State v. McDowell

• Decision Date: 17 December 2009
• Docket Number: No. A09A2388.,A09A2388.
• Parties: The STATE v. McDOWELL.
• Court: Georgia Court of Appeals

688 S.E.2d 417

301 Ga. App. 751

The STATE v. McDOWELL.

No. A09A2388.

Court of Appeals of Georgia.

December 17, 2009.

J. David Miller, Dist. Atty., Laura A. Wood, Asst. Dist. Atty., for Appellant.

Jody D. Peterman, Terry & Peterman, for Appellee.

PHIPPS, Judge.

Charles McDowell filed a general demurrer against an indictment charging him with three counts of child molestation. After a hearing, the trial court granted the demurrer. Because this ruling was error,¹ we reverse.

The relevant Code section, OCGA § 16-6-4, states in pertinent part: "A person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act 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."² Tracking the statutory language, each of the three counts against McDowell alleged, in pertinent part, that McDowell "did commit an immoral act in the presence of a child, to wit: [A.M.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of said accused by fondling his own penis in the presence of [A.S., A.L., and I.R.]."³ "Since the indictment set out all the essential elements of the crime and [McDowell] could not admit to those allegations without being guilty of a crime, the indictment was sufficient against a general demurrer."⁴

McDowell failed to show otherwise. At the hearing, McDowell argued that the indictment implied that A.S., A.L., and I.R. were the alleged child molestation victims, yet they were all women.⁵ He also asserted that the child identified in the indictment, A.M., was too young to have had any understanding of his alleged acts. McDowell pointed out that the front page of the indictment listed the three women as witnesses and further claimed as significant that this list included neither the child nor the child's mother. In addition, McDowell asserted that the summoned police officer did not charge him at the scene with the crime of child molestation.

Nothing in McDowell's attacks, nor anything in Stroeining v. State,⁶ cited by McDowell, authorized the trial court to grant the general demurrer.⁷

Judgment reversed.

SMITH, P.J., and BERNES, J., concur.

1. See Tanks v. State, 292 Ga.App. 177, 663 S.E.2d 812 (2008) (where legal error is asserted, review is de novo); Summers v. State, 263 Ga.App. 338, 587 S.E.2d 768 (2003) (where the evidence is uncontroverted and witness credibility is not an issue, review of the trial court's application of the law to the undisputed facts is de novo).

2. OCGA § 16-6-4(a)(1).

3. More specifically, each of the three counts alleged an incident committed in the presence of the child, A.M.; Count 1 alleged further that such an incident occurred in the presence of A.S.; Count 2 alleged further that such an incident had occurred in the presence of A.L.; and Count 3 alleged further that such an incident had occurred in the presence of I.R.

4. Roberts v. State, 282 Ga. 548, 549(4), 651 S.E.2d 689 (2007) (citation omitted); see State v. Eubanks, 239 Ga. 483, 485, 238 S.E.2d 38 (1977) (instructing that the true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question whether the defendant can admit the charge as made and still be innocent; if he can, the indictment is fatally defective, and the sufficiency of the indictment can be questioned by...