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Cavender v. State

Court of Appeals of Georgia

November 20, 2014

CAVENDER
v.
THE STATE (two cases)

Child molestation. Coweta Superior Court. Before Judge Simpson.

Judgment affirmed in Case No. A14A1304. Judgment affirmed in part and reversed in part in Case No. A14A1305.

Person Law Firm, Wesley G. Person, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.

OPINION

Page 197

Phipps, Chief Judge.

In January 2012, a Coweta County grand jury indicted Kevin Ray Cavender for two counts of aggravated child molestation and five counts of child molestation. Later that month, a Carroll County grand jury indicted him for two additional counts of child molestation and two counts of sexual battery. Cavender waived venue as to the Carroll County offenses and consented to have both indictments tried jointly in Coweta County. Following the trial, the Coweta County jury found Cavender guilty of two counts of child molestation arising out of the Carroll County indictment and guilty of seven counts of child molestation pursuant to the Coweta County indictment.[1]

In Case No. A14A1304, Cavender challenges the sufficiency of the evidence supporting his convictions under the Carroll County indictment. In Case No. A14A1305, Cavender raises a sufficiency challenge to several of the Coweta County convictions.

Page 198

Although we affirm the convictions in Case No. A14A1304, we affirm in part and reverse in part the convictions in Case No. A14A1305.

When reviewing the sufficiency of the evidence, we construe the evidence and all reasonable inferences drawn from it in the light most favorable to the jury's verdict.[2] " We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt." [3]

So viewed, the evidence shows that 13-year-old T. B. knew Cavender, his wife, and his children through her best friend, V. K. In the late spring or early summer of 2010, T. B. spent the night at a Carroll County residence where Cavender was also present. She woke up in the middle of the night and found Cavender trying to lift the bedcovers off her. T. B. pulled the covers down, and nothing more happened.

Although the incident made T. B. uncomfortable, she spent the weekend with the Cavender family at their Coweta County home five or six months later, in November 2010. On the second night of the visit, T. B. was again awakened by Cavender in the middle of the night. This time, Cavender had his hands on her stomach and was tugging at her pants, which had been unbuttoned and unzipped while [329 Ga.App. 846] she slept. T. B. rolled over, buttoned her pants, and stayed still. ...


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