O'Rourke v. State
327 Ga. App. 628
Ga. Ct. App.2014Background
- O’Rourke, the victim D.C.’s mother’s live-in boyfriend, was tried for two counts of child molestation and one count of aggravated child molestation.
- On June 25, 2010, D.C., then nine, testified that O’Rourke woke her, instructed her to remove clothing, and inserted his private into her butt; her brother corroborated hearing noises and seeing D.C. on the bed with O’Rourke.
- The brother reported the incident to their mother; D.C. was taken to the hospital for examination, where she described the conduct to Detective Chisholm.
- DNA evidence from bed sheets matched O’Rourke; semen was found on a bed sheet, and D.C. provided consistent statements in forensic interviews and trial testimony.
- O’Rourke denied molestation in police interviews but admitted prior applying medicine to D.C.’s legs and buttocks; he later confessed to a friend about masturbation behind D.C. and anticipated DNA findings.
- The jury convicted O’Rourke on two counts of child molestation; he was acquitted of aggravated child molestation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count 1 | O’Rourke argues evidence fails for Count 1. | O’Rourke contends lack of corroboration and insufficient link to intent. | Evidence sufficient beyond reasonable doubt. |
| Sufficiency of evidence for Count 2 | D.C.’s prior acts support Count 2 despite not dating all acts. | Credibility issues with earlier testimony; not all acts dated. | Evidence sufficient for Count 2; prior not guilty on Count 3 does not negate Count 2. |
| Special demurrer as to Count 2 | Indictment should identify specific date or narrow range; lack of exact date is permissible with ranges. | State failed to show inability to narrow dates; Mosby requires hearing; or harmless error. | No reversible error; harmless error standard applies; record supported date range. |
| Admission of State’s Exhibit 9 (bed sheets) and chain of custody | Chain of custody adequately preserves identity; admissible. | Stapled bag versus sealed raises tampering concerns. | Admission proper; no tampering shown; sufficient chain of custody. |
Key Cases Cited
- Craft v. State, 324 Ga. App. 7 (Ga. App. 2013) (sufficiency standard; rational jury verdict review)
- Wyley v. State, 259 Ga. App. 348 (Ga. App. 2003) (separate offenses; not guilty on one does not affect others)
- Layman v. State, 279 Ga. 340 (Ga. 2005) (date-range indictment exception for inability to pinpoint exact date)
- Blackmon v. State, 272 Ga. App. 854 (Ga. App. 2005) (hearing not required when victim cannot specify date)
- Mosby v. State, 319 Ga. App. 642 (Ga. App. 2013) (evidentiary hearing required to support special demurrer needs; misapplied here)
- Davis v. Phoebe Putney Health Systems, 280 Ga. App. 505 (Ga. App. 2006) (pre-trial rulings reviewed on error-correction basis)
- Howard v. State, 281 Ga. App. 797 (Ga. App. 2006) (harmless error standard in post-conviction pre-trial rulings)
- Mickens v. State, 318 Ga. App. 601 (Ga. App. 2012) (evidence of fungible items and chain-of-custody foundation)