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Rowland v. State

Court of Appeals of Georgia, Fifth Division

February 12, 2019

ROWLAND
v.
THE STATE.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          McFadden, Presiding Judge.

         Kenneth Rowland was tried before a jury and convicted of aggravated sexual battery, cruelty to children in the first degree, and three counts of incest. He appeals, challenging the sufficiency of the evidence, the denial of a motion for continuance, the denial of a special demurrer, and a jury instruction on cruelty to children. But we find sufficient evidence to support the jury's verdict, no abuse of discretion in denying a continuance, no error in denying the special demurrer, and no reversible error in the jury instructions as a whole. Rowland further asks for the case to be remanded to the trial court for a hearing on his claim of ineffective assistance of counsel; however, he has failed to identify any specific deficiencies by counsel, so no hearing on remand is needed. Accordingly, we affirm.

         1. Sufficiency of the evidence.

         Rowland claims that there was insufficient evidence to support his convictions. The claim is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

Hall v. State, 335 Ga.App. 895 (783 S.E.2d 400) (2016) (citation and punctuation omitted).

         So viewed, the evidence shows that K. R. is the adopted daughter of Rowland. When K. R. was five years old, Rowland started touching her on the buttocks. On one occasion in a car, Rowland had K. R. pull down her pants and he then rubbed her vagina with his fingers. On another occasion, Rowland got into bed with K. R., touched her breasts and buttocks, and tried to force her to rub his penis. Rowland first made K. R. perform oral sex when she was approximately 11 years old, pushing her to the floor of their kitchen and putting his penis in her mouth. After that, whenever Rowland molested K. R., he would try to force her to perform oral sex on him. Rowland also made K. R. watch pornographic movies on his computer.

         When K. R. was about 16 years old, Rowland attempted to have sexual intercourse with her, but stopped when K. R. said that it hurt. Approximately a year later, in January 2014, when K. R. was seventeen years old, Rowland had sexual intercourse with her. During the incident, he pushed her on to a bed; pulled down her panties; touched her genital area with his fingers and mouth, inserting a finger into her vagina and licking her vagina; tried to put his penis in her mouth; pulled her on top of him and attempted unsuccessfully to insert his penis into her vagina. Rowland then made K. R. get on her hands and knees on the bed and penetrated her vagina with his penis. Several days later, K. R. told two friends about the sexual abuse by her father, and the mother of one of the friends subsequently reported the alleged abuse to the sheriff's department.

         In challenging the sufficiency of the evidence, Rowland points to purported inconsistencies and conflicts in the evidence. However, any such conflicts or inconsistencies were matters for the jury to resolve. Williams v. State, 347 Ga.App. 171, 173 (818 S.E.2d 88) (2018). As our Supreme Court has explained, "resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court." Pittman v. State, 300 Ga. 894, 897 (1) (799 S.E.2d 215) (2017) (citation and punctuation omitted). Accord Jackson v. State, 347 Ga.App. 199, 201 (1) (a) (818 S.E.2d 268) (2018) ("It is the function of the jury, not the [c]ourt, to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony.") (citation and punctuation omitted). So "[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, the appellate court must uphold the jury's verdict." Williams, supra (citation and punctuation omitted). In this case, there was sufficient competent evidence to authorize the jury to find Rowland guilty of the crimes beyond a reasonable doubt, and therefore we must uphold the convictions.

         2. Continuance.

         Rowland contends that pursuant to OCGA § 17-16-6, the trial court erred in failing to grant a continuance based on an alleged discovery violation by the state. But under that statute, the trial court has broad discretion to fashion an appropriate remedy and we find no abuse of that discretion in this case.

         The day before trial, counsel for Rowland objected to the trial going forward based on the state's alleged failure to give him a copy of the recorded forensic interview of K. R. The state's attorneys responded that they believed they had given defense counsel a copy of the approximate hour-and-a-half recording during discovery. The trial judge, noting that the state believed it had in fact provided the recording and that it had an open-file discovery policy, nevertheless ordered the state to give defense counsel a copy of the recording that day so he could review it before the start of trial the next day. The state subsequently did not introduce the recorded interview into evidence at trial.

When[, as in the instant case, ] a criminal defendant elects to engage in reciprocal discovery under Georgia's Criminal Procedure Discovery Act, the [s]tate and the defendant are required to produce certain types of evidence and information. See OCGA § 17-16-1 et seq. If it comes to the attention of the trial court that either the [s]tate or the defendant has failed to comply with the requirements of the Act, the court has wide latitude in fashioning a remedy for such violation. OCGA § 17-6-6 [providing in pertinent part that if the state fails to comply, the court may order the state to permit the discovery, interview the witness, grant a continuance, or prohibit introduction of the evidence upon a showing of prejudice and bad faith]. As we have noted, this broad ...

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