FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 2, 2026
In the Court of Appeals of Georgia
A26A1499. BRADLEY v. THE STATE.
HODGES, Judge.
A jury found Michael Bradley guilty of incest, rape, sodomy, aggravated
sodomy, first degree cruelty to children, and two counts of aggravated child
molestation involving his stepdaughter, L. G.1 Following the denial of his motion for
new trial, as amended, he appealed. Bradley contends that (1) the evidence was
insufficient to sustain his conviction for cruelty to children in the first degree, and that
1
The trial court sentenced Bradley on Count 1 (incest) to serve 50 years consecutive to Count 3 (aggravated sodomy); on Count 2 (rape) to serve a life sentence consecutive to Count 1; on Count 3 to serve a life sentence consecutive to Count 2; on Count 4 (aggravated child molestation) to serve a life sentence concurrent with Count 3; on Count 5 (aggravated child molestation) to serve a life sentence concurrent with Count 3; on Count 6 (first degree cruelty to children) to serve 20 years consecutive to Count 1. The trial court merged Count 7 (sodomy) with Count 3.
the trial court erred (2) in permitting the State to introduce certain expert testimony
and crime lab reports, (3) in its jury instructions, and (4) in failing to merge the
aggravated sodomy count into one of the aggravated child molestation counts. For the
reasons that follow, we affirm.
On appeal from a criminal conviction where the defendant has challenged the
sufficiency of the evidence, we view that evidence “in the light most favorable to the
verdict, and the appellant no longer enjoys the presumption of innocence.” RamirezOrtiz v. State, 361 Ga. App. 577, 579(1) (865 SE2d 206) (2021). Where the defendant
does not challenge the sufficiency of the evidence “we evaluate his several claims of
error ... in the light of the overall strength of the State’s case, and we do not present
the evidence in the light most favorable to the verdict.” Criswell v. State, 379 Ga. App.
808 (931 SE2d 249) (2026) (punctuation omitted). “The appellate court does not
reweigh evidence or resolve conflicts in testimony[.]” Ramirez-Ortiz, 361 Ga. App.
at 579(1) (punctuation omitted).
So viewed, the record shows that L. G.’s mother and Bradley began a
relationship in 2008 and later married. L. G.’s mother had four children at the time,
including L. G., and Bradley had one child. L. G.’s mother, who ran a daycare out of
2
her home, then had two more children with Bradley. In 2016, when L. G. was 12 years
old, Bradley began placing his penis on her mouth. He also placed his mouth on her
vagina, and there was other evidence of multiple occasions where sodomy occurred.
In October and November of 2016, he had sexual intercourse with her multiple times.
She testified that the sexual intercourse hurt, and that she did not want to do these
sexual acts with him, but he told her she had to “because [her] mama did it.” He
forced her to stay in her room if she refused him, and told her not to tell anyone. She
did not tell anyone because she was “scared.” Bradley also gave her what she believed
to be a birth control pill.
In May 2017, about eight months after the sexual intercourse incidents
mentioned above, L. G.’s stomach began to hurt. Unbeknownst to L. G. in that
moment, she was pregnant with Bradley’s baby. She went to her room and took pain
medication, but because she was experiencing some vaginal emissions, she began
Googling what was wrong with her. She testified that “it started hurting and then ...
I just start[ed] pushing — pushing [the baby] out because I felt it.” She called out to
her nine-year-old sister, who helped deliver the baby, and L. G. cut the umbilical cord
with scissors. L. G.’s little sister helped L. G. clean up the blood and the placenta. The
3
girls knew what to do because they had seen their mother give birth to some of their
siblings.
L. G. sent a photo of the baby girl to Bradley’s phone, and he told her not to tell
anyone. She hid the baby in the playroom, which was accessed through her bedroom.
A few days later, Bradley and L. G.’s mother came into the playroom while L. G. was
breastfeeding the baby. At first, her mother thought the baby was a doll, then realized
the child was alive when the infant’s hand moved. Bradley reminded L. G.’s mother
that he had told her L. G. was “fast” and “was having sex[,]” and he suggested the
baby’s father was a neighbor. L. G.’s mother insisted L. G. go to the hospital, and
while L. G. was waiting for the car to take her there, Bradley told her to delete all
messages and photos on her phone that were about the baby. The physician who cared
for L. G. and examined her baby testified that the baby was born at eight months’
gestation.
L. G. was afraid of losing the baby, so she lied to her mother and told her the
father of the baby was a boy who had raped her at a park. She also told this to police
in a forensic interview in June 2017. As time passed, however, the mother noticed that
4
the baby looked “exactly like” Bradley, and L. G. finally told her mother that Bradley
was the baby’s father. The mother called law enforcement, and during a second
forensic interview in September 2017, L. G. told police that Bradley had sexually
assaulted her by, among other things, putting his penis in her vagina, and that he told
her to lie about what had happened. DNA tests confirmed that Bradley was the baby’s
father; the probability of paternity was 99.999 percent.
