Whorton v. State

Citations: 318 Ga. App. 885; 735 S.E.2d 7; 2012 Fulton County D. Rep. 3932; 2012 Ga. App. LEXIS 1018Docket: A12A0838

Court: Court of Appeals of Georgia; November 29, 2012; Georgia; State Appellate Court

Lead Opinion SummaryLead Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

Jackie Whorton was convicted of multiple offenses, including enticing a child for indecent purposes, incest, child molestation, aggravated child molestation, and cruelty to children. He appeals the denial of his motion for a new trial, arguing that the trial court incorrectly failed to provide a limiting instruction on similar transaction evidence, denied his request for a continuance, and that he received ineffective assistance of counsel. He also contests the sufficiency of the evidence.

The appellate court affirms the conviction, emphasizing that it reviews evidence favorably to the jury's verdict and does not presume innocence for Whorton. The evidence presented during the trial reveals that Whorton lived with his daughter and her children to care for them while their mother worked. During trips to Georgia, he engaged in sexual acts with his 12-year-old granddaughter, G. G., including forcing her to watch pornographic videos and sexually assaulting her multiple times. G. G. recounted instances of inappropriate touching, fondling, and being coerced into sexual acts. After claiming she might be pregnant, Whorton reacted violently, hitting and kicking her. Despite this, he continued to visit her at night, leading G. G. to eventually confide in her mother about the abuse, resulting in the family being removed from the home. G. G. underwent a forensic examination following her disclosures.

Dr. Debbie West testified that G. G. had two crescent-shaped scars on her hymen, indicating penetration consistent with sexual abuse. Whorton challenged the sufficiency of evidence for his conviction on Count 1, which charged him with enticing G. G. for indecent purposes by taking her into a bedroom. He argued that since they lived in the same home, there was no evidence of enticement. Under OCGA § 16-6-5 (a), enticing a child for indecent purposes involves soliciting or taking a child under 16 for such acts, and the statute requires asportation, which can be satisfied by physical force, enticement, or persuasion. The court distinguished Whorton’s case from Henderson v. State, where no evidence of taking was found; here, evidence indicated Whorton called G. G. into his bedroom to view pornography. The court upheld the conviction on Count 1 due to sufficient evidence. 

Whorton also contested the overall sufficiency of evidence for his other convictions, citing inconsistencies in G. G.'s testimony, such as her inability to recall specific acts, her mother’s failure to respond during an incident, and discrepancies in her drawings of genitalia. He argued these inconsistencies undermined her credibility and required the reversal of his convictions due to insufficient evidence. The legal standard for assessing the sufficiency of evidence requires viewing it in the light most favorable to the prosecution, allowing a rational jury to find the essential elements of the crime beyond a reasonable doubt. The court reiterated that credibility assessments and evidentiary conflicts are within the jury's purview, not the court's.

A jury has the authority to assess the credibility of witness testimony, and as long as there is competent evidence supporting each necessary fact for the State’s case, the jury's verdict is upheld. In this instance, the victim's testimony was deemed sufficient to establish the elements of child molestation, despite the absence of eyewitness accounts since the acts occurred when Whorton was alone with the victim, G. G. The victim's uncorroborated testimony, along with expert medical evidence indicating scarring on her hymen consistent with sexual abuse, supported Whorton’s convictions.

Furthermore, Whorton challenged the trial court's denial of his motion for a continuance. It is established that such a denial will not be reversed unless there is a manifest abuse of discretion, and the defendant must demonstrate harm from the denial. Whorton’s new trial counsel was appointed 40 days before the trial, after his previous attorney withdrew due to facing charges of child molestation. Although the trial counsel sought a continuance, the court denied it. In the week leading up to the trial, the counsel indicated readiness to proceed but later filed a continuance request, citing difficulties in securing an expert witness for his defense regarding his diabetes-related complications. The trial court again denied this motion.

The court emphasized that a short preparation time alone does not constitute a denial of rights, especially in a straightforward case without complex defenses. Whorton failed to establish that a continuance would have benefited him, as the case was simple with no DNA evidence presented and the victim serving as the sole eyewitness. Whorton successfully introduced expert testimony about his medical condition affecting his sexual function, which included insights from Dr. Candi Nobles-James, who noted his low testosterone levels and impotence, and a family physician who recalled discussions about Whorton’s erectile dysfunction, despite lacking formal records.

Whorton’s trial counsel failed to prove harm from the denial of a continuance, as he did not specify what additional evidence or witnesses he could have presented with more preparation time. Counsel's vague mention of seeking an expert on impotence did not satisfy the requirement for demonstrating harm. Consequently, the trial court’s denial of the continuance was upheld. Whorton’s argument regarding the lack of a limiting jury instruction on prior acts of sexual molestation was also rejected since no record of the jury charge exists, and it was presumed that the trial court acted correctly. Additionally, Whorton’s ineffective assistance claim regarding this issue was waived because it was not raised during the motion for a new trial.

To succeed on an ineffective assistance claim, a defendant must show both deficient performance by counsel and resulting prejudice affecting the trial's outcome, overcoming the presumption that counsel's conduct was reasonable. Whorton contended his counsel was ineffective for not moving for a directed verdict on one charge, but sufficient evidence was presented for the charge to survive such a motion. Thus, counsel's decision was not deemed ineffective. 

Whorton also argued that failing to recall the victim, G. G., for further questioning was ineffective assistance. However, counsel explained her decision was strategic, based on G. G.’s behavior and potential violations of the Rape Shield Statute. Without a clear explanation of how recalling G. G. would have altered the trial's outcome, this claim was also unsuccessful. Overall, strategic decisions made during trial do not typically constitute ineffective assistance of counsel.

Whorton claims ineffective assistance of counsel based on three main arguments. First, he asserts that his counsel failed to argue the equal access defense regarding pornographic material found on his computer. This claim is deemed meritless since Whorton was not charged with or convicted of possession of pornography, making the equal access doctrine inapplicable. Second, Whorton contends his counsel was ineffective for not objecting to jury instructions related to flight, specifically comments made by the prosecutor implying Whorton intended to flee to evade charges. However, since the trial court did not instruct the jury on flight, and such arguments are permissible, this claim of ineffective assistance is rejected. Lastly, Whorton argues his counsel failed to object to improper bolstering and opinion testimony from the State's witnesses, but this argument is waived as it was not presented in his motion for new trial.

Judgment has been affirmed, with concurrence from Judges Miller and Branch. Whorton was acquitted of three counts of first-degree cruelty to children. The document references various sections of the Official Code of Georgia Annotated (OCGA), specifically sections related to child exploitation and evidence standards. The court upheld that a single witness's testimony is sufficient to establish a fact, and the denial of a motion for continuance was affirmed due to the defense counsel's prior knowledge of the trial date. The court emphasized that the review of continuance motions is based on evidence at the time of the ruling, not subsequent hearings. It distinguished between "similar transactions" and "prior difficulties," indicating that the latter involves connected acts arising from the same relationship. Additionally, the trial was noted to have occurred before the effective date of a relevant statute, which negated the need for a plain error analysis. The court ruled that trial counsel was not ineffective for not moving for a directed verdict, as the evidence was adequate to withstand such a motion. Lastly, it stated that while the prosecution may present evidence of flight, the trial court should not instruct the jury on flight in a criminal case.