Bowman v. StateBowman v. State
- Reporters:
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- Before:
- Beasley
Randall Lee Bowman was indicted on charges of child molestation (
At trial, the 13-year-old victim testified that in the early hours of June 28, 1995, Bowman entered her bedroom through the window without authority. He asked the child if he could suck her breasts, if he could have sexual intercourse with her, and if he could perform oral sex on her. He showed her a condom and asked if she would put it on his penis. He lay down on her bed and exposed his penis to her. She wеnt and told her mother, who testified that when she arrived at the child’s bedroom, she found Bowman lying on the child’s bed with his pants unzipped. After he asked her not to turn him in, she showed him the door and called police, who came and found a bent screen at the child’s bedroom window and a condom wrapper in the room on top of her teddy bear. Bowman later told the police it wаs his condom wrapper. He was convicted on both counts.
Bowman filed a motion for new trial on general grounds as to
both counts and a motion in arrest of judgment as to child molestation on the ground that the indictment was legally insufficient to charge a violation of
1. “A challеnge to the sufficiency of the substance of the indictment can be made after trial by means of a motion in arrest of judgment.”
Bramblett v. State,
239 Ga. 336, 338 (1) (236 SE2d 580) (1977). See
“A motion to arrest judgment due to a defective indictment should be granted only where the indictment is absolutely vоid. [Cit.]” Campbell v. State, 223 Ga. App. 484, 485 (3) (477 SE2d 905) (1996). “In attacking an indictment after the verdict, every presumption and inference is in favor of the verdict. [Cit.] By failing to file a demurrer before trial, [Bowman] waived his right to a perfect indictment. [Cit.]” Staples v. State, 199 Ga. App. 551 (405 SE2d 551) (1991). See Clarington v. State, 178 Ga. App. 663, 667 (6) (344 SE2d 485) (1986) (“ ‘Aftеr conviction, an indictment will be construed most strongly in favor of the State’ ”); King v. State, 103 Ga. App. 272, 275 (1) (119 SE2d 77) (1961).
Immoral or indecent acts constituting child molestation refer to “acts which offend against the public’s sense of propriety as well as to . . . acts . . . more suggestive of sexually oriented misconduct [to a child’s body] than simply assaultive in nature.”
Chapman v. State,
170 Ga. App. 779, 780 (1) (318 SE2d 213) (1984). An “act generally viewed as morally and sexually indelicate, improper and offensive” can constitute child molestation. Id. “A child’s mind may be victimized by molestation as well.”
Smith v. State,
178 Ga. App. 300, 301 (1) (342 SE2d 769) (1986). “The child molestation statute
Based on these considerations, we recently held valid a child molestation indictment “alleging that [the defendant] initiated a conversation with the child about sexual acts including fondling оf private parts, intercourse and oral sodomy.”
Vines,
supra at 781. “The sexually exploitative nature of the alleged act is not altered by the fact that it involved speech unaccompanied by other acts. Accordingly, the allegation of the conversation alone, without any further allegation of physical contact with the child or other conduct by [the defendant], was sufficient to satisfy the statutory requirement in
Bowman’s indictment accuses him of soliciting a child to engage in sexual intercourse and sodomy and of asking the child to place a condom on the defendant’s penis, which acts could offend the public’s sense of propriety, suggest sexually oriented misconduct to the child’s body, and be viewed as morally and sexually indelicate, improper and offensive. These acts, which victimize the child’s mind, are not inchoate but are in and of themselves violative of the statute. Vines, supra. Citing Wittschen v. State, 259 Ga. 448 (383 SE2d 885) (1989), Bowman claims such acts can at most constitute attempted child molestation. Wittschen, however, holds that soliciting a child on a public highway to engage in sexual misconduct may constitute attempted child molestation; it does not address whether such may also constitute child molestation.
Bowman argues that the indictment’s failure to allege that he committed the acts of solicitation with the intent to arouse or satisfy his or the child’s sexual desires is fatal. “It is an elementary rule of criminal procedure that an indictment should contain a сomplete description of the offense charged, and that there can be no conviction unless every essential element thereof is both alleged in the indictment and proved by the evidence. However, an indictment substantially in the language of the Code is sufficient in form and substance. Where the indictment alleges an offense, . . . and alleges that the act was unlawfully committed, and that it was contrary to the laws of the State, and employs language from which it must necessarily be inferred that the criminal intent existed, it is not void because it fails to expressly allege the criminal intеnt.” (Citations and punctuation omitted; emphasis in original.) Hammock v. State, 201 Ga. App. 614, 615-616 (1) (b) (411 SE2d 743) (1991). “In the context of ‘child molestation,’ the word [indecent] would alert a defendant that he or she was being charged with committing an unlawful act with a lustful intent against a child. Such an act would inherently be for someone’s sexual gratification. The only parties involved in the act of child molestation, i.e., those who could receivе gratification from the act, would be the perpetrator or the child victim. . . . [T]he language that the act was contrary to state law and its good order, peace and dignity makes сlear that the act was committed unlawfully. From the indictment as a whole, the existence of the requisite criminal intent is implicit. The indictment was not void as a matter of law.” Id. at 616. Compare Frost v. State, 200 Ga. App. 267, 268 (2) (407 SE2d 765) (1991) (indiсtment which states the defendant acted “unlawfully” sufficiently alleges intent necessary for first degree arson).
Not only does Bowman’s indictment contain the elements found sufficient in
Hammock,
Bowman cites
Smith v. Hardrick,
266 Ga. 54 (464 SE2d 198) (1995), for the proposition that the indictment must always allege specific intent where such is an element of the crime.
Hardrick
found an indictment on a charge of aggravated assault fatally defective where it alleged only that the defendant placed his hands around the victim’s neck and used his hands to apply pressure to her neck contrary to the law.
Hardrick
is distinguishable in that one could not infer the rеquired intent to murder, rape or rob from such allegations. See
The indictment satisfied the three reasons given in Frost, supra at 267-268 (2), for requiring specificity, accuracy, and completeness in an indictment.
2. In his second enumeration of error Bowman claims that the triаl court erred in denying his motion for new trial in that the evidence of mere solicitation was insufficient to support the jury’s verdict. The denial of a motion for new trial is subject to an abuse of discretion standard.
Not only was the evidence of the acts of solicitation sufficient to convict Bowman of child molestation, but the evidence that Bowman exposed his penis to the child victim was alone sufficient for a conviction. Gunter v. State, supra at 519 (3); Hathcock v. State, 214 Ga. App. 188, 189-190 (2) (447 SE2d 104) (1994); Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986). It was not error to deny a new trial.
Judgment affirmed.
McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.
Notes
Though proven at trial, Bowman’s exposing his penis to the child was not alleged in the indictment, so we do not consider this fact in determining the sufficiency of the indictment, although it is relevant to the sufficiency of the evidence issue.