1. Bradley argues that the evidence was insufficient to sustain his conviction for
first degree cruelty to children.2 Specifically, he argues that there was no evidence at
trial that he acted maliciously in causing his 12-year-old stepdaughter cruel and
excessive mental and physical pain. Bradley does not argue that the evidence was
insufficient to show he acted maliciously in causing L. G. to endure childbirth. We
conclude that ample evidence exists to sustain Bradley’s conviction.
OCGA § 16-5-70(b) provides: “Any person commits the offense of cruelty to
children in the first degree when such person maliciously causes a child under the age
of 18 cruel or excessive physical or mental pain.” The indictment accused Bradley of
2
He does not contest the sufficiency of the evidence as to his other convictions.
5
“maliciously ... caus[ing L. G.] ... cruel and excessive mental and physical pain by
impregnating [her and] causing her to endure childbirth[.]”
“Malice means an actual intent to cause a particular harm — in this context,
cruel or excessive physical or mental pain — or the wanton and willful doing of an act
with awareness of a plain and strong likelihood that this particular harm may result.”
Jones v. State, 301 Ga. 94, 99(2) (799 SE2d 749) (2017) (punctuation omitted and
emphasis added). “[F]or the purposes of the child cruelty statute, malice implies the
absence of all elements of justification or excuse[.]” Jonker v. State, 376 Ga. App. 344,
347(1) (918 SE2d 616) (2025). “[T]o act maliciously under the statute is to act with
the intent to cause harm or with an awareness that harm may result, not with an intent
to harm a person the defendant knows to be a minor.” Id. As our Supreme Court has
determined, “[w]ith regard to the crime of cruelty to children, criminal intent may be
inferred from conduct before, during and after the commission of the crime.” Vasquez
v. State, 306 Ga. 216, 223(1)(a) (830 SE2d 143) (2019) (punctuation omitted).
Viewed in the light most favorable to the jury’s verdict, Ramirez-Ortiz, 361 Ga.
App. at 579(1), the evidence shows that L. G. testified that she did not want to have
sex with Bradley, and that it hurt and scared her. She also testified that giving birth
6
was painful, her stomach hurt, her legs were shaking, and she was unable to walk. The
evidence further showed that she was still bleeding when she went to the hospital
several days later. While our Supreme Court has yet to conclude that “evidence of
childbirth or a pregnancy alone” is always sufficient to show physical injury, see
Daddario v. State, 307 Ga. 179, 187(2)(a) n. 6 (835 SE2d 181) (2019), it is nonetheless
clear, of course, that in some instances, appellate courts have “no trouble” concluding
“that pregnancy and childbirth resulting from non-consensual sexual conduct
constitute physical injury to the victim.” Kendrick v. State, 331 Ga. App. 682, 684 (769
SE2d 621) (2015) (punctuation omitted). Whether the physical or mental harm
sustained by a victim is cruel or excessive is, of course, for the jury’s determination.
McDaniel v. State, 360 Ga. App. 194, 202(1) (860 SE2d 806) (2021).
Here, there was sufficient evidence to sustain the jury’s finding that the 12-year-old’s fear, pain, and bleeding from pregnancy, caused by forced sex with her
stepfather, constituted cruel or excessive physical and mental pain. See Brewton v.
State, 266 Ga. 160, 160(1) (465 SE2d 668) (1996) (finding that a conviction for first
degree child cruelty requires the State to show, among other things, “that the pain was
7
cruel or excessive”). “[T]he law does not set a bright line [regarding the
determination of excessive mental or physical pain] but leaves [that] to the trier of
fact, taking into account societal norms generally accepted, whether certain behavior
inflicts ‘cruel’ or ‘excessive’ pain[.]” Fraga v. State, 371 Ga. App. 430, 435(2) (900
SE2d 737) (2024) (punctuation omitted).
As to Bradley’s malice, setting aside the issue of whether he acted with an
actual intent to cause the particular harm produced, we conclude that a rational trier
of fact could have found that his conduct in locking L. G. in her room when she
refused to have sex with him, admonishing her to tell no one, giving her what appeared
to be a birth control pill, and telling her to delete photos and messages about the baby
from her phone, at the very least authorized the jury to infer that his actions were done
wantonly and willfully with an awareness of “a plain and strong likelihood that such
harm may result.” Boles v. State, 316 Ga. 209, 216(2) (887 SE2d 304) (2023). See
Vasquez, 306 Ga. at 222(1)(a). Further, “[i]ntent is a question of fact to be determined
upon consideration of words, conduct, demeanor, motive, and all other circumstances
connected with the act for which the accused is prosecuted.” Boles, 316 Ga. at 216(2).
