Frymyer v. State
| Citation | 346 S.E.2d 573,179 Ga.App. 391 |
| Decision Date | 04 June 1986 |
| Docket Number | No. 71936,71936 |
| Parties | FRYMYER v. The STATE. |
| Court | Georgia Court of Appeals |
Michael B. Perry, St. Marys, for appellant.
Glenn Thomas, Jr., Dist. Atty., James A. Chamberlin, Jr., Asst. Dist. Atty., for appellee.
Appellant was convicted of child molestation. We affirm his conviction.
1. In his first enumerated error, appellant complains that a statement he gave police should not have been admitted at trial, because it was not freely and voluntarily made. Appellant maintains his "limited intellectual capacity" rendered him incapable of freely and voluntarily waiving his constitutional rights.
At the Jackson-Denno hearing conducted prior to the admission of appellant's statement, the questioning officer stated that appellant's statement to authorities was given after appellant had been advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It was the officer's opinion that appellant appeared to understand his rights, was not under the influence of intoxicants, and gave the statement freely and voluntarily. Appellant testified he was not threatened in any way or promised anything to induce a statement. He stated he had attended school through the eighth grade, achieving a third-grade level of proficiency in special education classes, and could read and write "a little bit." He testified he understood his Miranda rights since he had a prior arrest for driving without a license. The trial court found appellant made the statement freely and voluntarily after having been advised of his constitutional rights.
Tyler v. State, 247 Ga. 119(2), 274 S.E.2d 549 (1981). Coverson v. State, 162 Ga.App. 497(2), 292 S.E.2d 196 (1982). The trial court did not err in admitting the statement.
2. The indictment alleges appellant exposed himself to a child under the age of 14 on May 16, 1984. The child testified to various incidents occurring from late December 1983 through the summer of 1984. Appellant testified he was incarcerated on May 16, 1984, and contends his motion for a directed verdict of acquittal should have been granted due to the existence of a fatal variance between the allegata and the probata.
"In DePalma v. State, 225 Ga. 465, 469 [ (169 S.E.2d 801) (1969) ], the Supreme Court adopted the 'fatal variance' rule of Berger v. United States, 295 U.S. 78, 82 (55 SC 629 , 79 LE 1314) [1935]: 'The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.' " Caldwell v. State, 139 Ga.App. 279, 281, 228 S.E.2d 219 (1976). "We hold that alleging one date in the indictment and proving another at trial when a defense of alibi as to the date alleged is relied upon violates the DePalma requirement 'that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial.'
"This does not mean, however, that time becomes an essential ingredient of the offense so that a variance may be taken advantage of by motion for directed verdict of acquittal, or on the ground of insufficiency of the evidence, as urged in this appeal ... The better rule, and the one which we adopt, is that the state may prove any date within the period of...
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