Gunn v. State

A Carroll County jury found Robert Gunn guilty beyond a reasonable doubt of two counts of child molestation, OCGA § 16-6-4; and three counts of sexual battery, OCGA § 16-6-22.1 b. Following the denial of his motion for a new trial, Stone appeals, challenging the sufficiency of the evidence with regard to one count of each offense and contending that the trial court abused its discretion in admitting evidence of a similar transaction and that his trial counsel rendered ineffective assistance. For the reasons explained below, we affirm the judgment in part and vacate in part. Viewed in the light most favorable to the jury’s verdict,1 the evidence shows the following. In 2004, Gunn lived with his girlfriend, who worked with the victim’s mother. Gunn often babysat the victim, who was then 11 years old, while his girlfriend and the victim’s mother were at work. One morning, after the victim had spent the night at Gunn’s residence, Gunn crawled into bed with the victim. He rubbed the victim’s back with his hand and then touched her breast underneath her clothing. Gunn then put his hand inside the victim’s pajama pants, touched her inner thighs, and rubbed her genital area over her panties.

The State indicted Gunn in five counts, charging as follows: in Count 1, that Gunn committed child molestation “by touching the vagina of the victim with the hand of said accused”; in Count 2, that Gunn committed child molestation “by touching the breast of the victim with the hand of said accused”; in Count 3, that Gunn committed sexual battery “by intentionally making physical contact with the inner thigh of the victim . . . without her consent”; in Count 4, that Gunn committed sexual battery “by intentionally making physical contact with the genital area of the victim . . . without her consent”; and, in Count 5, that Gunn committed sexual battery “by intentionally making physical contact with the breasts of the victim . . . without her consent.” The jury found Gunn guilty beyond a reasonable doubt on all five counts, and the trial court imposed sentence on each count.