Phelps v. State, 72518

• Decision Date: 16 July 1986
• Docket Number: No. 72518,72518
• Citation: 348 S.E.2d 505,180 Ga.App. 24
• Parties: PHELPS v. The STATE.
• Court: Georgia Court of Appeals

Page 505

348 S.E.2d 505

180 Ga.App. 24

PHELPS v. The STATE.

No. 72518.

Court of Appeals of Georgia.

July 16, 1986.

Rehearing Denied July 29, 1986.

Certiorari Denied Sept. 2, 1986.

John L. Tracy, Albany, for appellant.

Hobart M. Hind, Dist. Atty., Nancy T. Smith, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Lloyd Donald Phelps was convicted of statutory rape and incest upon his twelve-year-old granddaughter. The two crimes arising out of the same incident, the trial court sentenced Phelps to twenty years (five to serve and fifteen on probation) on the incest charge alone. Phelps brings this appeal enumerating three asserted errors. Held:

In one of the three enumerations, Phelps contends there was insufficient evidence of penetration to support the crimes of rape and incest. In the other two enumerations, he argues an insufficiency of evidence to support venue in Dougherty County and to show the crime occurred within four years of indictment. Suffice it to say, we have scrutinized the record with care and find sufficient evidence to support the finding of penetration in the testimony of the 12-year-old victim. Baker v. State, 245 Ga. 657, 664(5), 266 S.E.2d 477.

However, the issues of venue and limitations are not so easily answered. The State alleged Phelps committed the act of sexual intercourse with his granddaughter in a house located in Dougherty County on May 22, 1985. This transcript is replete with evidence of sexual transgressions by Phelps committed upon his two daughters as well as upon most of his female decendants extending over a period of approximately 25 years and occurring in several different counties. The testimony of the victim established that she guessed she lived next door to her grandfather on May 22, 1985. She had lived in that house all her life. On many occasions, she had been alone in "the" house with her grandfather. At unspecified times her grandfather had sexually molested her and on at least several unspecified occasions, he had engaged in sexual intercourse with her. She testified that he had been doing these things for "months." As to which months or years during her twelve years of existence these things occurred, her testimony is silent. On cross-examination, the victim stated she was not sure when "that" (whatever "that" may be) happened nor was she sure when "all" happened. Additionally, the victim made a statement to a police officer but we are not made privy to when such a statement was made. Thus at best, the victim's evidence shows that in a house (location unspecified) sometime during her twelve years of life, she had been sexually molested by her grandfather.

The State however fills the missing gap as to the crime occurring within four years of the trial and as to its location within Dougherty County by the evidence of other witnesses. An older sister (fifteen) established molestation well within the four-year period and as occurring in Dougherty County. The State offered this evidence to show both...