McCollum v. State
| Decision Date | 07 November 1985 |
| Docket Number | No. 70896,70896 |
| Citation | 338 S.E.2d 460,177 Ga.App. 40 |
| Parties | McCOLLUM v. The STATE. |
| Court | Georgia Court of Appeals |
Albert F. Burkhalter, Jr., Rome, for appellant.
Roger G. Queen, Dist. Atty., for appellee.
In 1972 the appellant, Raleigh O. McCollum, married Helen McCollum, who had three children by a previous marriage. On May 6, 1984, when threatened with a disciplinary whipping by the appellant, one of the appellant's stepdaughters, then seventeen years old, told her mother that the appellant had performed various sexual acts with her from the time she was eight years old until she was fourteen. The appellant subsequently was indicted for and convicted of both child molestation and aggravated sodomy, from which this appeal followed. Held:
1. The appellant contends that the crime of aggravated sodomy merged with the crime of child molestation as a matter of fact and that the trial court thus erred in sentencing him for aggravated sodomy. If both of the appellant's convictions were in fact based upon the same, single act, only one conviction (that for aggravated sodomy) could stand. LaPalme v. State, 169 Ga.App. 540, 313 S.E.2d 729 (1984); OCGA § 16-1-7, generally. However, review of the record shows that over a span of six years the appellant relentlessly subjected his minor stepdaughter to countless episodes of molestation by performing acts of sodomy. LaPalme is inapplicable, since there were multiple, separate acts as bases for each conviction.
We note that although the indictment specifically charged the appellant with having committed child molestation by fondling his stepdaughter's genital area with his hands, the state failed to adduce any testimony about such an episode of mere fondling. Generally, where an indictment sets out an offense as having been done in a particular way, the proof must show it without variance. Marchman v State, 129 Ga.App. 22, 198 S.E.2d 425 (1973). However, the appellant neither raised the specific issue of such a variance nor attacked the sufficiency of the evidence generally, and this court thus does not address that matter.
2. Careful review of the appellant's remaining enumerations of error discloses no additional ground for reversal.
Judgment affirmed.
I agree with the majority but conclude also that the testimony of the prosecutrix supports a reasonable inference that at least some of the acts of sodomy in which appellant used his mouth on her genital area also involved fondling it with his hands.
The majority's statement of facts needs some amplification and clarification. Appellant was indicted on two counts, the first alleging child molestation and the second alleging aggravated sodomy. Both counts of the indictment allege that the crimes occurred between January 1, 1975 and December 31, 1982 and that both were perpetrated upon the same victim. The victim's testimony at trial discloses that the "various sexual acts" asserted by the majority as having been commited by appellant upon her person were exclusively acts of sodomy. She testified, "He done [sic] the same things over and over." There is absolutely no evidence whatsoever that appellant at any time ever "fondled the genital area of [the victim] with his hands" as alleged in Count I (child molestation) of the indictment. "Since the convictions for aggravated sodomy and child molestation in this case were based upon the same conduct, it follows that the conviction for child molestation merged into the crime of aggravated sodomy and the conviction and sentence for the former crime must be reversed." LaPalme v. State, 169 Ga.App. 540(1), 313 S.E.2d 729 (1984); see OCGA § 16-1-7(a).
The majority attempts to distinguish LaPalme by arguing that the convictions therein were based upon a single act, whereas the convictions in the case at bar are based upon "countless episodes of molestation by performing acts of sodomy." Such a distinction is specious, for appellant was not charged with molesting the victim by performing acts of sodomy upon her. Winter v. State, 171 Ga.App. 511, 512, 320 S.E.2d 233 (1984). It follows that acts of sodomy in certain cases may also...
To continue reading
Request your trial
-
Horne v. State, A89A0619
...crime in establishing another crime, the former is included as a matter of fact under OCGA § 16-1-6). The case of McCollum v. State, 177 Ga.App. 40, 338 S.E.2d 460 (1985), should be obvious to all to be clearly distinguishable from the operative facts conclusively established by this record......
- Bowers v. State, 70368
-
Taylor v. State, 75266
...884(1), (7), 360 S.E.2d 605 (1987); Harmon v. Southern R. Co., 123 Ga.App. 309, 310(2), 180 S.E.2d 604 (1971); McCollum v. State, 177 Ga.App. 40(1), 338 S.E.2d 460 (1985); Martin v. State, 72 Ga.App. 810, 35 S.E.2d 315 (1945); Rules 15(c)(2) and 27(e). It thus has been subjected to no adver......
-
Hill v. State
...aggravated sodomy and child molestation. See Copeland v. State, 160 Ga.App. 786, 789(11), 287 S.E.2d 120 (1981); McCollum v. State, 177 Ga.App. 40, 338 S.E.2d 460 (1985). 5. Finally, defendant claims the trial court erred in failing to give, upon request, the much maligned and questioned "t......