“[I]ntent to cause the particular harm is peculiarly a question for the jury in child
8
cruelty cases.” Fraga, 371 Ga. App. at 435(2). The trial court did not err in finding
that the evidence was sufficient to sustain Bradley’s conviction for first degree cruelty
to children.
2. Bradley next argues that the trial court erred in allowing the State to
introduce a Georgia Bureau of Investigation (“GBI”) forensic DNA analyst’s reports,
tests, and images, as well as the analyst’s related testimony regarding the testing of
DNA samples which were first extracted by a different technician. Bradley argues that
because the technician who performed the extraction did not testify at trial and was
not subject to cross examination, and because GBI analyst Nicole Norvesh was not
present at every step of the testing process, his Sixth Amendment Confrontation
Clause rights were violated. We disagree.
Bradley asserts error as to Norvesh’s testimony, and the admission of State’s
Exhibits 5-16.3 Norvesh was qualified as an expert witness without objection. Although
3
Bradley provides no record citations to the exhibits themselves. Further, the record citations he does provide do not always identify what the exhibits are. See Brittain v. State, 329 Ga. App. 689, 693(2) (766 SE2d 106) (2014) (“[T]his Court will not cull the record in search of error on behalf of a party, and if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.”) (punctuation omitted). Accord Ball v. State, 379 Ga. App. 500, 501 n. 2 (929 SE2d 845) (2026).
9
Norvesh did not handle the extraction process, she testified about how that process
worked, and she testified that she performed all of the other steps in the testing
process and confirmed the integrity of the processes. She testified, among other
things, regarding the five-step process for performing a DNA analysis, including the
initial extraction performed by the other technician, her own testing process in regards
to the DNA samples, and her own conclusions, based on her testing, that the DNA
evidence showed Bradley was the child’s father.
Bradley’s brief addresses this enumeration under the plain error standard
because he did not object at trial or did not object on the bases raised on appeal. As he
acknowledges, our review is for plain error only. Carter v. State, 315 Ga. 214, 222(3)(b)
(881 SE2d 678) (2022). Under the plain error standard, Bradley must show that the
trial court made an error that
(1) was not affirmatively waived, (2) was clear and obvious, which
generally means there must be on-point controlling authority or the
unequivocally clear words of a statute or rule that plainly establish that
the trial court erred, (3) likely affected the outcome of the trial, and (4)
seriously affected the fairness, integrity, or public reputation of judicial
proceedings.
10
Dees v. State, 322 Ga. 498, 500-01(2) (920 SE2d 626) (2025) (punctuation omitted).
Accord Gates v. State, 298 Ga. 324, 327(3) (781 SE2d 772) (2016) (applying the plain
error standard to the admission of evidence). The burden of establishing plain error
“falls squarely on the defendant[.]” Martin v. State, 361 Ga. App. 511, 517(2)(a)(ii)
(864 SE2d 693) (2021) (punctuation omitted).
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against him[.]” US
Const. Amend. VI. “The Confrontation Clause generally prohibits the admission of
out-of-court testimonial statements made by a declarant who is unavailable for
cross-examination.” Stafford v. State, 312 Ga. 811, 824(5)(b) (865 SE2d 116) (2021).
“A statement is testimonial if its primary purpose was to establish evidence that could
be used in a future prosecution.” Id.
Bradley cites to Smith v. Arizona, which provides that
[a] State may not introduce the testimonial out-of-court statements of a
forensic analyst at trial, unless she is unavailable and the defendant has
had a prior chance to cross-examine her. Neither may the State introduce
those statements through a surrogate analyst who did not participate in
their creation.
11
602 US 779, 802-03(IV) (144 SCt 1785, 219 LE2d 420) (2024) (citations omitted); id.
at 791(I)(B), 797-98(II) (finding a Confrontation Clause violation where one forensic
analyst ran tests on seized items and determined that they were particular drugs, but
where another forensic analyst provided his own “independent opinion” of the absent
analyst’s testing and of the drugs’ identity). The United States Supreme Court also
stated, however, that
we do not hold, and it is not the case, that anyone whose testimony may
be relevant in establishing the chain of custody, authenticity of the
sample, or accuracy of the testing device, must appear in person as part
of the prosecution’s case. ... [G]aps in the chain of custody normally go
to the weight of the evidence rather than its admissibility.
Melendez-Diaz v. Massachusetts, 557 US 305, 311(II) n. 1 (129 SCt 2527, 174 LE2d 314)
(2009) (citations and punctuation omitted).
