Aggravated sodomy, etc. Clayton Superior Court. Before Judge Collier.
James E. Bischoff, for appellant.
Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Kathryn L. Powers, Assistant District Attorneys, for appellee.
Doyle, P. J., and
Dillard, J., concur.
Following a jury trial, Barry Lamar Conley was convicted of three counts of aggravated sodomy (OCGA § 16-6-2 (a) (2)), two counts of child molestation (OCGA § 16-6-4 (a) (1)), and one count of battery (OCGA § 16-5-23.1 (a)). Conley appeals from the denial of his motion for new trial, contending that (1) the trial court erred in denying his motion for a directed verdict because the State failed to prove force as an element of aggravated sodomy; (2) the trial court failed to exercise its discretion in ruling on his motion for new trial; and (3) he received ineffective assistance from trial counsel. For the reasons that follow, we affirm.
Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. Wallace v. State, 294 Ga.App. 159 (1) (669 S.E.2d 400) (2008). So viewed, the evidence shows that Conley was a longtime friend of the victims' stepfather, Jose Garcia. Garcia, the victims -- Jo. C. and Je. C. -- and the victims' sisters regularly visited Conley at his apartment. The victims referred to Conley as " Uncle Barry."
[329 Ga.App. 97] Beginning in 2006, the victims started staying overnight with Conley. Sometimes Garcia would spend the night as well. Generally, Je. slept in Conley's bed alongside Conley, and Jo. slept on the floor on Conley's side of the bed. During his second overnight stay, Jo. was frequently awakened by " things" touching him. When Jo. looked to see what had touched him, he saw nothing in sight, so he went back to sleep. Jo. described how the touching got worse at subsequent visits, and at one point, he caught Conley rubbing his back. Jo. did not report the incident because he thought Conley was asleep.
In 2008, Conley moved to an apartment near the airport in Clayton County. The victims continued to visit Conley at this apartment and spend the night in Conley's bedroom. On one occasion when Jo. was 12 years old, Conley went into the bathroom
while Jo. was showering. Conley reached into the shower and rubbed Jo.'s back.
At a subsequent visit, Jo. asked if he could sleep in the downstairs living room, causing Conley to get mad. Thereafter, while Jo. was sleeping in Conley's bed, he felt Conley touching him on his butt. Jo. then moved to another room.
At another overnight visit, while Jo. was sleeping on the couch, Conley lay down next to Jo. and put his hands on Jo.'s penis. Conley told Jo. to be quiet as he rubbed Jo.'s penis. At a later visit, Conley sat next to Jo. on the couch and began rubbing Jo.'s penis. Conley then removed Jo.'s pants and underwear and performed oral sex on Jo. while he masturbated. Conley stopped once he ejaculated. Jo. ...