Corsini v. State
Decision Date | 02 June 1999 |
Docket Number | No. A99A0037.,A99A0037. |
Citation | 238 Ga. App. 383,519 S.E.2d 39 |
Parties | CORSINI v. The STATE. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Wolfe & Steel, Larry D. Wolfe, Atlanta, Kristine E. Waddy, for appellant.
Jerry Rylee, Solicitor, Larry A. Baldwin II, Assistant Solicitor, for appellee.
Following a bench trial, Virginia Corsini was convicted of telephone harassment. She appeals, contending (1) that there was insufficient evidence to support her conviction; (2) that the trial court impermissibly convicted her because she did not testify at trial; (3) that the trial court erroneously limited her cross-examination of a witness; and (4) that the accusation was fatally defective. Because each of these contentions is without merit, we affirm.
1. In a bench trial, the trial court sits as the trier of fact. As such, it determines the credibility of the witnesses and may accept or reject any part of a witness's testimony, even in the absence of contradictory testimony. Bettis v. State, 228 Ga.App. 120, 121, 491 S.E.2d 155 (1997). On appeal, we view the evidence in the light most favorable to the trial court's judgment and will not set aside the trial court's factual findings unless they are clearly erroneous. A trial court's factual findings are not clearly erroneous if there is any evidence to support them. This is true even where such findings are based upon circumstantial evidence and the reasonable inferences which flow therefrom. Id.
Viewed in this light, the evidence at trial showed the following. On May 18, 1997, Clarissa Sullivan was at Judy Alexander's house when the telephone rang. Sullivan answered the telephone because Alexander was in the shower. An older-sounding voice on the other end of the phone asked to speak to Alexander. Sullivan asked the caller if she was Alexander's mother, and the caller said she was. When Sullivan said, "I've heard wonderful things about you," the caller laughed and asked to speak with Alexander. Sullivan then handed the phone to Alexander. Alexander testified that the voice on the other end of the phone was not in fact her mother's, but was Corsini's. Alexander recognized Corsini's voice because they had lived together for 15 years. They had been lovers, but had broken up four months earlier and were not on speaking terms. Alexander dropped the phone without saying a word. Sullivan testified that she picked up the phone and said, "Jennie?" (which was the name Corsini went by), and that the caller said "yes." Sullivan then asked, "Why do you continue playing these games?" Sullivan testified that the caller then said, "I will blow you up in the house along with Judy." Sullivan had never met Corsini and did not recognize the caller's voice. However, she testified that the voice that made the threat was the same voice she had heard when she first answered the phone.
Corsini contends that because the threat was made to Sullivan, who did not recognize the caller's voice, there is no evidence that Corsini was the one who made the threat. However, Alexander positively testified that she recognized Corsini's voice immediately before she dropped the phone, at which point Sullivan picked up the phone and heard the threat. Moreover, Sullivan testified that the caller responded affirmatively when Sullivan asked if it were Jennie. Clearly, there was sufficient evidence to support the trial court's conclusion that it was Corsini who made the call and the threat. See Hall v. State, 226 Ga.App. 380, 381-382, 487 S.E.2d 41 (1997) ( ); Brown v. State, 266 Ga. 723, 725(3), 470 S.E.2d 652 (1996) ( ). Compare Constantino v. State, 243 Ga. 595, 599(3), 255 S.E.2d 710 (1979) ( ).
Corsini's counsel moved for a mistrial, stating that "it appears that the Court is making its ruling largely on the fact that my client didn't testify." The judge denied the motion, stating that "I did not have a reasonable doubt and that's why I found [Corsini] guilty."
Although the trial judge did comment on Corsini's failure to testify, he did so in the context of explaining that there was no evidence contradicting the State's evidence that Corsini was the caller. The judge's comment indicates that he convicted Corsini not because of her refusal to testify, but because the State's evidence was essentially uncontradicted. See generally Stewart v. State, 165 Ga.App. 62, 64(5), 299 S.E.2d 134 (1983) ( ); Kerr v. State, 193 Ga.App. 165, 166(1), 387 S.E.2d 355 (1989) ( ). Since this was a bench trial, there was no jury that could have been influenced by the judge's comments. "[I]n a bench trial it is presumed that the judge, as the trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible." Hopkins v. State, 209 Ga.App. 337, 339, 433 S.E.2d 423 (1993). Indeed, the judge expressly stated that he was aware that a defendant's silence is not to be used against her, and that he had no reasonable doubt about Corsini's guilt. Because it does not appear that the trial judge improperly considered Corsini's failure to testify, this enumeration is without merit. See Moreland v. State, 154 Ga.App. 375, 376-377(2), 268 S.E.2d 425 (1980) ( ).
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