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King v. State

Court of Appeals of Georgia, Second Division

January 11, 2018

KING
v.
THE STATE.

          MILLER, P. J., DOYLE, P. J., and REESE, J.

          MILLER, PRESIDING JUDGE.

         Robert King, III, was convicted by a jury of incest (OCGA § 16-6-22) of his niece, M. O.[1] He moved for a new trial, alleging, relevant to this appeal, that the evidence was insufficient to support the verdict and also asserting the general grounds that the trial court should have acted in its discretion as the "thirteenth juror" to grant a new trial. The trial court denied the motion, and this appeal followed. We affirm King's conviction because the evidence was sufficient to establish the elements of the crime of incest and the necessary consanguinity between him and the victim. However, after a thorough review of the record, we must vacate and remand the trial court's order denying the motion for new trial because the trial court failed to consider the general grounds, including its authority to sit as a "thirteenth juror, " that King raised in his written motion for new trial and at the hearing on that motion.

         "On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citations and footnote omitted.) Wynn v. State, 322 Ga.App. 66 (744 S.E.2d 64) (2013).

         So viewed, the record shows that in October 2012, the then-17-year-old victim was living with her foster family in Claxton, Georgia, when she got into an argument with her foster father and ran away from home. The victim was unable to contact her biological parents, so she called King, who was her biological father's brother. King agreed to meet her and her one-year-old daughter at a drugstore that evening.

         After King picked up the victim and her daughter, they got something to eat, and King purchased some diapers for the baby and undergarments for the victim. King then drove to his home, where he and the victim watched television for a few minutes before the victim decided to take a shower. When she was finished bathing, the victim returned to the living room to watch television again. The victim grew tired and asked King where she should sleep. King responded that she could sleep in the bedroom and he would sleep on the couch. The victim and her daughter went into the bedroom to go to sleep.

         Shortly after she went to bed, the victim heard King enter the bedroom and sit on the edge of the bed. He began to rub her back, telling her that he wanted to "take care" of her and that "everything's going to be okay." The victim told King to leave her alone, and he left the bedroom.

         A little while later, however, King returned and lay down on the bed. Using one hand, King held the victim's hands together while he used the other arm to remove the victim's underwear. He then climbed on top of her and penetrated her vagina with his penis. The victim repeatedly told him to stop, but King continued, saying "I still love you. I'm still your uncle." When the victim's baby started crying, the victim was able to free herself. As King left the room, he told the victim, "You're still my niece."

         After the victim heard King leave the house, she found a phone and tried to contact her mother and father. She finally sent a text message to her father, telling him to come get her and that her uncle had raped her.

         The victim's father contacted his sister, who drove over to King's home and took the victim to another relative's home. The next morning, the victim went to the hospital.

         The Georgia Bureau of Investigation ("GBI") investigated the allegations, collected the rape kit from the hospital, and conducted DNA swabs of the victim and King. In an interview with the GBI, King admitted that the victim's father was his brother, and he referred to the victim as his niece. The DNA swab taken from the rape kit showed male DNA consistent with King or another paternal relative of the victim. An examination of the underwear the victim was wearing at the time of the incident showed the presence of seminal fluid, but no sperm.

         1. In his first enumeration of error, King argues that the evidence was insufficient to convict him because (a) the State failed to prove that the victim was related to him by blood; and (b) the victim recanted her story and her conduct immediately after the alleged incident was inconsistent with her claims. We disagree.

         Under OCGA § 16-6-22 (a), "[a] person commits the offense of incest when such person engages in sexual intercourse . . . with a person whom he or she knows he or she is related to either by blood or by marriage as follows: . . . [u]ncle and niece or nephew of the whole blood or of the half blood." At issue here is whether the evidence, viewed in the light most favorable to the jury's verdict, established the requisite familial relationship between the defendant and the victim. We conclude that it does.

         At trial, the victim's biological mother testified as to the identity of the victim's biological father, and it is undisputed that the person she identified as the victim's father is King's brother. Moreover, the victim testified that King referred to her as his niece while committing the crime, and King's own statement to GBI investigators acknowledged the blood relationship between himself and the victim. This evidence was sufficient for a jury to conclude that the victim was King's niece, and that King knew of the relationship. Wynn, supra, 322 Ga.App. at 68 (2). Given this evidence, it was not necessary for the State to provide DNA evidence to establish consanguinity. Id. Thus, there was sufficient evidence from which the jury ...


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