                               SECOND DIVISION
                                 MILLER, P. J.,
                            DOYLE, P. J., and REESE, J.

                      NOTICE: Motions for reconsideration must be
                      physically received in our clerk’s office within ten
                      days of the date of decision to be deemed timely filed.
                                  http://www.gaappeals.us/rules


                                                                      January 11, 2018




In the Court of Appeals of Georgia
 A17A1877. KING v. THE STATE.

       MILLER, Presiding Judge.

       Robert King, III, was convicted by a jury of incest (OCGA § 16-6-22) of his

niece, M. O.1 He moved for a new trial, alleging, relevant to this appeal, that the

evidence was insufficient to support the verdict and also asserting the general grounds

that the trial court should have acted in its discretion as the “thirteenth juror” to grant

a new trial. The trial court denied the motion, and this appeal followed. We affirm

King’s conviction because the evidence was sufficient to establish the elements of the

crime of incest and the necessary consanguinity between him and the victim.

However, after a thorough review of the record, we must vacate and remand the trial

court’s order denying the motion for new trial because the trial court failed to

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           King was acquitted of rape.
consider the general grounds, including its authority to sit as a “thirteenth juror,” that

King raised in his written motion for new trial and at the hearing on that motion.

      “On appeal from a criminal conviction, a defendant no longer enjoys the

presumption of innocence, and the evidence is viewed in the light most favorable to

the guilty verdict.” (Citations and footnote omitted.) Wynn v. State, 322 Ga. App. 66

(744 SE2d 64) (2013).

      So viewed, the record shows that in October 2012, the then-17-year-old victim

was living with her foster family in Claxton, Georgia, when she got into an argument

with her foster father and ran away from home. The victim was unable to contact her

biological parents, so she called King, who was her biological father’s brother. King

agreed to meet her and her one-year-old daughter at a drugstore that evening.

      After King picked up the victim and her daughter, they got something to eat,

and King purchased some diapers for the baby and undergarments for the victim.

King then drove to his home, where he and the victim watched television for a few

minutes before the victim decided to take a shower. When she was finished bathing,

the victim returned to the living room to watch television again. The victim grew tired

and asked King where she should sleep. King responded that she could sleep in the



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bedroom and he would sleep on the couch. The victim and her daughter went into the

bedroom to go to sleep.

      Shortly after she went to bed, the victim heard King enter the bedroom and sit

on the edge of the bed. He began to rub her back, telling her that he wanted to “take

care” of her and that “everything’s going to be okay.” The victim told King to leave

her alone, and he left the bedroom.

      A little while later, however, King returned and lay down on the bed. Using one

hand, King held the victim’s hands together while he used the other arm to remove

the victim’s underwear. He then climbed on top of her and penetrated her vagina with

his penis. The victim repeatedly told him to stop, but King continued, saying “I still

love you. I’m still your uncle.” When the victim’s baby started crying, the victim was

able to free herself. As King left the room, he told the victim, “You’re still my niece.”

      After the victim heard King leave the house, she found a phone and tried to

contact her mother and father. She finally sent a text message to her father, telling

him to come get her and that her uncle had raped her.

      The victim’s father contacted his sister, who drove over to King’s home and

took the victim to another relative’s home. The next morning, the victim went to the

hospital.

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       The Georgia Bureau of Investigation (“GBI”) investigated the allegations,

collected the rape kit from the hospital, and conducted DNA swabs of the victim and

King. In an interview with the GBI, King admitted that the victim’s father was his

brother, and he referred to the victim as his niece. The DNA swab taken from the rape

kit showed male DNA consistent with King or another paternal relative of the victim.

An examination of the underwear the victim was wearing at the time of the incident

showed the presence of seminal fluid, but no sperm.

       1. In his first enumeration of error, King argues that the evidence was

insufficient to convict him because (a) the State failed to prove that the victim was

related to him by blood; and (b) the victim recanted her story and her conduct

immediately after the alleged incident was inconsistent with her claims. We disagree.

       Under OCGA § 16-6-22 (a), “[a] person commits the offense of incest when

such person engages in sexual intercourse . . . with a person whom he or she knows

he or she is related to either by blood or by marriage as follows: . . . [u]ncle and niece

or nephew of the whole blood or of the half blood.” At issue here is whether the

evidence, viewed in the light most favorable to the jury’s verdict, established the

requisite familial relationship between the defendant and the victim. We conclude that

it does.

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      At trial, the victim’s biological mother testified as to the identity of the victim’s

biological father, and it is undisputed that the person she identified as the victim’s

father is King’s brother. Moreover, the victim testified that King referred to her as his

niece while committing the crime, and King’s own statement to GBI investigators

acknowledged the blood relationship between himself and the victim. This evidence

was sufficient for a jury to conclude that the victim was King’s niece, and that King

knew of the relationship. Wynn, supra, 322 Ga. App. at 68 (2). Given this evidence,

it was not necessary for the State to provide DNA evidence to establish

consanguinity. Id. Thus, there was sufficient evidence from which the jury could

conclude that King and the victim were related by blood and that King knew of his

blood relationship with the victim at the time of the crime, as is required to support

King’s conviction for incest.

