MILLER, P. J., DOYLE, P. J., and REESE, J.
MILLER, PRESIDING JUDGE.
King, III, was convicted by a jury of incest (OCGA §
16-6-22) of his niece, M. O. 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.
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).
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
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.
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
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."
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.
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.
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.
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.
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.
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 ...