Whorton v. State, A12A0838.
| Decision Date | 29 November 2012 |
| Docket Number | No. A12A0838.,A12A0838. |
| Citation | 735 S.E.2d 7,318 Ga.App. 885 |
| Parties | WHORTON v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Green Berry Moore III, for Whorton.
Fredric Daniel Bright, Gray, for the State.
After a jury trial, Jackie Whorton was convicted of one count of enticing a child for indecent purposes,1 seven counts of child molestation,2 one count of incest,3 two counts of aggravated child molestation,4 and three counts of cruelty to children in the first-degree.5 Whorton appeals the denial of his motion for new trial, arguing that the trial court erred in failing to provide a limiting instruction regarding similar transaction evidence and by not granting a request for a continuance, and that he received ineffective assistance of counsel. Whorton also challenges the sufficiency of the evidence. Finding no reversible error, we affirm.
As a threshold matter, we note that on appeal from a criminal conviction,
we view the evidence in the light most favorable to the jury's verdict, and [Whorton] no longer enjoys a presumption of innocence. And we neither weigh the evidence nor assess witness credibility, which are tasks that fall within the exclusive province of the jury.6
Viewed in the proper light, the evidence adduced at trial shows the following: Whorton came to live with his daughter, his granddaughter G.G., and his grandsons at their home in Canada so that he could care for the children while their mother worked during the day. While Whorton was living in Canada, he took G.G. on several trips to her mother's other home in Jones County, Georgia. During one of these trips, Whorton's truck experienced transmission failure, requiring Whorton and G.G. to stay at a hotel for a week while the truck was repaired. At the hotel, Whorton forced G.G., over her objections, to watch a pornography video. On at least two other trips to Jones County, G.G. and Whorton slept in the same bed. It was during one of the nights in Jones County that Whorton undressed G.G., who was 12 years old at the time, began to caress her, made her perform oral sex on him, and then engaged in sexual intercourse with her. G.G. testified that On another of these trips, Whorton again undressed G.G. and attempted to engage in intercourse with her but was unsuccessful in maintaining an erection.
The summer after G.G. turned 13, she moved to the Jones County house with her family. Whorton again lived with the family and homeschooled G.G. and her brothers. G.G. testified that Whorton attempted sexual intercourse with her at least once while they lived in that house, but that she did not remember many of the details surrounding the incident because she had become “a pro at fading out and not feeling the pain.” G.G. also testified that Whorton would frequently fondle her inappropriately, “pull his pants down and flash [her],” and would force her to watch pornography on his computer. Whorton would also “pinch [G.G.'s breasts] or ... squeeze really hard” as punishment for bad behavior.
At some point after that, G.G. told Whorton that she believed she was pregnant. G.G. testified that this information made Whorton mad and that he “hit me and I fell to the floor, and then he just started kicking me in the stomach.” After this incident, G.G. testified that Whorton stopped trying to have sex with her because “[he] couldn't get hard at all.” However, Whorton continued to visit G.G. in her room at night on a weekly basis and start “messing with me, and touching me, and trying to undress me.”
G.G.'s brothers shared a bedroom located next to her room. They testified that at least once a week, they would hear Whorton go into G.G.'s room at night, and G.G. would say
G.G. testified that she never told anyone about the abuse because Whorton told her that she “would be the one to get in trouble ... if [she] told,” and that she would be “kicked out” and her mom would not believe her. At some point, G.G. felt that she “just had to get out of the situation [because she] couldn't stand it no more.” So, she packed her bags and was ready to run away when she decided to confide in her mom first. When G.G. told her mother about the abuse, G.G.'s mother removed the children from the house. G.G. was then interviewed and submitted to a forensic examination at the Crescent House.
At trial, Dr. Debbie West, the doctor who conducted the forensic examination, testified that G.G. had two crescent shaped scars on her hymen that led the doctor to conclude that there had “been penetration through her hymen ... consistent with sexual abuse.”
1. Whorton contends that the evidence presented was insufficient to sustain his convictions.
(a) Whorton specifically argues that the evidence was insufficient to sustain his conviction on Count 1 of the indictment, which charged him with enticing a child for indecent purposes by unlawfully enticing and taking G.G. into a bedroom for the purpose of committing child molestation. Whorton contends that this particular conviction cannot stand because G.G. and Whorton lived in the same home, and accordingly, there was “no evidence that [G.G.] was enticed into any bedroom at any time.”
Under 16–6–5(a) “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” The statute “has been held to include the element of ‘asportation,’ and our Supreme Court has held that this element is satisfied whether the ‘taking’ involves physical force, enticement, or persuasion.” 7 Further, “[a]ny asportation, however slight, is sufficient to show the taking element of enticing a child for indecent purposes.” 8
The case relied upon by Whorton, Henderson v. State,9 is inapposite. In Henderson, this Court found that there was no evidence of taking or asportation in a child molestation case where the interviews of the child witnesses indicated that the defendant would join the victims in whatever room they were already in when the molestation occurred rather than entice them to come into another room.10 In the present case, on the other hand, the transcript of G.G.'s interview at the Crescent House showed that Whorton had a computer in his bedroom that sat next to his bed, and when G.G. was in another part of the house, Whorton would call G.G. into his bedroom and show her “different porno sites, pictures of naked men, naked women.” We find that there was sufficient evidence to sustain Whorton's conviction on Count 1. 11
(b) Whorton next argues that the evidence was generally insufficient to sustain the remainder of his convictions, arguing that because there were “many inconsistencies and contradictions in [G.G.'s] testimony [that] destroy her credibility, and [because] there was no real corroboration in the case, the conviction should be set aside.” Specifically, Whorton points to G.G.'s testimony that she could not remember exactly what acts of abuse took place on certain trips with her grandfather, that although G.G. testified that her mother was in the home as she yelled for help during one of the first incidents of abuse, she did not come into the living room to check on her daughter, and that when asked by a counselor at the Crescent House to draw a picture of a penis, she drew a picture of a circumcised penis even though she testified at trial that her grandfather's penis was uncircumcised. According to Whorton, these inconsistencies, combined with G.G.'s “memory issues” concerning certain facts, require a finding that no reasonable jury could have found the victim's testimony to be credible. Thus, Whorton argues, because G.G. was not credible and because the State's evidence did not conclusively prove that G.G.'s hymen had been torn via sexual intercourse, his convictions must be reversed due to insufficient evidence.
“When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 12 It is well-settled that
it is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of the witnesses. Ultimately, as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.13
Moreover, “the victim's testimony alone is generally sufficient to establish the elements of child molestation.” 14
In this case, the acts of molestation took place when Whorton was alone with G.G., so there were no eyewitnesses who could provide direct testimony about what occurred. Even if uncorroborated, however, the victim's testimony was sufficient to support Whorton's convictions on each count, as indicted. Further, as noted above, the expert testimony of the physician who conducted the forensic exam showed that G.G. had scarring on her hymen leading the doctor to conclude that there had been penetration through her hymen consistent with sexual abuse.
Consequently, because the victim's testimony was legally sufficient to support Whorton's convictions, and because the jury, alone, was authorized to judge the credibility of G.G.'s testimony, Whorton's challenge to the sufficiency of the evidence must fail.
2. Whorton next contends that the trial court erred in denying his motion for a continuance. It is well-settled that this court will not reverse a trial court's ruling on a motion for a continuance absent a manifest abuse of...
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