Brown v. State, 77750
| Decision Date | 27 February 1989 |
| Docket Number | No. 77750,77750 |
| Parties | BROWN v. The STATE. |
| Court | Georgia Court of Appeals |
David C. Jones, Jr., Homer, for appellant.
Timothy G. Madison, Dist. Atty., T. David Motes, Asst. Dist. Atty., for appellee.
A jury convicted appellant of incest, rape, and cruelty to children. The trial court entered judgment on the three counts, all of which arose out of the same incident. On appellant's motion for new trial, the trial court ruled that the rape count merged with the one for incest, and so it vacated the verdict and set aside the sentence imposed for incest. This appeal is from the denial of a new trial as to the judgment entered on the rape and cruelty to children counts. We find that appellant has enumerated a reversible error, and we reverse the judgment of conviction.
1. Appellant claims that the trial court erred in denying his motion for a continuance based on surprise with regard to the State's intention to prove that appellant committed the crimes in question within four years of the date of the indictment, rather than on June 15, 1987, the specific date alleged in the indictment. Having reviewed the record, we agree with appellant's position. Appellant based his alibi defense on the specific date given in the indictment, and at trial produced witnesses to support his denial of presence at the scene of the alleged crimes on the date in question. After he had presented virtually all of his evidence, the State, on cross-examination, began questioning appellant about where he had been on other Mondays in June. Appellant did offer alibis for the other dates, but because he had relied on the specific date given in the indictment as being the one that the prosecutors were going to use, he did not have witnesses at trial to corroborate his testimony about the other dates. Appellant's counsel objected to the line of questioning and moved for a continuance of the trial based on surprise. In arguing the motion, the State's attorney admitted that it did not intend to prove the particular date, but only that it happened During the State's case on rebuttal, one of the State's witnesses testified that the victim told him the rape occurred on a Monday, five to six weeks prior to the 19th of July, and that he picked June 15 as an "arbitrary date" because it was five weeks prior to the 19th. He also said that they put "on or about June 15th" in the warrant because they were not positive that it occurred on that date. The indictment did not contain the "on or about" language, and there is no other indication that appellant was put on notice before the time of trial that the time period in question was going to be anything other than June 15.
Under the circumstances, the trial court erred in denying appellant's motion for continuance. " " Riles v. State, 155 Ga.App. 586, 271 S.E.2d 718 (1980). See also Caldwell v. State, 139 Ga.App. 279, 228 S.E.2d 219 (1976). While it is true that "[w]here the date alleged in the indictment is not a material element of the offense, the [S]tate may prove the offense as of any date within the statute of limitation," appellant's reliance on an alibi defense for the time alleged in the indictment entitled him to a continuance once he learned at trial that the State did not intend to prove the date alleged in the indictment. Arnold v. State, 167 Ga.App. 720(1, 2), 307 S.E.2d 526 (1983). We reverse the conviction and remand the case for new trial.
2. Appellant contends that he had proof that the alleged victim had falsely accused others of rape, and that the trial court misapplied the...
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