In Georgia, our Supreme Court examined a similar issue in Disharoon v. State,
291 Ga. 45, 45-46 (727 SE2d 465) (2012), in which the defendant raised hearsay and
Confrontation Clause objections to the testimony of an expert witness who personally
performed DNA testing on the relevant samples, and who read the test results, but
who was not present when another technician performed one part of the testing
12
process. The Disharoon Court analyzed the issue in light of the United States Supreme
Court’s decision in Bullcoming v. New Mexico, 564 US 647, 652 (131 SCt 2705, 180
LE2d 610) (2011), which held that the “surrogate testimony” of the “scientist who
did not sign the certification or perform or observe the test reported in the
certification” violated the Confrontation Clause. Disharoon, 291 Ga. at 46-58. The
Disharoon Court noted that, “[p]rior to Bullcoming, Georgia courts consistently held
that the Confrontation Clause does not require the analyst who actually completed the
forensic testing used against a defendant to testify at trial.” 291 Ga. at 46, citing
Carolina v. State, 302 Ga. App. 40, 41-42 (690 SE2d 435) (2010) (testimony of lab
supervisor who did not perform the tests on the substance at issue was not
inadmissible hearsay that violated the Confrontation Clause). See also Herrera v. State,
288 Ga. 231, 234(4) (702 SE2d 854) (2010) (finding no Confrontation Clause violation
in admission of lab report where lab supervisor who testified did not receive and
process the sample, because lab supervisor was a toxicology expert and testified that
he had developed the lab procedures, trained the staff, and supervised employees who
conducted the tests); Dunn v. State, 292 Ga. App. 667, 671(1) (665 SE2d 377) (2008)
(admission of laboratory supervisor’s testimony and conclusions, which were based
13
on test conducted by a technician who did not testify at trial, did not violate
Confrontation Clause). The Disharoon Court ultimately found no Confrontation
Clause violation in the admission of the expert’s testimony, and it did so by
distinguishing Bullcoming. 291 Ga. at 47-48.
In Bullcoming, the defendant was arrested on charges of driving while
intoxicated. 564 US at 651. The primary evidence against him was a forensic
laboratory report certifying that his blood-alcohol concentration was above the legal
limit. Id. The analyst who performed the forensic testing and signed the certification
was not called as a witness at trial; instead, the State called another analyst who was
familiar with the laboratory’s testing procedures, but who had not participated in,
observed, or reviewed the test. Id. The United States Supreme Court held that this
“surrogate testimony” could not convey what the analyst who performed the testing
and signed the certification knew or observed about the particular test and testing
process discussed in the certification. Id. at 652. As the Disharoon Court reasoned,
pertinently,
the Bullcoming Court found it “significant” that the analyst who had
performed the tests had been placed on unpaid leave, and that the
testifying witness had no knowledge of the reason why [the analyst] had
14
been placed on unpaid leave. The Court noted that, had the analyst who
performed the tests been “on the stand, Bullcoming’s counsel could
have asked questions designed to reveal whether incompetence,
evasiveness, or dishonesty accounted for his removal from his work
station. However, without having the witness available at trial for
cross-examination, the defendant was deprived of his right to confront
this witness and explore such matters. Under these circumstances, the
“surrogate testimony” of the scientist who did not sign the certification
or perform or observe the test reported in the certification was
inadmissible, and its admission violated the defendant’s right to confront
the witness against him pursuant to the Confrontation Clause.
Disharoon, 291 Ga. at 47 (citations and punctuation omitted; emphasis added), quoting
Bullcoming, 564 US at 652, 661-62(II)(B). Unlike with the absent analyst in Bullcoming,
no facts tending to cast doubt on the work or processes of the absent expert are
mentioned in the Disharoon opinion.
Further, the Disharoon Court stated that while the Bullcoming analyst was
generally familiar with testing procedures, that analyst “had not specifically
participated in, observed, or reviewed the test on the defendant’s blood sample.” 291
Ga. at 47-48. By contrast, Disharoon found no Confrontation Clause violation because
the testifying witness exhibited a much greater level of participation than did the
15
testifying witness in Bullcoming in that she “completed every step of the test” save
one, which was handled by the absent technician. Id. at 48.
We find that in the instant case, “the level of participation in the DNA testing
by the testifying witness was significantly greater than that of the testifying witness in
Bullcoming[,]” and the question thus is controlled by our Supreme Court’s reasoning
in Disharoon. Id. Like the testifying witness in Disharoon,
[Norvesh] drafted the report, and had a substantial personal connection
to the scientific test at issue (having actually performed the vast majority
of the testing herself). Because the present case[] [does] not involve facts
and circumstances that are controlled by the United States Supreme
Court’s decision in Bullcoming, the [trial court] did not err in holding
that it was not a violation of the Confrontation Clause to allow
[Norvesh’s] testimony [and the admission of the challenged exhibits] in
th[is] case[].
Id. at 48. Accord Leger v. State, 291 Ga. 584, 592-93(5) (732 SE2d 53) (2012). “We
have said before that an expert need not testify to the validity of every step that went
into the formulation of [her] results and may base [her] opinion on data collected by
others.” White v. State, 310 Ga. App. 386, 390(2)(a) n. 8 (714 SE2d 31) (2011). It is
16
well established that “[a]n expert may base her opinions on data gathered by others.”
