Rowland v. State

• Decision Date: 12 February 2019
• Docket Number: A18A1562
• Citation: 349 Ga.App. 650,825 S.E.2d 231
• Court: Georgia Court of Appeals
• Parties: ROWLAND v. The STATE.

349 Ga.App. 650

825 S.E.2d 231

ROWLAND

v.The STATE.

A18A1562

Court of Appeals of Georgia.

February 12, 2019

Reconsideration Denied March 25, 2019

Miller & Key, J. Scott Key, Kayci N. Dennis, for appellant.

Jonathan L. Adams, District Attorney, Elizabeth K. Bobbitt, Cynthia T. Adams, Assistant District Attorneys, for appellee.

McFadden, Presiding Judge.

Kenneth Rowland was tried before a jury and convicted of aggravated sexual battery, cruelty to children in the first degree, and three counts of incest. He appeals, challenging the sufficiency of the evidence, the denial of a motion for continuance, the denial of a special demurrer, and a jury instruction on cruelty to children. But we find sufficient evidence to support the jury’s verdict, no abuse of discretion in denying a continuance, no error in denying the special demurrer, and no reversible error in the jury instructions as a whole. Rowland further asks for the case to be remanded to the trial court for a hearing on his claim of ineffective assistance of counsel; however, he has failed to identify any specific deficiencies by counsel, so no hearing on remand is needed. Accordingly, we affirm.

1. Sufficiency of the evidence.

Rowland claims that there was insufficient evidence to support his convictions. The claim is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Hall v. State , 335 Ga. App. 895, 783 S.E.2d 400 (2016) (citation and punctuation omitted).

So viewed, the evidence shows that K. R. is the adopted daughter of Rowland. When K. R. was five years old, Rowland started touching her on the buttocks. On one occasion in a car, Rowland had K. R. pull down her pants and he then rubbed her vagina with his fingers. On another occasion, Rowland got into bed with K. R., touched her breasts and buttocks, and tried to force her to rub his penis. Rowland first made K. R. perform oral sex when she was approximately 11 years old, pushing her to the floor of their kitchen and putting his penis in her mouth. After that, whenever Rowland molested K. R., he would try to force her to perform oral sex on him. Rowland also made K. R. watch pornographic movies on his computer.

When K. R. was about 16 years old, Rowland attempted to have sexual intercourse with her, but stopped when K. R. said that it hurt.

Approximately a year later, in January 2014, when K. R. was 17 years old, Rowland had sexual intercourse with her. During the incident, he pushed her onto a bed; pulled down her panties; touched her genital area with his fingers and mouth, inserting a finger into her vagina and licking her vagina; tried to put his penis in her mouth; pulled her on top of him and attempted unsuccessfully to insert his penis into her vagina. Rowland then made K. R. get on her hands and knees on the bed and penetrated her vagina with his penis. Several days later, K. R. told two friends about the sexual abuse by her father, and the mother of one of the friends subsequently reported the alleged abuse to the sheriff’s department.

In challenging the sufficiency of the evidence, Rowland points to purported inconsistencies and conflicts in the evidence. However, any such conflicts or inconsistencies were matters for the jury to resolve. Williams v. State , 347 Ga. App. 171, 173, 818 S.E.2d 88 (2018). As our Supreme Court has explained, "resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court." Pittman v. State , 300 Ga. 894, 897 (1), 799 S.E.2d 215 (2017) (citation and punctuation omitted). Accord Jackson v. State , 347 Ga. App. 199, 201 (1) (a), 818 S.E.2d 268 (2018) ("It is the function of the jury, not the [c]ourt, to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony.") (citation and punctuation omitted). So "[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the appellate court must uphold the jury’s verdict." Williams , supra (citation and punctuation omitted). In this case, there was sufficient competent evidence to authorize the jury to find Rowland guilty of the crimes beyond a reasonable doubt, and therefore we must uphold the convictions.

2. Continuance.

Rowland contends that pursuant to OCGA § 17-16-6, the trial court erred in failing to grant a continuance based on an alleged discovery violation by the state. But under that statute, the trial court has broad discretion to fashion an appropriate remedy, and we find no abuse of that discretion in this case.

