Burton v. State, A94A0041
| Decision Date | 15 February 1994 |
| Docket Number | No. A94A0041,A94A0041 |
| Parties | BURTON v. The STATE. |
| Court | Georgia Court of Appeals |
Summer & Summer, Chandelle T. Summer, Gainesville, for appellant.
Lydia J. Sartain, Dist. Atty., Ben L. Leutwyler III, Asst. Dist. Atty., for appellee.
In a three-count indictment, the appellant, Jerry Burton, was charged with one count of aggravated child molestation and two counts of child molestation involving his natural daughter. Following a trial by jury, he was convicted of the offenses. On appeal, he asserts that the trial court erred in refusing to grant a mistrial when the victim testified concerning acts of molestation not charged in the indictment, and erred in allowing the State to introduce his custodial statement which was allegedly induced by promises made by an investigating officer. We affirm.
1. (Citations and punctuation omitted.) Moody v. State, 206 Ga.App. 387, 390(3), 425 S.E.2d 397 (1992); Garrett v. State, 188 Ga.App. 176(1), 372 S.E.2d 506 (1988).
In the case sub judice, the victim, who was 14 years old at the time of trial, testified that in early June 1992, approximately three days after she moved in with Burton, Burton began sleeping with her and fondling her breasts and vagina. The fondling continued for approximately two weeks, at which time, he began having sexual intercourse with her. Burton continued to have intercourse with the victim every day until July 20, 1992, when the victim moved from the home. The victim also testified that Burton forced her to place her mouth on his penis three or four times and he placed his mouth on her vagina on six occasions. Although the indictment alleges that the act of aggravated child molestation occurred when Burton "placed his mouth upon the genitalia of [the victim]," the other acts of sodomy were properly admitted as a part of the res gestae of Burton's continued sexual exploitation of the victim. Accordingly, the admission of this evidence was not cause for a mistrial. Garrett, supra.
While Burton asserts that he was surprised by the introduction at trial of evidence of the acts of sodomy committed on the victim and had no notice of these allegations, in his recorded statement given to police after his arrest, he admitted committing these acts on six occasions. Moreover, we reject Burton's argument that a fatal variance occurred inasmuch as the evidence produced at trial was sufficient to authorize a rational trier of fact to conclude that Burton committed the offense of aggravated child molestation as averred in the indictment. Cf. Legg v. State, 207 Ga.App. 399(4), 428 S.E.2d 87 (1993).
Burton further attempts to expand and bolster his enumeration by arguing in his brief that the trial court improperly charged the jury that either act of sodomy alleged by the victim could support a conviction of the offense. However, this court has repeatedly held that "on appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration." (Citations and punctuation omitted.) Cantrell v. State, 210 Ga.App. 218, 222(3), 435 S.E.2d 737 (1993); Bridges v. State, 205 Ga.App. 664, 665(1), 423 S.E.2d 293 (1992).
2. We next address Burton's contention that his inculpatory custodial statement was induced by alleged promises made by the investigating officer.
At the Jackson v. Denno hearing, the investigating officer discussed his recorded custodial interview with Burton. During the hearing, the officer denied making any promises to the accused to induce the incriminating statement. The officer testified that Burton was advised of his Miranda rights before questioning, and Burton subsequently signed a rights waiver form which delineated his rights. Those rights were read aloud to Burton by the officer, and Burton appeared to understand all of these communications. The waiver form further contained the following statement: "I have not been promised anything."
The investigating officer did indicate during the interview that Burton could receive substance abuse counseling if the acts of molestation occurred as a result of an alcohol dependency problem. He also informed Burton that he would not make the information discussed during the interview public knowledge, and that the court...
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