Watkins v. State, 285 Ga. 355, 358(2) (676 SE2d 196) (2009).
Further, under the plain error standard, “the question is only whether on-point
controlling authority makes it unequivocally clear” that the trial court erred by
admitting the unobjected-to evidence at issue. Dees, 322 Ga. at 502(2) (punctuation
omitted), citing Hill v. State, 321 Ga. 177, 181-82(2) (913 SE2d 547) (2025). Bradley
has not cited to any such on-point controlling authority. See State v. Kelley, 290 Ga.
29, 33(2)(a) (718 SE2d 232) (2011) (finding that even if an appellant satisfies the first
three prongs of the plain error test, the appellate court still retains discretion regarding
remediation of the error, “discretion which ought to be exercised only if the error
seriously affects the fairness, integrity or public reputation of judicial proceedings. ...
Satisfying all four prongs of this standard is difficult, as it should be.”) (punctuation
omitted). Bradley has not satisfied the plain error requirements.
3. Bradley raises a multi-pronged assertion of error against the trial court’s nonpattern jury instruction on the injury element of aggravated child molestation.
Although he objected to the charge in the trial court, he concedes that his attorney
objected below “on grounds not raised here.” He now argues for the first time that
17
part of the charge was an incorrect statement of law, an improper comment on the
evidence, a mandatory presumption, and not neutral. Accordingly, our review is for
plain error only. Grullon v. State, 313 Ga. 40, 44-45(2) (867 SE2d 95) (2021) (applying
plain error review to jury charges where no objection was raised or objections were
raised on different grounds on appeal than in the trial court). In determining whether
error has occurred, we consider jury instructions as a whole. Wells v. State, 323 Ga.
415, 416 (925 SE2d 551) (2026).
The trial court charged the jury generally on aggravated child molestation, as
follows:
A person commits the offense of aggravated child molestation when that
person does an immoral and indecent act to, with, or in the presence of
a child under the age of 16 years with the intent to arouse or satisfy the
sexual desires of the person or the child and the act physically injures the
child or involves an act of sodomy.
This language tracks that of OCGA § 16-6-4(a)(1), (c). The trial court also charged the
jury on the sodomy element of aggravated child molestation. Bradley does not assert
error in this regard. Rather, he contends that the trial court erred in a different portion
of the charge where the trial court charged the jury, albeit in slightly different language
18
than that requested by the State, that: “Pregnancy and childbirth resulting from
nonconsensual sexual intercourse constitutes physical injury. An underage victim’s
desire to endure pregnancy and deliver the baby is inconsequential because of the legal
incapacity to consent to intercourse.”
(a) Bradley argues that the trial court erred in giving the charge because it was
not a pattern jury instruction and no published appellate decision holds that it is an
approved jury charge. He cites to no law requiring that a nonpattern charge be
“approved” in a published opinion. Rather, “[t]he only requirement regarding jury
charges is that the charges, as given, were correct statements of the law and, as a
whole, would not mislead a jury of ordinary intelligence.” Wright v. State, 365 Ga.
App. 288, 289(1) (878 SE2d 137) (2022). See Showers v. State, 353 Ga. App. 754,
760(2)(b)(ii) (839 SE2d 245) (2020) (“It is well-established that jury instructions do
not need to track, exactly, the language of pattern jury instructions.”) (punctuation
omitted). As our Supreme Court has held, “an error is plain if it is clear or obvious
under current law. An error cannot be plain where there is no controlling authority on
point.” Ash v. State, 312 Ga. 771, 794(5)(a) (865 SE2d 150) (2021) (punctuation
omitted).
19
(b) Bradley contends the charge is an incorrect statement of law or an improper
comment on the evidence because the aggravated child molestation statute does not
define physical injury or an “act which physically injures the child[,]” and thus the
charge language is an extrajudicial interpretation of the statute or a judicial opinion on
whether a fact in issue has been proven.
First, the trial court relied upon the language in Kendrick, 331 Ga. App. at 682,
in approving the charge in the instant case. Kendrick did not address a jury charge, but
instead involved a challenge to the sufficiency of the evidence on an aggravated child
molestation charge. Id. at 682-83. In Kendrick, the indictment alleged, in part, that the
defendant committed aggravated child molestation “involving physical injury to said
child by impregnating her[,] causing said child to endure childbirth.” Id. at 683. Even
though the 13-year-old victim did not testify that she experienced pain or injury during
intercourse, id., the Court of Appeals recognized that, “[i]t is axiomatic that a
full-term pregnancy involves at least some impairment of physical condition, and
furthermore, there was evidence in this case that the victim experienced pain during
the two-day labor and delivery process.” Id. at 684. Specific to Bradley’s contention
that the aggravated child molestation statute does not define physical injury, Kendrick
20
recognized that “the term injury means any wrong or damage done to another, either
in [her] person, rights, reputation, or property, and more specifically, bodily injury
means physical pain, illness, or any impairment of physical condition.” Id.