      Moreover, although the victim recanted her accusation against King in a

written statement several years after she made the accusation, she explained at trial

that her father had asked her to write that recantation. She then reaffirmed her original

accusation. Viewing the evidence and testimony in the light most favorable to the

verdict, the evidence was sufficient to support King’s conviction.



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      2. In his second enumeration of error, King argues that the trial court should

have exercised its discretion and acted as the “thirteenth juror” to grant his motion for

new trial given the lack of evidence. We conclude that the trial court failed to

properly consider this claim.

      “Even when the evidence is legally sufficient to sustain a conviction, a trial

judge may grant a new trial if the verdict of the jury is . . . decidedly and strongly

against the weight of the evidence.” White v. State, 293 Ga. 523, 524 (2) (753 SE2d

115) (2013); OCGA § 5–5–21.

      OCGA § 5-5-21 specifically empowers trial courts with the authority to
      weigh the evidence. It provides that a trial judge, in the exercise of a
      sound discretion, may grant a new trial “in cases where the verdict may
      be decidedly and strongly against the weight of the evidence even
      though there may appear to be some slight evidence in favor of the
      finding.” On a motion for new trial alleging this ground, the court sits
      as a “thirteenth juror.” The motion is addressed to the discretion of the
      court, which should be exercised with caution, and the power to grant
      a new trial on this ground should be invoked only in exceptional cases
      in which the evidence preponderates heavily against the verdict.


(Citations, punctuation, and emphasis omitted.) Rutland v. State, 296 Ga. App. 471,

476 (3) (675 SE2d 506) (2009). “In exercising that discretion, the trial judge must

consider some of the things that [he] cannot when assessing the legal sufficiency of

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the evidence, including any conflicts in the evidence, the credibility of witnesses, and

the weight of the evidence.” White, supra, 293 Ga. at 524 (2). Importantly, when the

trial court’s order cites to the wrong standard, simply repeats its conclusion that the

evidence was sufficient to sustain the conviction, and does not indicate that it

performed its duty to weigh the evidence, the trial court has failed to exercise its

discretion, and we must remand the case to the trial court. See id. at 524-525 (2).

Compare Butts v. State, 297 Ga. 766, 771-772 (3) (778 SE2d 205) (2015) (court will

presume the trial court exercised its discretion even though the order denying the

motion for new trial was silent as to the issue where the general grounds were argued

before the trial court).

       The State contends that King failed to request that the trial court act as the

13th juror, and, thus there is no merit to his claim of error. King, however, sufficiently

raised the issue in his motion for new trial and at the hearing by explicitly arguing

that the court should exercise its discretion to grant a new trial and addressing

credibility of the witness as a basis for the court to grant the motion. White, supra,

293 Ga. at 524-525 (2).

      In this case, the trial court erroneously stated in its order that King only argued

insufficiency of the evidence at the hearing. As a result of this inaccurate

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characterization of King’s argument, the trial court addressed only the sufficiency

issue and cited the appellate standard of review for sufficiency claims. See Rutland,

supra, 296 Ga. App. at 475-476 (3). We recognize that, where an order is merely

silent as to whether the court was exercising its discretion in deciding the motion, we

must presume that the court considered its discretion in approving the verdict. Butts,

supra, 297 Ga. at 771-772 (3); see also Murdock v. State, 299 Ga. 177, 178 (2) (787

SE2d 184) (2016) (“the trial court need not explicitly speak of its discretion with

respect to the general grounds, and unless the record shows otherwise, we must

presume that the trial court understood the nature of its discretion and exercised it.”)

(emphasis supplied). Here, however, the record is not silent because the trial court

expressly and incorrectly stated that King had not advanced this issue at the hearing.

Thus, the trial court explicitly conveyed that it did not exercise its discretion as the

thirteenth juror to uphold the verdict, and no presumption attaches. See Murdock,

supra, 299 Ga. at 178 (2).

      On this record, we are constrained to conclude that the trial court failed to

properly consider King’s claim that it should exercise its discretion, and we must

remand the case on this basis. See Choisnet v. State, 292 Ga. 860 (742 SE2d 476)

(2013) (vacating and remanding where trial court applied the wrong standard and

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considered only the sufficiency of the evidence despite defendant’s argument that the

verdict was contrary to the evidence and strongly against the weight of the evidence).

Accordingly, we vacate the trial court’s order denying the motion for new trial, and

remand the case solely for the trial court to consider its discretion to sit as the

“thirteenth juror,” consistent with this opinion.

      Judgment affirmed in part, vacated in part, and case remanded. Doyle, P. J.,

and Reese, J., concur.




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