Clemens v. State
318 Ga. App. 16
| Ga. Ct. App. | 2012Background
- Clemens was convicted of child molestation after a jury trial and appeals the conviction.
- In October 2005 Clemens, his daughter, and his girlfriend Webb stayed in Thomaston, GA; Webb observed Clemens naked on his knees straddling I. M. with oil on her body.
- Webb testified Clemens admitted a sexual addiction; Clemens later told officers he masturbated in the girls' bedroom and used oil excessively.
- Clemens testified that he masturbated in the girls' bed while they were asleep; his daughter A. C. testified Clemens penetrated her anus on April 29, 2006.
- Clemens was sentenced to 20 years; he filed an out-of-time appeal challenging demurrers, jury charges, evidentiary rulings, and sufficiency of the evidence.
- At issue was whether the indictment and trial instructions properly reflected the charged act of masturbation while straddling I. M., and whether exclusion of a potential witness (Clemens’s father) was error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indictment sufficiency to inform defense | Clemens argues the indictment failed to specify whether act was to, with, or in presence of I. M. | Clemens contends the indictment did not allege the specific manner required by the charge. | Indictment sufficient; it apprised Clemens of the charge and the manner charged. |
| Jury instruction accuracy regarding the specific act | Clemens argues instruction omitted the specific act of masturbating while straddling I. M. | State contends the charge, read as a whole, properly instructed on the offense. | Charge considered as a whole properly set forth basis to convict on the count. |
| Sufficiency of evidence for presence and exposure | Clemens claims lack of physical contact and that I. M. was asleep undermines sufficiency. | State relies on exposure and acts to satisfy the statute. | Evidence of naked exposure and masturbation in the same bed supports conviction; no requirement of the child waking. |
| Exclusion of testimony of Clemens’s father | Exclusion of witness testimony was harmful; the defense needed the testimony. | State argues untimely identification and lack of proffer; exclusion was proper and not harmful. | No reversible error; lack of proffer and overwhelming evidence negate harm. |
| Lesser included offense: attempt | Requested charge on criminal attempt as lesser included offense. | Evidence supported either completed offense or no offense; no lesser included instruction required. | No error; court not required to charge on lesser included offense. |
Key Cases Cited
- DeLong v. State, 310 Ga. App. 518 (2011) (exposing sexual organs suffices for molestation conviction)
- Rainey v. State, 261 Ga. App. 888 (2003) (presence of anatomical exposure supports conviction)
- Klausen v. State, 294 Ga. App. 463 (2008) (evidence supported masturbating with child nearby; culpability unchanged)
- Arnold v. State, 249 Ga. App. 156 (2001) (victim turning away does not negate culpability)
- State v. Interiano, 868 S2d 9 (La. 2004) (absence of physical touching required in some statutes; not controlling here)