The day before trial, counsel for Rowland objected to the trial going forward based on the state’s alleged failure to give him a copy of the recorded forensic interview of K. R. The state’s attorneys responded that they believed they had given defense counsel a copy of the approximate hour-and-a-half recording during discovery. The trial judge, noting that the state believed it had in fact provided the recording and that it had an open-file discovery policy, nevertheless ordered the state to give defense counsel a copy of the recording that day so he could review it before the start of trial the next day. The state subsequently did not introduce the recorded interview into evidence at trial.

When[, as in the instant case,] a criminal defendant elects to engage in reciprocal discovery under Georgia’s Criminal Procedure Discovery Act, the [s]tate and the defendant are required to produce certain types of evidence and information. See OCGA § 17-16-1 et seq. If it comes to the attention of the trial court that either the [s]tate or the defendant has failed to comply with the requirements of the Act, the court has wide latitude in fashioning a remedy for such violation. OCGA § 17-6-6 [providing in pertinent part that if the state fails to comply, the court may order the state to permit the discovery, interview the witness, grant a continuance, or prohibit introduction of the evidence upon a showing of prejudice and bad faith]. As we have noted, this broad discretion allows such remedy as is warranted to ensure a fair trial. ... The remedy a trial court fashions to cure a discovery violation is reviewed on appeal only for abuse of discretion.

State v. Brown , 333 Ga. App. 643, 647-648 (2), 777 S.E.2d 27 (2015) (citations and punctuation omitted). See also Higuera-Hernandez v. State , 289 Ga. 553, 557-558 (3), 714 S.E.2d 236 (2011) ("In enacting [ OCGA § 17-16-6 ], the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the [s]tate for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.") (citations and punctuation omitted).

Here, assuming for the sake of argument that there was a discovery violation, the trial court’s remedy gave Rowland the opportunity to receive and review the recording before trial, Rowland has made no showing that such remedy was inadequate or that he was harmed by it, and the recording in question was not even introduced into evidence at trial. See Bertholf v. State , 224 Ga. App. 831, 832 (1), 482 S.E.2d 469 (1997) (defendant not harmed by state’s failure to provide defense with copy of audiotape of defendant’s confession because audiotape was not introduced into evidence). Under these circumstances, Rowland has failed to show that the trial court abused its broad discretion in denying a continuance. See Phoenix v. State , 304 Ga. 785, 788 (2), 822 S.E.2d 195 (2018) ("Without a clear showing of abuse of this broad discretion, this [c]ourt will not disturb a trial court’s decision to deny a motion for continuance. And to be entitled to a new trial based upon the denial of a motion for a continuance, a defendant has the burden to show that he was harmed by that denial.") (citations and punctuation omitted).

3. Special demurrer .

Rowland argues that the trial court erred in denying his special demurrer seeking more specific date ranges for the crimes charged in Counts 1, 2, 4, 5 and 12 of the indictment. Counts 1 (incest based on sexual intercourse), 2 (incest based on oral sodomy), 4 (aggravated sexual battery for digital penetration of K. R.’s vagina), and 5 (cruelty to children for touching K. R.’s vagina) all alleged that the respective offenses occurred between January 1, 2014 and January 11, 2014. Count 12 (cruelty to children for making K. R. watch pornographic movies) alleged that the offense occurred between January 1, 2012 and January 14, 2014. Because the state showed that it could not allege more specific dates, we find no error.

Generally, an indictment which fails to allege a specific date on which [the] crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the [s]tate can show that the evidence does not permit it to allege a specific date on which the offense occurred, the [s]tate is permitted to allege that the crime occurred between two particular dates. To that end, in meeting its burden of showing that it is unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates, the [s]tate is required to present some evidence and may not rely solely upon argument by counsel or mere speculation.

Watkins v. State , 336 Ga. App. 145, 147-148 (2), 784 S.E.2d 11 (2016) (citations and punctuation omitted).

Here, the state met its burden at the special demurrer hearing by presenting...