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Ponder v. State

Court of Appeals of Georgia

June 25, 2015

PONDER
v.
THE STATE

Page 153

Rape, etc. Fulton Superior Court. Before Judge McBurney.

Margaret E. Flynt, for appellant.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

BARNES, Presiding Judge. Ray and McMillian, JJ., concur.

OPINION

Page 154

Barnes, Presiding Judge.

A jury convicted Demacio Ponder of ten offenses, and the trial court sentenced him to life in prison on convictions for rape and two counts of aggravated child molestation, ten years to be served consecutively in custody followed by ten years on probation for cocaine possession with intent to distribute, with additional time for the other offenses to be served consecutively.[1] After the trial court denied his motion for new trial, Ponder appealed, arguing that the evidence was insufficient to sustain his convictions for rape and one of the two [332 Ga.App. 577] aggravated child molestation counts and that his trial counsel was ineffective for failing to reasonably challenge the State's DNA evidence and for failing to object to improper testimony and closing argument. For the reasons that follow, we affirm.

Page 155

On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict,

and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Citations and punctuation omitted.) McMillian v. State, 263 Ga.App. 782, 783-784 (1) (589 S.E.2d 335) (2003).

So viewed, the evidence in this case established that the 15-year-old victim reported to her boyfriend that she had been molested by her father, Ponder. The victim's mother testified that when she drove up to the boyfriend's house to pick up her daughter, the boyfriend yelled out that the victim was pregnant by her father. The victim left with her mother, who flagged down a uniformed officer in a patrol car and reported to him that she just found out that her daughter had been sexually assaulted by her father and was pregnant. The officer directed the victim and her mother to police headquarters, and the case was assigned to a detective with the Special Victims Unit who primarily worked on sex crimes involving minors.

The victim was examined in a local children's hospital by an emergency room doctor for the chief complaint of sexual assault. The victim admitted to vaginal and oral penile penetration, and tested positive for pregnancy. An examination revealed no physical findings or DNA related to sexual assault. The doctor testified that the victim reported that she had been physically assaulted a week or two previously, and the doctor found several bruises on the victim's torso that were more than a day old.

The victim's eight-week pregnancy was terminated and the products of conception were released to the detective and ultimately examined by a forensic biologist with the GBI crime lab who was an expert in DNA profiling. The expert explained that he was unable to obtain a complete DNA profile from the genetic material because it contained predominantly female DNA, which probably belonged to the victim, with only a very small portion containing male DNA, which probably belonged to the fetus. Being unable to develop a [332 Ga.App. 578] complete profile of all 23 pairs of chromosomes, which would have given a very exacting match, he was able to examine only the Y chromosome, or haplotype (meaning half of a chromosome pair), which establishes only paternal lineage. The expert determined that the haplotype was the same as Ponder's but not the same as the victim's boyfriend, thus excluding the boyfriend as a possible contributor to the genetic material he tested. He also testified that all males related to the father in any degree had this haplotype, and that, based on a formula applied to a limited database of male haplotypes in the United States, approximately one in 940 African-American men shared this particular haplotype.

The victim, who was 18 as of trial, testified that she did not have a relationship with Ponder until she was 13, after Ponder's grandmother died in 2008. After that, she began to spend weekends with Ponder because her mother was concerned about the victim's relationship with her boyfriend and thought she needed a male role model. Several people lived in the same house as Ponder, including his mother, his sister and her two children, two or three uncles, and occasionally Ponder's son. In 2009, the victim began living at Ponder's house during the week, normally sleeping in his room, sometimes in pajamas but sometimes in her street clothes because the house had " a lot of bugs."

The victim testified that when she told Ponder that she wanted to be a criminal forensic specialist when she grew up, he said he would show her something else, and taught her " how to sell dope." He taught her how to weigh the dope, put it into packages, and place the packages in the freezer " until somebody comes." If Ponder was not present when someone came to buy the dope, she sold it to them.

The victim testified that she generally slept in Ponder's bedroom when she stayed with him, and that Ponder had molested her

Page 156

there between five and ten times. Despite the State's efforts to clarify which specific parts of Ponder's body touched which specific parts of the victim's body, the victim's testimony was somewhat indirect. She testified that Ponder felt her with his hands over his clothes in her " lower area." When asked to identify which part of her lower area Ponder touched, the victim said her " front side," and when asked what she did with that area or what it was for, she responded, " To pee." When asked if Ponder touched any other areas, the victim testified that Ponder got on top of her, removed both of their clothes, and " started having sex with me," further explaining that he had inserted his penis into her. When asked what part of her body Ponder inserted his penis into, the victim replied, " In my pants area." The State asked, " In your panties?," and she responded yes. She also testified that Ponder's penis touched her bottom and his mouth [332 Ga.App. 579] touched her " pants area." Finally, when asked if her mouth touched any part of Ponder's body, the victim said yes, and when asked " Besides his penis?," she said no.

Finally, the victim testified that on the last occasion she saw Ponder before her outcry, they were at the house of her little brother's mother, where Ponder asked her to clean her brother's room. When she said no, Ponder punched her in the face and the back of the head and banged her head on the hardwood floor. She ran out of the door when Ponder went to the restroom and went first to her godmother's house and then to her mother's house. When asked why she had not returned to her mother's house when the molestation first occurred, she responded that she did not know but that she did not want to be at her mother's either because the two-bedroom residence was already crowded with her mother's boyfriend and his two children, with whom she did not get along.

The detective testified that a search of Ponder's bedroom pursuant to a warrant uncovered a bulletproof vest, identification and paperwork with Ponder's name on it, a loaded .38 caliber handgun, small baggies, a scale, a plate with white residue on it, and 25 individual packages of cocaine in a freezer. Based on the detective's experience, he testified that amount of cocaine was not for personal use but for distribution, and the scales and baggies were tools used by drug dealers.

After the State rested, the trial court granted Ponder's motion for a directed verdict on two counts of the indictment, one that accused Ponder of child molestation for placing his hands on the victim's breasts and one that accused him of sexual battery for making physical contact with the victim's breasts. The jury then convicted Ponder on eight counts, finding him not guilty only on Count 10, which charged him with cruelty to children in the first degree for maliciously causing the victim cruel and excessive mental pain by forcing her to package and sell cocaine.

The jury subsequently considered Count 13 of the indictment charging Ponder with possession of a firearm after being convicted of theft by receiving stolen property. The State introduced a certified copy of that conviction, both sides argued, and the trial court charged the jury as to the ...


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