Reconsideration denied November 20, 2014 -- Cert. applied for.
Rape, etc. Dougherty Superior Court. Before Judge Marshall.
Kevin C. Armstrong, for appellant.
Gregory W. Edwards, for appellee.
MILLER, Judge. Doyle, P. J., and Dillard, J., concur.
A jury convicted Melvin James Davis of rape (OCGA § 16-6-1 (a) (1)), aggravated child molestation (OCGA § 16-6-4 (c)), and enticing a child for indecent purposes (OCGA § 16-6-5 (a)). Davis appeals from the denial of his motion for new trial, contending that (1) the State improperly destroyed evidence; (2) the trial court erroneously instructed the jury on the burden of proof; and (3) his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdict, the evidence shows that on February 18, 2005, Davis called his ex-girlfriend, L. C., around 3:00 p.m. and told her that he had some money to give her. L. C. sent her then twelve-year-old sister, K. C., and her six-year-old [329 Ga.App. 798] son to retrieve the money from Davis at his house, which was approximately two blocks from K. C. and L. C.'s home.
K. C. and her nephew walked to Davis's house. When they arrived, Davis told K. C.'s nephew to go play with Davis's own young son, and the two boys went into Davis's son's bedroom. Meanwhile, Davis told K. C. to come into his bedroom to get the money. Davis then locked the bedroom door and used both hands to pull down K. C.'s pants. Davis pulled down K. C.'s underwear and told her to get on the bed. K. C. was scared. Davis then took off his clothes and put his penis into K. C.'s vagina.
During intercourse, Davis received a call from L. C., who was worried because the children had been gone for 30 minutes. Davis got up from the bed to answer the phone and told L. C. that the children would be home soon. Davis then resumed raping K. C. until he ejaculated inside of her. The rape lasted for a total of ten to fifteen minutes.
Afterward, Davis gave K. C. some money and told her that he would hurt her if she told anyone what had happened. K. C. and her nephew walked back home. When she arrived home, K. C. was walking with her legs spread apart, as if she was hurt. L. C. asked K. C. what was wrong. K. C. was afraid to tell her sister what happened but later revealed to her mother that Davis had raped her. L. C. then called the police and reported the rape.
K. C.'s mother took her to the hospital, where a sexual assault nurse conducted an examination that evening. The nurse found a fresh abrasion on K. C.'s vagina, consistent with nonconsensual sexual intercourse. K. C. was also bleeding quite a bit around her cervix. The nurse swabbed K. C.'s vaginal area. Subsequent DNA testing of the swabs indicated the presence of male DNA, although the amount was insufficient to create a profile for testing.
Shortly after the rape, K. C. missed her period. On April 27, 2005, an obstetrician examined K. C. and determined, based on ultrasound measurements, that K. C. was approximately nine weeks pregnant. In early May, K. C. had an abortion at a medical clinic. After K. C.'s abortion in May 2005, biological material was collected, placed in formaldehyde, per the clinic's policy, and turned over to an investigator from the State.
The biological material collected from K. C.'s abortion was received by the GBI in May 2005, but was not analyzed until October 2005. A GBI forensic biologist was unable to obtain any usable DNA from the biological material, likely because the sample had been stored in formaldehyde, which can inhibit the recovery of DNA in as little as two or three days. In January 2007, the biological material was destroyed by the GBI crime lab.
[329 Ga.App. 799] 1. Davis contends the State improperly destroyed the biological material collected after K. C.'s abortion, which could have shown that K. C. was impregnated after the rape, violating both OCGA ...