger.² While OCGA § 16-1-7(a) prohibits multiple convictions for the same conduct, it also provides that "[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime." Accordingly, the court did not err in permitting the state to prosecute Lunsford on all four counts.

Furthermore, the crimes contained in Counts 1 and 2 did not merge for sentencing purposes because they involved different conduct. Specifically, Count 1 required proof that Lunsford kissed and sucked on S.T.'s neck, while Count 2 required proof that he wrestled with the victim on a bed and removed her panties. In other words, in proving one offense, the state did not "use up" evidence necessary to prove the other. See Brown v. State, 246 Ga.App. 60, 64(1), 539 S.E.2d 545 (2000); Robinson v. State, 210 Ga.App. 175, 176-177(2), 435 S.E.2d 466 (1993); OCGA § 16-1-6(1). Accordingly, the two offenses did not merge.

Finally, to the extent that Lunsford contends that the evidence demanded a directed verdict of acquittal, we reject his argument and affirm the conviction. Viewing the evidence summarized above in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt. See White, supra. 2. Next, Lunsford argues that the trial court should have granted a directed verdict on Count 6, which charged him with the aggravated assault of Tammy "by shooting the phone on which she was talking." He bases his argument on the following testimony given by Tammy: "I was never at any point afraid of him. He wasn't a good shot. When he shot the phone I knew he wasn't shooting me.... I just knew he wouldn't hurt me." Lunsford argues that because Tammy did not have a reasonable apprehension of harm, an aggravated assault did not occur. We disagree.

Simple assault is defined as "an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20(a)(2). An assault becomes aggravated when it is committed with a deadly weapon. OCGA § 16-5-21(a)(2). Thus, "if the victim is in reasonable apprehension of an immediate violent injury from a weapon, an aggravated assault has occurred. Because reasonable apprehension of injury is not the same as simple fear, the testimony that the victim was not afraid of the defendant does not preclude conviction." (Citations omitted.) Carter v. State, 248 Ga.App. 139(1), 546 S.E.2d 5 (2001); Hicks v. State, 211 Ga.App. 370, 373(1), 439 S.E.2d 56 (1993).

Tammy testified that when S.T. came back into the house after hearing the gunshot, "I turned to put her in front of me just in case and out the door she went and I made her get in the car and get in the floorboard." She further testified that she told her daughter "if he's crazy enough to do this there's no telling what he's going to do." In his statement to the police, Lunsford admitted that after he fired the shot into the telephone, Tammy ran out of the house. This evidence demonstrates that Tammy had a reasonable apprehension of injury and that she took measured steps to protect herself and...