Dennis v. State

• Decision Date: 10 March 1981
• Docket Number: No. 61562,61562
• Citation: 279 S.E.2d 275,158 Ga.App. 142
• Parties: DENNIS v. The STATE.
• Court: Georgia Court of Appeals

Page 275

279 S.E.2d 275

158 Ga.App. 142

DENNIS v. The STATE.

No. 61562.

Court of Appeals of Georgia.

March 10, 1981.

Rehearing Denied March 30, 1981.

Certiorari Denied May 19, 1981.

H. B. Edwards III, Valdosta, for appellant.

H. Lamar Cole, Dist. Atty., Richard Shelton, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted and convicted of the offenses of enticing a child for indecent purposes and aggravated sodomy. Defendant appeals. Held :

1. A police officer testified that the victim had shown him the place where the incident had occurred. The police officer was shown the store to which defendant had taken the victim and the vicinity in which defendant "took him off in the woods at." The officer testified that all of these locations were in Lowndes County. The testimony was sufficient to establish venue. Martin v. State, 225 Ga. 234, 235(1), 167 S.E.2d 638; Clark v. State, 222 Ga. 802(1), 152 S.E.2d 692.

2. Enticing a child for indecent purposes, in violation of Code Ann. § 26-2020 (Ga.L.1968, pp. 1249, 1302), is not included in the offense of aggravated sodomy prohibited by Code Ann. § 26-2002 (Ga.L.1968, pp. 1249, 1299). Each of these offenses involves proof of distinct essential elements. The defendant's conviction for enticing a child for indecent purposes is predicated on the evidence of defendant's conduct in taking the victim, a child of less than 14 years, to any place whatsoever for the purpose of indecent acts. Evidence of this conduct was not necessary to prove aggravated sodomy, which includes no element of asportation. Thomas v. State, 128 Ga.App. 538, 541(2), 197 S.E.2d 452.

A violation of Code Ann. § 26-2020, supra, occurs when a person "solicits, entices or takes " (Emphasis supplied) a child under 14 years of age to any place for the purpose of indecent acts. As there is ample evidence of defendant's taking the victim in his motor vehicle to a place for the purpose of indecent acts it is immaterial whether there is also evidence of defendant's enticing, inviting, or persuading the victim to go with him.

Defendant's reliance on Sanders v. State, 145 Ga.App. 73, 243 S.E.2d 274 is misplaced. In that case there was no issue of defendant's taking the alleged victims to a place. Instead, the issue was whether the alleged victims had been enticed to defendant's home. The decision of this court therefore focused on the issue of enticement while implicitly acknowledging that there was no evidence of that defendant taking the victims to any place for the purpose of indecent acts.

3. The victim was examined by a physician for evidence of sexual abuse. The physician took a sample from the victim's rectum which was sent to the laboratory where it was analyzed for the presence of sperm. Two medical technologists from the hospital's laboratory testified that they observed under a microscope in the smears and the slides of the items sent to the laboratory, human sperm. This testimony of these two witnesses was admitted over defendant's objection that the medical technologists were not qualified experts.

Defendant argues that the trial court abused its discretion in allowing these witnesses to testify as experts, arguing that their testimony as to their qualifications failed to establish their expertise. Defendant relies on the testimony that one of the witnesses did not participate in preparing the smears observed under microscopes and gave no testimony of prior experience identifying sperm under a microscope. The other witness stated that she had observed human sperm under a microscope previously but did not testify as to how many times she had previously done so.

Both of the medical technologists had received four year college Bachelor of Science degrees with concentrations in medical technology or biology. One of the witnesses testified as to an additional twelve month internship. Both witnesses were licensed and certified medical technologists experienced in their profession, one for five years and the other for over one year. One of the witnesses testified that a medical technologist works in the laboratory and performs any type of laboratory test that is done there and gives results.

Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. Rouse v. Fussell, 106 Ga.App. 259(4), 126 S.E.2d 830. Generally nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession; and special knowledge involving a particular subject may be derived from experience as well as study and mental application. Carter v. Marble Products Inc., 179 Ga. 122(1), 175 S.E. 480; Frazier v. State, 138 Ga.App. 640, 645, 227 S.E.2d 284. Even though the evidence as to these witnesses' qualifications related more to their studies than to their level of experience with the specific laboratory determination involved here, we find no abuse of discretion by the trial court. Tate v. State, 142 Ga.App. 487(1), 236 S.E.2d 173.

4. Defendant contends that the trial court erred in allowing hearsay testimony by the physician who examined the victim that the laboratory report sent to him indicated the presence of sperm. Any error in admitting this testimony was not harmful to defendant as this evidence is merely cumulative of properly admitted evidence. See Welch v. State, 237 Ga. 665, 676(12), 229 S.E.2d 390; Bryant v. State, 236 Ga. 790, 792(1), 225 S.E.2d 309; Williams v. State, 144 Ga.App. 130, 133(2), 240 S.E.2d 890.

5. When the victim's 10-year-old brother was called as a witness for the state, defendant objected to his competency. As required by Code § 38-1610, the trial court examined the witness (outside the presence of the jury) as to this...