Cole v. State

Citation291 S.E.2d 427,162 Ga.App. 353
Decision Date13 May 1982
Docket Number63536,Nos. 63535,s. 63535
PartiesCOLE v. The STATE (two cases).
CourtUnited States Court of Appeals (Georgia)

Alan W. Jackson, Newnan, for appellants in No. 63535.

Art Mallory, Dist. Atty., LaGrange, for appellee in No. 63535.

Sidney Pope Jones, Jr., Newnan, for appellants in No. 63536.

Art Mallory, Dist. Atty., LaGrange, for appellee in No. 63536.

SHULMAN, Presiding Judge.

A jury convicted appellants of two counts of child molestation, one count involving Mrs. Cole's eleven-year-old son and the other count concerning her nine-year-old son. The state presented evidence to the effect that the boys were forced by appellant Lawson Cole (the boys' stepfather) to engage in sexual relations with their mother, appellant Mary Cole. Appellants seek reversal of their convictions on four grounds. Finding no error, we affirm the convictions.

1. In their first enumeration of error, appellants maintain that the trial court erroneously failed to grant a directed verdict of acquittal because the state failed to prove venue. We first note that neither defendant made such a motion at trial. However, even if the motion had been made, its denial would have been proper since there was sufficient evidence to show that the crimes were committed in Coweta County.

"It is well recognized in this state that slight evidence is sufficient to establish venue, where there is no conflicting evidence. [Cits.] Further, circumstantial as well as direct evidence may be used to establish venue. [Cit.] Venue is a question to be decided by the jury and its decision will not be set aside as long as there is any evidence to support it. [Cits.]" Jones v. State, 245 Ga. 592, 596, 266 S.E.2d 201. The evidence adduced at the trial of this case, though circumstantial, was sufficient, in the absence of any conflicting evidence, to establish venue in Coweta County.

None of the cases cited by appellants (Moye v. State, 65 Ga. 754; Cooper v. State, 106 Ga. 119, 32 S.E. 23; Gibson v. State, 52 Ga.App. 297(1), 183 S.E. 83; and Patterson v. State, 157 Ga.App. 233, 276 S.E.2d 900), is applicable to the present appeals inasmuch as each of the cited opinions revolves around the rule that "evidence merely identifying the location of a crime's commission as a given city without further specifying the county or state within which that city is situated does not establish venue beyond all reasonable doubt. [Cits.]" Patterson v. State, supra, p. 234, 276 S.E.2d 900. Here, there was testimony which placed Arnco in Coweta County.

2. Each count of the indictment charged appellants with "unlawfully [committing] an immoral or indecent act with [victim's name], a child under 14 years of age, with the intent to arouse or satisfy the sexual desires of either the said child or the said accused, contrary to the laws of said state ..." Appellants believe that the indictment is fatally defective because it is stated in the disjunctive, and they maintain that the trial court erred when it failed to sustain their special demurrer to the indictment on that ground.

"When a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them. [Cits.]" Vann v. State, 153 Ga.App. 710, 711, 266 S.E.2d 349. This precept, under which appellants are traveling, is not applicable to the present cases since the statute involved herein (Code Ann. § 26-2019) does not contain "disjunctively several ways or methods [in which] a crime may be committed." Compare Vann, supra; Statham v. State, 50 Ga.App. 165(2), 177 S.E. 522. The disjunctive phrases are, instead, descriptive of the offensive act. See Cragg v. State, 117 Ga.App. 133, 159 S.E.2d 717. While the better practice would be to draw indictments charging this offense in the conjunctive, the denial of the special demurrer was not error under the circumstances of this case.

3. Statements made by appellants to authorities were introduced against appellants at trial after the trial court determined that appellants had made the statements knowingly and voluntarily. Appellants now take issue with that ruling.

"The trial court concluded that [appellants] had fully and voluntarily waived [their] rights to silence and an attorney and had chosen to make a confession. We must accept those factual determinations by the trial court unless those findings are shown to be clearly erroneous [cit.], and they are not so shown. The standard the state was required to meet before the trial judge concerning the statement[s] was to show [them] voluntary by a preponderance of the evidence considering the totality of the circumstances. [Cits.] That standard was clearly met." Pierce v. State, 235 Ga. 237(3), 219 S.E.2d 158. Appellants' enumeration is without merit.

4. Finally, appellants assert that the trial court should have granted their severance motions.

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10 cases
  • Robinson v. State
    • United States
    • United States Court of Appeals (Georgia)
    • November 18, 1982
    ...160 Ga.App. 601, 602, 287 S.E.2d 603 (1982); Henderson v. State, 162 Ga.App. 320(6), 292 S.E.2d 77 (1982); see Cole v. State, 162 Ga.App. 353(4), 291 S.E.2d 427 (1982); Code Ann. § 27-2101 (now OCGA § 17-8-4); see also Murphy v. State, 246 Ga. 626(2), 273 S.E.2d 2 (1980); Montgomery v. Stat......
  • Porter v. State
    • United States
    • United States Court of Appeals (Georgia)
    • March 24, 2000
    ...was injured in every way set forth in the indictment; these details were merely descriptive of the offensive act. Cole v. State, 162 Ga.App. 353, 354(2), 291 S.E.2d 427 (1982). A person is a party to a only if he [or she]: (1) Directly commits the crime; (2) Intentionally causes some other ......
  • Cheek v. State, 67676
    • United States
    • United States Court of Appeals (Georgia)
    • March 12, 1984
    ...establish same where there is no conflicting evidence at trial. See Carter v. State, 146 Ga.App. 681, 247 S.E.2d 191; Cole v. State, 162 Ga.App. 353(1), 291 S.E.2d 427. We find no merit in the first two enumerations of error. 2. It was contended next that the sheriff had given hearsay testi......
  • Davis v. State
    • United States
    • United States Court of Appeals (Georgia)
    • November 4, 1986
    ...establish venue where there is no conflicting evidence. See Ludden v. State, 176 Ga.App. 109, 111(3), 335 S.E.2d 428; Cole v. State, 162 Ga.App. 353(1), 291 S.E.2d 427; and Jones v. State, 245 Ga. 592, 596(2), 266 S.E.2d 201. Venue is a question to be decided by the jury and its decision wi......
  • Request a trial to view additional results

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