Burk v. State

Any error in allowing defendant's wife to testify that he possessed pornographic magazines was harmless since it was cumulative of the victim's testimony that defendant showed her pornographic materials.

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A Lumpkin County jury convicted Winston Raymond Burk of two counts of incest, OCGA § 16-6-22. Following the denial of his motion for new trial, Burk appeals, challenging the admission of his wife’s testimony that he possessed pornographic materials and contending he was denied the effective assistance of counsel. Finding no error, we affirm.

The indictment charged Burk with having sexual intercourse with his daughter on two occasions, once in April 1999 when she was 18 years old and once in the preceding four years. In its brief, the State introduced evidence that one day in late April 1999 Burk asked his daughter to join him in the basement, suggested they could be friends if they had sex, and then had sexual intercourse with her. The victim also recounted numerous previous incidents of sexual intercourse with her father. Burk’s step-daughter, as a similar transaction witness, testified that over a six year period Burk had sexual intercourse with her and engaged in acts of sodomy with her. Burk presented a defense suggesting that his wife manipulated their mentally ill daughter into making the accusations against him to gain an upper hand in their pending divorce. In support of his defense, Burke showed that his daughter had a pattern of making sexual accusations against him and other men and quickly retracting the accusations. Burke also relied on evidence that a physical examination performed the day after the alleged April 1999 incident failed to reveal the presence of semen.

Burk v. State

Any error in allowing defendant's wife to testify that he possessed pornographic magazines was harmless since it was cumulative of the victim's testimony that defendant showed her pornographic materials.

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