March 13, 2015
Reconsideration denied March 30, 2015 -- Cert. applied for.
Aggravated child molestation, etc. Fulton Superior Court. Before Judge Russell.
Richard W. Marks, for appellant.
Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.
DOYLE, Presiding Judge. Miller, J., concurs. Dillard, J., concurs fully and specially.
Doyle, Presiding Judge.
In a jury trial, Stephen Kendrick was found guilty of aggravated child molestation, statutory rape, child molestation, contributing to the delinquency of a minor, and criminal trespass. He appeals from the denial of his motion for new trial, challenging the sufficiency of the evidence as to the aggravated child molestation count on the ground that there was no physical injury to the victim. For the reasons that follow, we affirm.
" On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence."  So viewed, the record shows that Kendrick, a 32-year-old man, approached the victim's father at a gas station seeking a ride. Kendrick then explained that he had nowhere to go, and the father allowed Kendrick to work at his store and stay in the basement of his home, where he lived with his wife and children, including his 13-year-old daughter, L. F. After Kendrick appeared to grow closer to L. F., the father asked Kendrick to leave. A few weeks later, L. F. ran away from her home and stayed with Kendrick at his sister's or at an apartment. Kendrick had intercourse with L. F., and they
later learned that she was pregnant after L. F. was located by police, and her mother took her to the hospital for an evaluation. L. F. carried the baby to term and delivered a healthy boy.
Kendrick did not dispute his paternity of the child, and he was subsequently charged with aggravated child molestation, statutory rape, child molestation, interference with custody, contributing to the delinquency of a minor, and criminal trespass. Following a jury trial, he was found guilty of each count except for interference with custody. Kendrick's motion for new trial was denied, giving rise to this appeal.
Kendrick contends that the evidence was insufficient to support his conviction for aggravated child molestation because there was no evidence of a physical injury caused by the act of having intercourse with the victim. OCGA § 16-6-4 (c) defines the offense as follows: " A person commits the offense of aggravated child molestation when such person commits an offense of child molestation [e.g., an immoral [331 Ga.App. 683] or indecent act to any child under the age of 16] which act physically injures the child or involves an act of sodomy."  There was no evidence at trial of an act of sodomy; therefore, the State had the burden to prove that Kendrick's molestation caused a physical injury to the victim.
The evidence in the case was somewhat unusual in that there was no physical exam near in time to the molestation, and the victim, who believed she was in a romantic relationship with Kendrick, did not testify that the intercourse was physically forceful, painful, or otherwise physically injurious. Thus, there was no evidence presented depicting the physical injuries one might expect in a case such as this. Perhaps because of these peculiar facts, the indictment alleged, and the State argues on appeal, that Kendrick caused an injury as follows:
Stephen Troy Kendrick [is accused of] aggravated child molestation ... for [that] said accused ... did unlawfully commit an immoral and indecent act to, with and in the presence of [the victim], a child under the age of sixteen (16) years, by engaging in sexual intercourse with [the victim], with intent to arouse and satisfy his sexual desires; said act involving physical injury to said child by impregnating her causing said child to endure childbirth; [ ]contrary to the laws of [Georgia]... .
OCGA § 16-6-4 does not define what " physically injures" means, and we have found no Georgia case law explicitly defining the term in this context, so
we must turn to the basic rules of statutory construction. Specifically, we apply the fundamental rules of statutory [331 Ga.App. 684] construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the
According to Black's Law Dictionary (6th ed. 1990), the term " injury" means " any wrong or damage done to another, either in his person, rights, reputation, or property," and more specifically, " bodily injury" means " [p]hysical pain, illness[,] or any impairment of physical condition." It is axiomatic that a full-term pregnancy involves at least some impairment of physical condition, and furthermore, there was evidence in this case that the victim experienced pain during the two-day labor and delivery process. So by the above definitions, the record supports a finding of a physical injury to the victim caused by the molestation.
Furthermore, courts in other jurisdictions have held that pregnancy constitutes physical harm, concluding with " no trouble ... that pregnancy and childbirth resulting from [non-consensual sexual conduct] constitute physical injury" to the victim. In this case, the underage victim's professed desire to endure the pregnancy and deliver the baby is of no moment because of her legal incapacity to consent to the intercourse.
In light of these accepted views of physical injury in the present context, we conclude that the record here supported a finding that [331 Ga.App. 685] Kendrick's victim was physically injured by the molestation. Accordingly, his enumeration is without merit, and we affirm his conviction.
Miller, J., concurs. Dillard, J., concurs fully and specially.
concurring fully and specially.
In life and in law, context is often crucial; and in this case, context is extremely important. Suffice it to say, as a general matter, it would be highly unusual (and indeed offensive) to refer to a woman's pregnancy as a " physical injury." Such a characterization would not only be rightly perceived as demeaning to the mother, but also as an attempt to dehumanize her unborn child. The question before us, however, does not concern a mother's decision to carry her child to term, but is instead whether a man who molests a young girl and impregnates her as a result of that evil act should be deemed to have " physically injured" her within the meaning of OCGA § 16-6-4 (c) (i.e., the aggravated child molestation statute). And like the majority, I answer that question in the affirmative.
As the majority correctly notes, OCGA § 16-6-4 does not define what " physically injures" means, and there is no precedent established by this Court or our Supreme Court defining the term in this particular context. The question, then, is whether a fair reading of the relevant statutory language, " physically injures," encompasses the
physical changes and conditions associated with a pregnancy caused by child molestation. And like the majority, my analysis necessarily begins with familiar and binding canons of statutory construction. In this respect, our charge as an appellate court is to " presume that the General Assembly meant what it said and said what it meant," which means that we " must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would." 
Here, I agree with the majority that a fair reading of " physically injures," in this unique statutory context, includes the physical [331 Ga.App. 686] changes and conditions associated with a pregnancy resulting from child molestation. Indeed, in addition to the definitions offered by the majority, The Oxford English Dictionary defines " injure" as " [t]o do hurt or harm; to inflict damage or detriment upon; to hurt, harm, damage; to impair in any way."  And as the majority aptly notes, " [i]t is axiomatic that a full-term pregnancy involves at least some impairment of physical condition[.]" Thus, I have no reservations in joining the majority's conclusion that the physical changes and conditions experienced by a woman as a result of a pregnancy caused by child molestation constitute a " physical injury" within the meaning of OCGA § 16-6-4 (c).
I fully concur, then, with the majority's opinion, and as such, it may be cited as precedential authority in future cases. I do so, however, with the understanding that our characterization of the physical changes and conditions associated with a pregnancy caused by child molestation as a " physical injury" is limited to this unique statutory context (i.e., as a basis for an enhanced criminal penalty against a child molester). Nothing in this opinion may be used to deny a mother or her unborn child any rights, protections, or privileges that they would otherwise be entitled to under state or federal law.