(punctuation omitted). Kendrick then went on to conclude that the evidence of the
victim’s pain during labor and delivery were sufficient to sustain the defendant’s
conviction for aggravated child molestation. Id. Similarly, in Daddario, in which the
indictment charged the defendant “with aggravated child molestation by alleging that
he had sexual intercourse with his underage daughter, which resulted in physical
injury to his daughter related to the delivery of her child[,]” the Supreme Court found
the evidence was sufficient to show “the physical injury element of the charge.” 307
Ga. at 187(2)(a).
As a result, it is clear from both Daddario and Kendrick that evidence of physical
injury resulting from pregnancy, labor, and delivery/childbirth can satisfy the physical
injury element of the aggravated child molestation statute and is thus not an incorrect
statement of the law. See Daddario, 307 Ga. at 187(2)(b) (finding that OCGA § 16-6-4(c) is not unconstitutionally vague “regarding whether an act of child molestation
that causes a child under the age of 16 to endure childbirth can ‘physically injure’
21
her”) (punctuation omitted); Kendrick, 331 Ga. App. at 683-84 (finding evidence
sufficient to show the physical injury element of aggravated child molestation although
child “did not testify that the intercourse was physically forceful, painful, or otherwise
physically injurious” where the evidence showed “the victim experienced pain during
the two-day labor and delivery process”).
Further, the trial court’s charge was tailored to the facts alleged in the
indictment with regard to the crime of aggravated child molestation, which could be
proven in more than one way. See OCGA § 16-6-4(c) (providing that the crime may
be committed by physical injury to a child or by an act of sodomy).
It is axiomatic that, in criminal prosecutions, the court’s instructions
must be tailored to fit the charge in the indictment and the evidence
adduced at trial. This is particularly true when the offense charged may
be committed in one of several ways, but the indictment charges one
specific method. Averments in an indictment as to the specific manner
in which a crime was committed are not mere surplusage. Such
averments must be proved as laid, or the failure to prove the same will
amount to a fatal variance and a violation of the defendant’s right to due
process of law. Accordingly, the trial court’s instructions must
sufficiently limit the jury’s consideration to the allegations and elements
of the offense as charged in the indictment.
Clemens v. State, 318 Ga. App. 16, 19-20(2) (733 SE2d 67) (2012).
22
Looking at the charge as a whole, the trial court also instructed the jury that
“[t]he burden of proof rests upon the State to prove every material allegation of the
indictment and every essential element charged in the indictment beyond a reasonable
doubt. There is no burden of proof upon the defendant whatsoever, and the burden
never shifts to the defendant to introduce evidence or to prove innocence.”
Our courts have held that OCGA § 17-8-57, which prohibits judges from
expressing or intimating their opinions in criminal cases regarding what facts have or
have not been proven, “is violated only when the trial court’s instruction, considered
as a whole, assumes certain things as facts and intimates to the jury what the judge
believes the evidence to be.” Parker v. State, 276 Ga. 598, 600(5) (581 SE2d 7) (2003)
(punctuation omitted; emphasis added). “When the charge on [aggravated child
molestation] given in this case is considered in context, no reasonable juror could have
construed it as an expression of the trial court’s own opinion[.]” Id. The “charge was
adjusted to the evidence, and the trial court otherwise instructed that the jury alone
would decide whether [Bradley] was guilty[.]” Id.
(c) Next, Bradley argues that when the trial court instructed the jury that
“[p]regnancy and childbirth resulting from nonconsensual sexual intercourse
23
constitutes physical injury[,]” this amounted to an unconstitutional mandatory
presumption which shifted to him the burden of proving either that his intercourse
with L. G. was consensual or that he did not impregnate her or physically injure her
by so doing.
First, as the Supreme Court recognized in Daddario, “a person of common
intelligence would understand that an act of child molestation that results in the
pregnancy of a 14-year-old girl could, at the least, cause her to sustain physical
injury[.]” 307 Ga. at 188-89(2)(b). Here, L. G. was only 12 years old. Second, there
was no mandatory presumption because, if anything, the wording of the charge
enhanced the State’s burden, requiring it to prove that (i) the intercourse was
nonconsensual, (ii) Bradley impregnated L. G., and (iii) he injured her physically in
so doing. See generally Lanwehr v. State, 265 Ga. App. 359, 360(2) (593 SE2d 897)
(2004) (finding any error in jury instruction harmless where instruction given
increased the State’s burden of proof).
