Weeks v. State
316 Ga. App. 448
Ga. Ct. App.2012Background
- Weeks was convicted by Cherokee County jury of aggravated child molestation; trial court denied his new-trial motion.
- Weeks challenges sufficiency of evidence due to a claimed fatal variance between indictment and proof.
- He argues the jury charge on child molestation was overly broad and the witness-credibility charge was abbreviated.
- Weeks contends his trial counsel was ineffective for failing to request a legally accurate credibility-charge.
- Evidence showed 11-year-old L. H. wrote a December 15, 2007 note alleging Weeks forced her to perform sexual acts; the note was admitted and L. H. testified to repeated abuse.
- Weeks gave a videotaped statement denying abuse; he admitted shaving his groin and sometimes locking L. H.’s brother out of the trailer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Variance between indictment and proof | Weeks alleges fatal variance to void conviction | Indictment insufficiently narrows act; variance fatal | No fatal variance; sufficient notice and scope |
| Overbroad jury charge on child molestation | Charge too broad relative to indictment | Indictment broad enough; court did not err | Charge not error; indictment broad enough to encompass oral sodomy |
| Abbreviated jury charge on witness credibility | Abbreviated charge omitted factors needed for credibility | Abbreviated charge proper absent proper request | No error; failure to request did not require listing factors |
| Ineffective assistance for not requesting precise credibility charge | Counsel deficient; prejudice shown | No reasonable probability of different outcome | No prejudice; record shows no reasonable likelihood of different result |
Key Cases Cited
- Haley v. State, 289 Ga. 515 (Ga. 2011) (redefines fatal variance materiality inquiry)
- Roscoe v. State, 288 Ga. 775 (Ga. 2011) (variance test—notice and protection against surprise)
- Turner v. State, 231 Ga. App. 747 (Ga. App. 1998) (distinguishes perform/submit in oral-sodomy context)
- Carolina v. State, 276 Ga. App. 298 (Ga. App. 2005) (explains broad vs. narrow application of terms in indictments)
- Day v. State, 193 Ga. App. 179 (Ga. App. 1989) (statutory interpretation of child-molestation elements)
- Edwards v. State, 253 Ga. App. 479 (Ga. App. 2002) (statutory interpretation; acts to/with a child not a difference)
- Buice v. State, 239 Ga. App. 52 (Ga. App. 1999) (pattern charge considerations; error not reversible per se)
- Damerow v. State, 310 Ga. App. 530 (Ga. App. 2011) (abbreviated credibility charge not reversible without proper request)
- Giles v. State, 113 Ga. App. 629 (Ga. App. 1966) (historical stance on credibility instructions)
- Benton v. State, 185 Ga. 254 (Ga. 1937) (earlier precedent on credibility instructions)