Hernandez v. State

A DeKalb County jury convicted Jose Hernandez of two counts of aggravated child molestation OCGA § 16-6-4 c and three counts of child molestation OCGA § 16-6-4 a 1. Hernandez appeals, contending that the trial court erred in denying his motion for a directed verdict of acquittal since i there was a fatal variance between the aggravated child molestation allegations in the indictment and the evidence presented at trial and ii the State failed to prove venue beyond a reasonable doubt. We discern no error and affirm.

Viewed in the light most favorable to the jury’s verdict,1 the trial evidence shows that Hernandez was the live-in boyfriend of the victim’s mother, and the victim referred to Hernandez as her step dad. The victim testified that when she was seven years old, Hernandez began molesting her almost daily while her mother was away at work. In describing the molestation incidents, the victim described that Hernandez removed her clothes and touched her “everywhere,” including her chest and her “lower private parts” with his hands and his mouth. She stated that when she tried to resist, Hernandez hit her and screamed at her. The molestation continued over the course of a year until the victim moved to Mexico.