Gordon v. State
327 Ga. App. 774
Ga. Ct. App.2014Background
- Andre Gordon lived with a family when victim T.S. was 13 and was later convicted by a jury of child molestation, aggravated sexual battery, rape, and incest; he was sentenced as a recidivist and received concurrent and consecutive terms, including life without parole for rape.
- T.S. reported multiple sexual acts by Gordon: digital penetration ("finger[ing]"), attempted and at least some penile vaginal penetration, and other inappropriate touching; she made an outcry to relatives and police.
- Medical exams showed an intact hymen was absent but no bruising or tearing; T.S. denied any sexual history before the incidents with Gordon.
- Gordon appealed the denial of his motion for new trial raising: (1) insufficiency of evidence as to aggravated sexual battery, rape, and incest; (2) statute of limitations on aggravated sexual battery and incest; (3) fatal variance between indictment dates and trial evidence; (4) erroneous jury instruction on rape; and (5) ineffective assistance of counsel.
- The Court affirmed convictions for aggravated sexual battery, rape, and child molestation, reversed the incest conviction because the relationship (half-blood uncle/niece) is not within the statute, and remanded for resentencing.
Issues
| Issue | Gordon's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency — aggravated sexual battery (penetration with foreign object) | Victim's testimony that he "would finger her" was too vague to prove penetration | Testimony and investigator interview described insertion of fingers into vagina; even slight penetration and fingers qualify as "foreign object" | Evidence sufficient; conviction affirmed |
| Sufficiency — rape (carnal knowledge) | Victim's description ambiguous and could indicate sodomy rather than vaginal penetration required for rape | Victim and investigator described vaginal insertion; jury could credit testimony showing vaginal penetration by penis | Evidence sufficient; conviction affirmed |
| Sufficiency — incest (relationship) | Gordon was a "step-uncle" or half-uncle; statute covers uncle/niece | Statute enumerates specific relationships and includes half-blood siblings elsewhere but not half-blood uncle/niece | Statute does not criminalize half-blood uncle/niece; incest conviction reversed |
| Statute of limitations — aggravated sexual battery and incest | Counts were time-barred | Gordon failed to object at trial to time-bar; procedurally defaulted; incest issue moot after reversal | Aggravated sexual battery claim procedurally barred; incest claim rendered moot by reversal |
| Variance — indictment dates vs. proof (rape/incest) | Dates alleged were material; proof varied so fatal variance | Dates were not alleged as material; variation not prejudicial and within limitation period | No prejudicial variance as to rape; claim fails (incest moot) |
| Jury instruction on rape (force vs. against will) | Charge failed to differentiate forcible and "against her will" elements | Charge correctly instructed that a minor cannot consent and separately required proof of force; defined force per precedent (lack of resistance induced by fear) | No plain error; instruction adequate |
| Ineffective assistance of counsel | Counsel failed to raise statute-of-limitation plea, seek lesser-included jury charge, and object to rape instruction | Counsel made strategic choices (deny misconduct entirely); failures would be meritless or unsupported; appellant did not cite record for some claims | Ineffective-assistance claims rejected (some matters procedurally defaulted or strategic; incest-related claims moot) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of evidence)
- Colton v. State, 297 Ga. App. 795 (slight penetration and fingers qualify as foreign object under aggravated sexual battery)
- House v. State, 236 Ga. App. 405 (distinguishing "forcibly" and "against her will" for rape; lack of resistance induced by fear can satisfy force)
- Glisson v. State, 188 Ga. App. 152 (incest statute does not cover step or unenumerated relationships)
- Smith v. State, 311 Ga. App. 757 (incest statute applies only to specifically enumerated relationships)
- Adams v. State, 288 Ga. 695 (variance in dates not prejudicial where dates not alleged material and defendant shows no prejudice)
- Zellars v. State, 278 Ga. 481 (failure to object at trial bars raising statute-of-limitations issue on appeal)