(d) Finally, Bradley argues that the charge was plain error because it was not
neutral. Although this contention is not entirely clear, Bradley appears to argue that
the charge “inappropriately highlighted” disputed facts in the case. It is probably fair
24
to say that almost anything alleged in the indictment in a case that goes to trial
involves disputed facts. In this part of the enumeration, however, Bradley cites to no
specific, factually on-point legal authority supporting his argument that the charge is
not neutral. See generally Parker, 276 Ga. at 600(5) (finding that a contested charge
on self-defense, which included the principle that no one is justified in committing an
assault only in revenge for past wrongs, was neutral and adjusted to the evidence).
Rather, he cites to a special concurrence and to statutes from foreign jurisdictions. As
this Court has determined, even persuasive authority is insufficient to demonstrate
plain error. Tucker v. State, 362 Ga. App. 489, 504(6) (869 SE2d 142) (2022). The
authority Bradley cites does not amount to the controlling authority required to
establish plain error.
Bradley has pointed to no on-point controlling authority showing clear or
obvious error in this regard. Ash, 312 Ga. at 794(5)(a). He therefore has failed to show
that the trial court plainly erred.
25
4. Bradley argues that the trial court erred in failing to merge his conviction for
aggravated sodomy (Count 3) into one of his convictions for aggravated child
molestation (Count 4).4 The trial court did not err.
“Whether offenses merge is a legal question, which we review de novo.” Regent
v. State, 299 Ga. 172, 174 (787 SE2d 217) (2016).
To determine whether one offense should be merged into another, this
Court has adopted the “required evidence” test outlined in Drinkard v.
Walker, 281 Ga. 211 (636 SE2d 530) (2006): “The applicable rule is that
where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there
are two offenses or only one is whether each provision requires proof of
a fact which the other does not.”
Horton v. State, 310 Ga. 310, 315(1)(a) (849 SE2d 382) (2020) (punctuation omitted),
quoting Drinkard, 281 Ga. at 215. “Where each offense requires an element of proof
beyond the degree of injury or culpability that the other does not, neither of the
offenses is included in the other, and the crimes do not merge under OCGA §§ 16-1-7
4
As stated in footnote 1, supra, the trial court sentenced Bradley to life in prison on Count 3, and to life in prison on Count 4 to run concurrent to Count 3.
26
(a)(1) and 16-1-6.” Metcalf v. State, 349 Ga. App. 408, 415(2)(a) (825 SE2d 909)
(2019) (punctuation omitted).
OCGA § 16-1-7 provides, in pertinent part:
(a) When the same conduct of an accused may establish the commission
of more than one crime, the accused may be prosecuted for each crime.
He may not, however, be convicted of more than one crime if:
(1) One crime is included in the other; or
(2) The crimes differ only in that one is defined to prohibit a designated
kind of conduct generally and the other to prohibit a specific instance of
such conduct.
OCGA § 16-1-6 provides:
An accused may be convicted of a crime included in a crime charged in
the indictment or accusation. A crime is so included when:
(1) It is established by proof of the same or less than all the facts or a less
culpable mental state than is required to establish the commission of the
crime charged; or
(2) It differs from the crime charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest or
a lesser kind of culpability suffices to establish its commission.
27
The following statutes address the crimes at issue here: First, “[a] person
commits the offense of sodomy when he or she performs or submits to any sexual act
involving the sex organs of one person and the mouth or anus of another.” OCGA §
16-6-2(a)(1). Second, OCGA § 16-6-2(a)(2) provides, in pertinent part: “A person
commits the offense of aggravated sodomy when he or she commits sodomy with force
and against the will of the other person[.]”
The version of OCGA § 16-6-4(a)(1) (2009) effective at the time the crimes
were committed5 provided: “A person commits the offense of child molestation when
such person: [] Does any immoral or indecent act to or in the presence of or with any
child under the age of 16 years with the intent to arouse or satisfy the sexual desires
of either the child or the person[.]” OCGA § 16-6-4(c) (2009) provided: “A person
commits the offense of aggravated child molestation when such person commits an
offense of child molestation which act physically injures the child or involves an act
of sodomy.”
5
See Widner v. State, 280 Ga. 675, 677(2) (631 SE2d 675) (2006) (“It has long been the law in this State that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission.”) (citation and punctuation omitted).
28
Count 3 of the indictment charged that Bradley committed the offense of
aggravated sodomy between October 1 and November 30, 2016, in that he:
“unlawfully and with force perform[ed] a sexual act involving [his] MALE SEX
ORGAN and the MOUTH of [L G.] against the will of the said [L. G.], by placing
accused’s PENIS into and upon the MOUTH of said [L. G.]”
Count 4 of the indictment charged that Bradley committed the offense of
aggravated child molestation between October 1 and November 30, 2016, in that he:
“did unlawfully commit an immoral and indecent act to ... and with [L. G.], a child
under the age of sixteen (16) years, by placing said accused’s MALE SEX ORGAN
into and upon the MOUTH of [L. G.], with the intent to arouse and satisfy accused’s
sexual desires; said act involving an act of sodomy[.]”
