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Andrews v. State

Court of Appeals of Georgia

March 19, 2015

ANDREWS
v.
THE STATE

Page 60

Incest, etc. Chatham Superior Court. Before Judge Karpf.

Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Emily T. Puhala, Assistant District Attorney, for appellee.

OPINION

Page 61

Barnes, Presiding Judge.

Following a jury trial, Robert Clayton Andrews was found guilty of three counts of incest, three counts of statutory rape, two counts of child molestation, enticing a child for indecent purposes, and false statements. He now appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress DNA evidence, in overruling his objection to impermissible character evidence, and in overruling his objection and motion for mistrial when the State commented on his right to remain silent in its closing argument. For the reasons that follow, we affirm.

1. Andrews contends that the trial court erred in denying his motion to suppress DNA evidence. He maintains that the DNA [331 Ga.App. 354] evidence was provided for a paternity test only, and thus could not be used in his criminal trial. We do not agree.

In reviewing a trial court's ruling on a suppression motion, evidence is construed most favorably to uphold the findings and judgment. When consent to search is in issue, the State has the burden of proving the consent was freely and voluntarily given. The validity of a consent to search is determined from all the circumstances. A police officer cannot arbitrarily expand the scope of the consent to search. A consensual search is invalid when it exceeds the scope of the consent.

(Citations omitted.) State v. Long, 232 Ga.App. 445 (502 S.E.2d 298) (1998).

The evidence demonstrates that in January 2011, police opened an investigation when it was discovered that the 12-year-old victim was pregnant. The victim told police that she been in a sexual relationship with a man named " Josh." After the baby was born in June of that year, police obtained a DNA sample from the baby and the victim, but the case was administratively closed because police had no further leads. In October 2011, the victim told her grandmother, with whom she lived, that Andrews, who was her uncle and the grandmother's son, was the baby's father. The grandmother apparently put the victim out of her home, but kept the baby. Afterward, when the victim and the grandmother were involved in a public altercation, the police were called and they subsequently renewed the investigation into the victim's pregnancy.

At the motion to suppress hearing, a detective testified that on October 25, 2011, after having been identified as a suspect, Andrews and the grandmother voluntarily came to the police station and asked for a paternity test, purportedly for the purpose of exonerating him. The detective was busy at the time and asked them to come back later in the afternoon. When they returned, before having his saliva tested, Andrews signed a consent form which the officer explained to Andrews meant that, " you're freely giving this saliva sample to this paternity test because, obviously, you've been accused of something." The " Voluntary Consent to Search" form stated in relevant part:

I have been advised ... and understand that I am not required to and cannot be compelled to consent to this search without a ...

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