DELONG v. State
310 Ga. App. 518
| Ga. Ct. App. | 2011Background
- DeLong appeals his convictions for one count of child molestation, two counts of distributing a Schedule IV drug, and two counts of influencing witnesses.
- The incidents began in September 2005 at DeLong and his then-wife’s home, involving DeLong, T.C. (a young niece), and related family members.
- Hudson (T.C.’s mother) observed DeLong and T.C. in bed with their underwear pulled down and noted suspicious circumstances, including Ambien administration.
- An earlier incident had occurred where Hudson found DeLong in bed with T.C. and their daughter, with alleged underwear exposure and fecal matter on the sheets, prompting concern and a forensic interview.
- T.C. ultimately provided a forensic interview; DeLong admitted giving Ambien but denied molestation, and a separate witness (J.F.’s mother) recalled Ambien being given to J.F.
- DeLong attempted to influence the witnesses by pressuring T.C.’s family to drop the charges, leading to a separate arrest for influencing witnesses; the State charged DeLong with child molestation, distributing Ambien, and influencing witnesses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the child molestation conviction supported by sufficient evidence? | DeLong argues evidence insufficient | State asserts inferential proof of intent from exposure | Yes; evidence sufficient for molestation |
| Did the State prove distribution of a controlled substance (Ambien) to T.C. and J.F.? | Ambien is a trade name; link to Zolpidem not proven | Ambien identified as Schedule IV drug; distribution proven | No; convictions reversed for distributing a controlled substance due to lack of linking Ambien to Zolpidem |
| Was DeLong's conviction for influencing witnesses properly supported or reversible due to threats? | Threats to sue fit within influencing witnesses | Lawsuit threat not within statute’s scope | No; convictions reversed for influencing witnesses |
| Was any error from referencing the invocation of the Fifth Amendment requiring mistrial? | Admission of silence invocation prejudicial | Curative instruction cured potential prejudice | No; no reversible error; mistrial properly denied |
Key Cases Cited
- Elrod v. State, 143 Ga.App. 331 (Ga. App. 1977) (trade name evidence must be linked to listed substances; trade name alone insufficient)
- Rainey v. State, 261 Ga.App. 888 (Ga. App. 2003) (exposure alone can support child molestation conviction)
- Tant v. State, 247 Ga. 264 (Ga. 1981) (link between trade name and listed controlled substance; admissibility)