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 ...