Pendley v. State
308 Ga. App. 821
| Ga. Ct. App. | 2011Background
- Pendley was indicted for aggravated child molestation, rape, attempted child molestation, and first degree cruelty to children for acts against J.D., daughter of Pendley's girlfriend, in Gilmer County between Dec 2000 and Jan 2002.
- DFCS custody of J.D. began in Jan 2002 due to mother’s neglect; J.D. disclosed abuse in 2003, describing acts from ages seven to ten.
- A forensic interview in 2003 and trial testimony described Pendley entering J.D.’s room, coercing, touching, and partially penetrating her; J.D. testified the acts occurred at a Gilmer County residence.
- The state introduced similar transaction evidence—Pendley’s son testified about a pinch on J.D.’s breast, Pendley’s daughter recounted an 1989 request to lie naked, and a third witness described a 1970s attempt to molest a nine-year-old girl related to Pendley.
- A pediatric nurse found no hymenal injuries, but testimony indicated lack of injury did not negate abuse; credibility issues were for the jury to resolve.
- The trial court admitted the similar transaction evidence; Pendley was convicted of forcible rape and attempted child molestation, with a separate cruelty-to-children conviction; sentencing did not merge the cruelty offense into rape.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue sufficiency for Gilmer County | J.D. testified the acts occurred at a Gilmer County residence. | Any discrepancy in venue testimony creates credibility issues, not lack of venue. | Evidence authorized a finding of proper venue in Gilmer County. |
| Sufficiency of force for forcible rape | Lack of physical injury does not negate force; fear and prior threats show force. | No requirement of physical injury to prove rape; other elements not met. | Sufficient evidence of force to convict of forcible rape. |
| Sufficiency for attempted child molestation | Pendley raised topic of masturbation and sought that act from J.D. | Evidence supports only attempted, not completed, child molestation. | Evidence supported attempted child molestation conviction. |
| Admissibility of similar transaction evidence | Evidence showed Pendley’s lustful disposition toward young children. | Time gap (11 and 30 years) renders evidence overly prejudicial. | Court did not abuse discretion; remote similarities weighed for probative value. |
| Merger for sentencing (cruelty to children and rape) | Cruelty to children cannot merge with rape because each offense contains unique elements. | If elements overlap, merger required; otherwise not. | No merger required; each offense required proof of distinct facts. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency standard for evidentiary review)
- Jones v. State, 272 Ga. 900 (2000) (venue proof beyond a reasonable doubt)
- Chavez v. State, 306 Ga. App. 272 (2010) (jury credibility and venue issues remain for jury)
- Brown v. State, 287 Ga. App. 857 (2007) (credibility and admissibility considerations in evidence)
- Watson v. State, 304 Ga. App. 128 (2010) (evidence of force in rape cases)
- Matlock v. State, 302 Ga. App. 173 (2010) (force and corroboration considerations in sexual offenses)
- Pareja v. State, 286 Ga. 117 (2009) (remote similar-transaction evidence admissibility factors)
- Leaptrot v. State, 272 Ga. App. 587 (2005) (appropriate purpose for similar transaction evidence)
- Payne v. State, 285 Ga. 137 (2009) (similar transaction evidence governing standards)
- Drinkard v. Walker, 281 Ga. 211 (2006) (statutory merger analysis)