Slack v. State
Decision Date | 05 January 2004 |
Docket Number | No. A04A0081.,A04A0081. |
Citation | 593 S.E.2d 664,265 Ga. App. 306 |
Parties | SLACK v. The STATE. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Avrett, Ponder & Withrock, William B. Barnwell, Dalton, for appellant.
Kermit N. McManus, Dist. Atty., Stephen E. Spencer, Asst. Dist. Atty., for appellee.
A Whitfield County jury found Melissa Rae Slack guilty of child molestation, which charge arose when Slack had sexual intercourse with a 14-year-old boy. She appeals, challenging the sufficiency of the evidence against her; the denial of her motion for new trial; the trial court's evidentiary rulings relating to the admission of certain testimony; and the trial court's refusal to instruct the jury on contributing to the delinquency of a minor as a lesser included offense of child molestation. Upon review, we find the enumerated errors to be meritless and affirm Slack's conviction.
1. Slack first challenges the sufficiency of the evidence against her; she claims that, because the victim willingly engaged in sexual intercourse with her, the evidence was insufficient to show that the act was "immoral" or "indecent," as required by the child molestation statute, OCGA § 16-6-4(a). We do not agree.
Our child molestation statute prohibits any "immoral or indecent" act done to or in the presence of a minor with the intent to "arouse or satisfy the sexual desires of either the child or the person."1 This crime is a joint operation of act and intent2 and furthers "[t]he State's interest in safeguarding the physical and psychological well-being of a minor."3 Thus, the focus is on the adult's action toward the child in relation to the adult's motive for that action—not on the actions and motivations of the child, who does not have the capacity to consent to a sexual act.4 Consequently, consent is not a defense to child molestation.5 And whether a particular act is "immoral or indecent" is a jury question that may be determined in conjunction with the intent that drives the act.6
In the case before us, the 14-year-old victim testified that he had sexual intercourse with Slack. "The testimony of a single witness is generally sufficient to establish a fact."7 Whether such act was "immoral or indecent" so as to constitute child molestation was a jury question decided adversely to Slack by the return of a guilty verdict. Upon appellate review, we find the evidence sufficient for a rational trier of fact to have found Slack guilty as charged beyond a reasonable doubt.8
2. We find no error in the trial court's denial of Slack's motion for new trial premised upon "newly discovered evidence," i.e., testimony from two witnesses that the victim told them he had lied at trial. This evidence would operate solely to impeach the victim, who testified at the motion hearing that he had told the truth at trial. Accordingly, the two witnesses' testimony would not be a proper basis for the grant of an extraordinary motion for new trial, since "a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness."9
3. We likewise find no error in the trial court's refusal to permit evidence that the victim consented to the act of sexual intercourse with Slack and that he later "bragged" about it to others. Evidence as to a child/victim's nonchastity is generally inadmissible.10 "Nor may evidence be admitted to discredit the victim by showing [his] preoccupation with sex."11 While Slack contends that the disputed evidence was relevant to show that the act of sexual intercourse "was not immoral or indecent to the child," the child's view of the sexual act is irrelevant.
Immoral or indecent acts constituting child molestation refer to acts generally viewed as morally indelicate or improper or offensive and acts which offend against the public's sense of propriety.12
Consequently, society as reflected in the jury's verdict determines whether the indicted sexual act is "immoral or indecent," the view of the child—or the defendant—notwithstanding.
4. Slack next claims error in the admission of the victim's testimony that Slack told him she was a "stripper." However, no objection was raised at trial to this evidence. "Objections not raised at trial cannot be raised for the first time on appeal."13
5. Finally, Slack assigns error to the trial court's refusal to charge the jury on the offense of contributing to the delinquency of a minor as a lesser included offense of child molestation. We find no error.
Accordingly, there was no error in refusing to charge the jury on the separate offense of contributing to the delinquency of a minor. Judgment affirmed.
1. OCGA § 16-6-4(a).
2. OCGA § 16-2-1.
3. (Citation and punctuation omitted.) Odett v. State, 273 Ga. 353, 355(2), 541 S.E.2d 29 (2001).
6. McCord v. State, 248 Ga. 765, 766, 285 S.E.2d 724(1982); Cornelius v. State, 213 Ga.App. 766, 768(1), 445 S.E.2d 800 (1994); Davidson v. State, 183 Ga.App. 557, 558(3), 359 S.E.2d 372 (1987).
7. OCGA § 24-4-8.
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