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He appeals the denial of his motion for new trial, arguing that (1) the evidence was insufficient to sustain his convictions for aggravated sexual battery, rape, and incest; (2) the statute of limitation had run on the aggravated sexual battery and incest counts; (3) a fatal variance existed between the dates charged in the indictment and the evidence adduced at trial; (4) the trial court erred in instructing the jury on the elements of rape; (5) and that he received ineffective assistance of counsel. Because Georgia's incest statute specifically refers to a brother and sister of the half blood, it necessarily excludes other, unmentioned half-blood relationships. Where, as here, the State alleges a certain range of dates in an indictment and does not specifically allege that those dates are material, the State is not restricted at trial to proving that the crimes occurred within that range of dates.
Because Gordon's relationship to the victim did not fall within the ambit of the incest statute, we reverse his conviction for incest and remand the case for resentencing. made outcry to her aunt and later to her mother, who called the police. testified that Gordon “would finger me in my vagina.” (Emphasis supplied.) A police investigator who interviewed T. testified that she told him Gordon “penetrated her vaginal area with his fingers” and “took his right hand and placed his index and middle finger into her vaginal area and started to rub inside her vagina.” The evidence was sufficient.(b) Rape. S., the State was required to show that he had carnal knowledge of her forcibly and against her will. Gordon does not dispute that the State proved force and lack of consent. In light of the testimony outlined above, a rational jury could find that the evidence was sufficient to show that Gordon penetrated T. Gordon argues that the evidence is insufficient because Georgia's incest statute does not prohibit sexual intercourse between a “step-uncle” and niece, and thus, that the State failed to prove the existence of a relationship proscribed by OCGA § 16–6–22. And, if there is a variation between the date alleged and the date proved at trial, the variance does not entitle a defendant to a new trial unless it prejudiced the defense.(Citations omitted.) Adams v.
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