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Calhoun v. State

The trial court did not abuse its discretion in denying the defendant's motion for a continuance after the State announced on the eve of his trial for sexual crimes against children that it would be admitting the results of a seminal fluid test the following day.

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A jury convicted James M. Calhoun of two counts of aggravated child molestation OCGA § 16-6-4 c, two counts of child molestation OCGA § 16-6-4 a, and one count each of aggravated sexual battery OCGA § 16-6-22.2, false imprisonment OCGA § 16-5-41, and enticing a child for indecent purposes OCGA § 16-6-5.1 On appeal from the trial court’s denial of his motion for new trial, he argues that the trial court erred in denying his request for a continuance after the State proffered new evidence. He also contends that he received ineffective assistance of counsel. He does not challenge the sufficiency of the evidence. For the reasons that follow, we affirm.

On appeal, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 99 SCt 2781, 61 LE2d 560 1979. Calhoun, who was about 60 years old, committed sexual crimes against two neighbor girls, E. M., who was seven, and G. B., who was twelve. Calhoun gave the girls candy and treats, and sometimes watched them while their mother was out. The girls’ mother believed that he was “like a grandfather” to her children. G. B. made an outcry to her mother after an incident that occurred on Halloween, 2011, when Calhoun made G. B. give him oral sex and she threw up on her Halloween costume. G. B.’s mother called the police. A chemical test of the vomit on G. B.’s Halloween costume revealed the presence of seminal fluid, but did not show spermatozoa that would be eligible for DNA testing.

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