Under the Drinkard required evidence test, again, the test we determine
whether there are two offenses or one by examining “whether each provision requires
proof of a fact which the other does not. If so, then two offenses exist, and one is not
included in the other.” Womac v. State, 302 Ga. 681, 684(3) (808 SE2d 709) (2017)
(citation and punctuation omitted); Metcalf, 349 Ga. App. at 419(2)(d).
[T]he important question is not the number of acts involved, or whether
the crimes have overlapping elements, but whether, looking at the
29
evidence required to prove each crime, one of the crimes was established
by proof of the same or less than all the facts required to establish the
commission of the other crime charged.
Drinkard, 281 Ga. at 216. Here, “[e]ach crime requires proof of at least one additional
element which the other does not.” Metcalf, 349 Ga. App. at 420(2)(d) (punctuation
omitted). The Metcalf Court found that attempted aggravated child molestation and
attempted aggravated sodomy did not merge under the required evidence test because
each crime had a required element that the other did not. Id. Here, as in Metcalf,
“aggravated child molestation requires proof that [Bradley sodomized L. G.] with the
intent to arouse or satisfy” his own sexual desires or those of the child while
“aggravated sodomy does not.” Id. Aggravated child molestation also requires that
the victim be under 16 years of age, OCGA § 16-6-4(a)(1)(c), but aggravated sodomy,
as charged in this case, does not. OCGA § 16-6-2(a)(2). See Metcalf, 349 Ga. App. at
420(2)(d) (recognizing that a victim’s age can be an element of a crime). In addition,
aggravated sodomy requires proof that Bradley sodomized L. G. “with force” and
“against [her] will[,]” OCGA § 16-6-2(a)(2), while aggravated child molestation
contains no such element. It is clear that each crime required proof of an element
which the other did not. Metcalf, 349 Ga. App. at 420(2)(d).
30
Bradley specifically contends that the same act of sodomy formed the basis of
both counts, citing Dobbins v. State, 262 Ga. 161, 165(4) (415 SE2d 168) (1992), in
which the Court found that aggravated sodomy and aggravated child molestation
merged. “It is true that if only a single act of sodomy was proved during trial, the
single act would be necessary to prove the aggravated sodomy count of the indictment,
so that there is no remaining evidence upon which to base a defendant’s conviction
for an additional count of aggravated child molestation.” Hamby v. State, 358 Ga. App.
105, 108(2) (853 SE2d 874) (2021) (punctuation omitted). Dobbins is distinguishable
from the instant case however, because it specifically involved “only one act of
sodomy.” Dobbins, 262 Ga. at 165(4).
Here, when considered in the light most favorable to the verdict to determine
whether the offenses should have merged, the evidence showed multiple acts of
sodomy, perpetrated at different times, and thus constituting separate crimes. See
Donaldson v. State, 302 Ga. 671, 674(4) (808 SE2d 720) (2017) (providing, when
determining whether crimes were committed in a single instance or separately for
purposes of determining whether they should merge, that courts consider “the
evidence viewed in the light most favorable to the verdict”) (punctuation omitted).
31
Accord Rozier v. State, 365 Ga. App. 178, 183(3) (877 SE2d 855) (2022). “Typically,
the ‘same conduct’ refers to acts committed against the same victim at the same time.
If crimes ... are separated by some time interval, they do not merge.” Sillah v. State,
315 Ga. 741, 758(7) (883 SE2d 756) (2023).
The indictment in this case charged Bradley with committing these crimes over
a two-month span of time. See Jones v. State, 335 Ga. App. 591, 597(2) (782 SE2d 489)
(2016) (finding that rape and aggravated child molestation did not merge where “the
jury could have concluded from the evidence presented that there were separate
factual incidents on which to base guilty verdicts” on both counts). See also Brantley
v. State, 370 Ga. App. 757, 772-773(8) (899 SE2d 284) (2024) (finding that two counts
of child molestation did not merge for sentencing purposes where the indictment
charged defendant with committing the acts over an approximately three-year span
of time and the victim testified the abuse had occurred on several different occasions).
Although Bradley cites a pre-Drinkard case, Lewis v. State, 205 Ga. App. 29, 30 (421
SE2d 339) (1992), which found that aggravated child molestation and aggravated
sodomy occurring on “more than one occasion” merged because they arose “out of
the same described act” as charged in the indictment, Lewis is inapplicable here,
32
where there is evidence, which our Supreme Court requires us to view in the light
most favorable to the jury’s verdict when considering this type of merger question,
Donaldson, 302 Ga. at 674(4), demonstrating that Bradley perpetrated these different
crimes against L. G. on multiple, separate occasions.
Based on L. G.’s testimony and other evidence, a rational trier of fact could
have found that there were different incidents of oral sodomy which occurred on
multiple occasions in different locations, including a guest room and a bedroom. We
find no error.
Judgment affirmed. Barnes, P. J., and Markle, J., concur.
33