Womac v. State
| Decision Date | 11 December 2017 |
| Docket Number | S17A1385 |
| Citation | 808 S.E.2d 709,302 Ga. 681 |
| Parties | WOMAC v. The STATE. |
| Court | Georgia Supreme Court |
Michael R. McCarthy, for appellant.
Herbert M. Poston, Jr., District Attorney, Victoria K. Parker, Assistant District Attorney, for appellee.
Appellant Lawrence Edward Womac appeals his convictions and sentences for aggravated sexual battery, child molestation, cruelty to children in the first degree, and false imprisonment.1 On appeal, Womac argues, among other things, that his life sentence for aggravated sexual battery constitutes cruel and unusual punishment in violation of the Georgia Constitution. For the reasons that follow, and finding no additional error, we affirm.
Viewed in a light most favorable to the verdict, the evidence shows that, on July 19, 2013, Womac invited the minor victim, K.W., and her siblings into his motel room. While watching television, Womac placed his hand down K.W.’s shorts and the tip of his finger penetrated her vagina. K.W. removed Womac’s hand and then ran into the bathroom to get away from him; Womac followed. Once inside, Womac put his left hand on K.W.’s throat, his right hand on her mouth and squeezed. Womac held K.W. against the toilet to keep her from leaving, kissing her on her neck and shoulders, placing his hands on her buttocks and vaginal area. Womac licked K.W.’s vagina, stating that "he was getting it ready." Then he proceeded to place his penis in her vagina, mouth and buttocks.
After the incident, K.W. left and, eventually, reported the assault to her father and another motel resident. K.W. also disclosed another incident with Womac that had occurred a few days prior, wherein Womac grabbed K.W. while she was walking outside, pulled her into a nearby building and made her touch his penis with her hands and mouth.
K.W. was taken to the hospital where a sexual assault examination revealed bruising and abrasions on her arm, leg, and neck, and abrasions and redness around and inside her vagina. The nurse testified that these injuries were consistent with K.W.’s description of what had occurred during the sexual assault.
Meanwhile, Womac left his motel room and later told his daughter about his plans to leave Georgia and travel to Illinois because he needed to "get away." Law enforcement subsequently searched Womac’s room, and though the bedroom had animal feces, urine spots, cockroaches, food, and open containers, the bathroom appeared to have been cleaned with bleach, netting negative results to fluorescence testing for bodily fluids. Officers obtained surveillance footage from the day in question showing K.W. and her siblings entering Womac’s room and K.W. later leaving by herself. The State also presented other acts evidence from two witnesses who described previous sexual assaults on minors committed by Womac.
1. Womac first argues that his life sentence for aggravated sexual battery2 violates the prohibition against cruel and unusual punishment under the Georgia Constitution. According to Womac, his sentence is unconstitutional because K.W.’s lack of consent was presumed by law without the State having to prove that the criminal act of aggravated sexual battery occurred without the victim’s consent, and thus the aggravated sexual battery statute is a strict liability crime for which he received an overly harsh life sentence. Cf. Watson v. State, 297 Ga. 718 (2), 777 S.E.2d 677 (2015) (). We disagree. In this case, unlike the jury in Watson, the jury was not instructed that a minor is legally incapable of consenting to sexual contact as it applied to aggravated sexual battery.3 The jury charge on aggravated sexual battery did not suggest that the element of "without consent" was established based solely upon the victim’s age; thus, contrary to Womac’s assertion, the aggravated sexual battery charge was not a strict liability crime as the jury was required to find that K.W. did not, in fact, consent to the penetration alleged in the indictment. Consequently, we find Womac’s constitutional challenge to be without merit.
2. During its case-in-chief, the State called Womac’s daughter, A.W., as an other acts witness; A.W. testified that she had been sexually abused by her father. During direct examination, the following exchange occurred:
Womac objected to this testimony and moved for a mistrial. The trial court denied the motion and instructed the jury to disregard A.W.’s statement. Womac contends that this was error. We disagree.
(Citation and punctuation omitted.) Graves v. State, 298 Ga. 551, 555, 783 S.E.2d 891 (2016).
The record shows that A.W.’s reference to marijuana was fleeting. Additionally, the trial judge promptly instructed the jury to disregard the testimony, and "[q]ualified jurors are presumed to follow the instructions of the trial court." Sampson v. State, 282 Ga. 82, 84, 646 S.E.2d 60 (2007). Finally, in light of the other evidence in this case, including the evidence of sexual assault against K.W. and that of the two other act witnesses, we cannot say that A.W.’s statement is so highly prejudicial as to be incurable by the trial court’s admonition. Accordingly, we conclude that the trial court did not abuse its discretion by refusing to grant a mistrial.
3. Finally, Womac argues that the trial court erred in failing to merge his convictions for aggravated sexual battery (Count 5), child molestation (Count 9), and cruelty to children in the first degree (Count 11) for sentencing purposes. We find no error.
OCGA § 16-1-7 (a) provides:
When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
"Whether offenses merge is a legal question, which we review de novo." (Citation and punctuation omitted.) Regent v. State, 299 Ga. 172, 174, 787...
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