Hernandez v. State
319 Ga. App. 876
| Ga. Ct. App. | 2013Background
- Hernandez was the live-in boyfriend of the victim's mother and the victim referred to him as her stepdad.
- The victim began being molested almost daily when she was seven, with acts described as touching 'everywhere' including her chest and lower private parts, while her mother was at work.
- The molestation continued for about a year until the victim moved to Mexico, then resumed for several years after returning.
- In 2009 the victim's family separated from Hernandez, after which the molestation was disclosed to the mother and reported to police.
- The indictment charged aggravated child molestation based on acts involving the mouth and the victim's sexual organs, i.e., sodomy.
- Hernandez was convicted of two counts of aggravated child molestation and three counts of child molestation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fatal variance between indictment and proof | Hernandez argues a fatal variance existed. | Hernandez argues the variance undermines conviction. | No fatal variance; indictment sufficed and evidence matched. |
| Venue proof beyond reasonable doubt | State failed to prove venue in DeKalb County. | N/A (not explicitly stated as separate argument by Hernandez). | Venue proven beyond a reasonable doubt in DeKalb County. |
Key Cases Cited
- Pippins v. State, 263 Ga. App. 453 (Ga. Ct. App. 2003) (standard for sufficiency and directed verdict review)
- Turner v. State, 231 Ga. App. 747 (Ga. Ct. App. 1998) (variance and sufficiency analysis; sufficiency of indictment)
- Gioia v. State, 307 Ga. App. 319 (Ga. Ct. App. 2010) (indirect proof of acts suffices to prove aggravated molestation)
- Collins v. State, 269 Ga. App. 381 (Ga. Ct. App. 2004) (relates to ‘private part’ testimony and sufficiency)
- Richie v. State, 183 Ga. App. 248 (Ga. Ct. App. 1987) (victim's reluctance to name organs not fatal to proof)
- Maloney v. State, 317 Ga. App. 460 (Ga. Ct. App. 2012) (sufficiency of evidence under OCGA § 16-6-4)
- Jackson v. Virginia, 443 U.S. 307 (U.S. Supreme Court 1979) (standard for reviewing sufficiency of evidence)