Gioia v. State
307 Ga. App. 319
| Ga. Ct. App. | 2010Background
- Gioia was convicted by a jury of two counts of child molestation and one count of aggravated child molestation after trial.
- He was married to the mother of ten-year-old B.G. and eight-year-old L.G., the alleged victims.
- In October 2006, B.G. provided a note indicating Gioia had molested L.G.; authorities were contacted and L.G. disclosed touching and kissing, including genital contact.
- L.G. testified that Gioia kissed her on the mouth and touched her with his pants down on occasions she did not like.
- B.G. testified that Gioia kissed her in her private area, fondled her, and pressed his genitals against hers, and that she saw Gioia kissing L.G. on her private area.
- The court affirmed the convictions but vacated the sentence for aggravated child molestation and remanded for resentencing consistent with the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency for directed verdict | Gioia argues insufficient evidence to sustain convictions | State asserts sufficient evidence exists to prove each element | Sufficient evidence supports the verdict |
| Merger of aggravated sodomy with aggravated child molestation | Same conduct should merge prior to trial | Merger occurs after verdict for sentencing; acquittal on sodomy renders issue moot | Issues moot; no merger required since sodomy counted acquitted |
| Sentencing merger for two child molestation counts | Counts should merge for sentencing | Different victims; not the same conduct to merge | No merger required; counts involve different victims |
| Appropriate sentence under OCGA § 16-6-4(d)(1) for aggravated child molestation | Imposed 25 years to life improper under statute | Argues sentencing compliance with statute | Sentence vacated and remanded for proper sentence under statute |
Key Cases Cited
- Zuniga v. State, 300 Ga.App. 45 (2009) (directed-verdict standard mirrors sufficiency review)
- Vaughn v. State, 301 Ga.App. 391 (2009) (sufficiency review and credibility resolved by jury)
- Gable v. State, 222 Ga.App. 768 (1996) (credibility and witness conflicts for jury resolution)
- Drinkard v. Walker, 281 Ga. 211 (2003) (merger principles for multiple offenses)
- Funderburk v. State, 276 Ga. 554 (2003) (pretrial vs post-verdict considerations on merger)