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Moon v. State

Any variance between the indictment charging the defendant with sexual exploitation of children, which alleged that he knowingly possessed and controlled a photograph depicting a minor engaged in sexually explicit conduct, and the evidence presented at trial, which showed the child pornography he possessed was in the form of digital images, was not fatal.

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Following a jury trial, Sol Jason Moon was convicted on one count of aggravated child molestation OCGA § 16-6-4 c, two counts of aggravated sexual battery OCGA § 16-6-22.2 b,1 three counts of child molestation OCGA § 16-6-4 a 1, and one count of sexual exploitation of children OCGA § 16-12-100 b 8. Moon filed a motion for new trial, which the trial court denied. On appeal, Moon contends that the evidence was insufficient to sustain his convictions as to certain counts; that a fatal variance existed between the indictment and the evidence presented at trial as to the offense of sexual exploitation of children; that his trial counsel rendered ineffective assistance; and that the trial court erred in failing to impose a split sentence on his child molestation and sexual exploitation of children convictions. We reject Moon’s arguments that the evidence was insufficient or that he is otherwise entitled to a new trial based on a fatal variance or ineffective assistance of counsel, but nonetheless agree that the trial court erred in failing to impose a split sentence as mandated by Georgia law.

Upon review of a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Jackson v. Virginia, 443 U. S. 307 99 SCt 2781, 61 LE2d 560 1979. We neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the appellant guilty of each of the charged offenses beyond a reasonable doubt. See Howard v. State, 319 Ga. App. 621, 621 737 SE2d 722 2013.

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