Guest v. State, A94A2810
| Decision Date | 28 February 1995 |
| Docket Number | No. A94A2810,A94A2810 |
| Citation | 454 S.E.2d 622,216 Ga.App. 457 |
| Parties | GUEST v. The STATE. |
| Court | Georgia Court of Appeals |
Albert A. Myers III, Conyers, for appellant.
Cheryl F. Custer, Dist. Atty., Richard R. Read, Asst. Dist. Atty., Conyers, for appellee.
Appellant, Jerry Guest, was convicted of one count of aggravated sodomy, one count of aggravated child molestation and three counts of child molestation involving his thirteen-year-old daughter and her nine-year-old half-brother. He appeals from those convictions following the denial of his motion for a new trial.
1. Guest first contends that the trial court erred in admitting evidence of a prior 1989 conviction involving his daughter (see Guest v. State, 201 Ga.App. 506, 411 S.E.2d 364 (1991)) because the court failed to specifically find that the State made the three affirmative showings required by Uniform Superior Court Rule 31.3(B) and enunciated by our Supreme Court in Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991). We disagree. The record shows that at the pre-trial hearing on the admissibility of the prior act, Guest's attorney never objected to the admissibility of the similar transaction on grounds that the first two affirmative showings under Williams (that the evidence is being admitted for a proper purpose and that there is sufficient evidence that the defendant committed the independent act) had not been met. Rather, his only comment was that the trial court needed to consider whether the two incidents were similar given the remoteness in time between them. The court ruled that evidence of the similar transactions would be admitted.
Further, at the outset of the trial the State specifically raised the requirements of Williams, reiterated that it had made the three requisite showings, and requested the court to rule on the record that it had done so. The Judge responded Again, Guest's attorney made no objection as to the sufficiency of the State's three showings or the court's findings with regard thereto. His only objection was to the "scope" of the similar transactions that the State intended to introduce. While the court may not have precisely articulated that each of the three showings was satisfactorily made, we believe the court's determination was sufficient to satisfy Williams and USCR 31.3(B). Further, (Punctuation omitted.) Walker v. State, 208 Ga.App. 690, 693(2), 431 S.E.2d 459 (1993).
2. Guest also contends the trial court erred in admitting evidence, including a videotaped statement by his daughter given in connection with the 1989 indictment, that he engaged in a pattern of molestation from 1984-1988 because this pattern was not included in the prosecution's notice of its intent to present similar transactions pursuant to USCR 31.3(B). The notice stated that the "[t]ype of transaction [was] child molestation (the defendant placed his hand on the victim's vagina); Date 1984-1988; ... Copy of Indictment 89 CR 3423 is attached." The referenced indictment was from Guest's 1989 conviction, and it stated that the molestation occurred on or about December 25, 1988.
Guest contends that he had no notice prior to the trial that the State planned to introduce any similar transaction other than the single December 1988 incident and that he was prejudiced because had he been put on notice of this expected testimony, he could have called a witness to rebut it. This enumeration is without merit. We find it difficult to imagine how a defendant could truly be "surprised" by testimony of events from the very period of time specified on the State's notice, here 1984-1988. Further, the videotape alleging the prior pattern of molestation was made in connection with the specified 1989 indictment. Accordingly, we find the notice was sufficient to inform Guest that the State intended to introduce evidence of the December 1988 incident as well as similar acts from 1984-1988.
3. Guest contends that the trial court erred in admitting the videotaped statement his daughter made in connection with the December 1988 allegation because the tape violated the child hearsay statute, was cumulative and impermissibly bolstered his daughter's credibility.
We first address the use of evidence admitted pursuant to OCGA § 24-3-16, the child hearsay statute. Guest's specific objection at trial was that under OCGA § 24-3-16, such videotapes are admissible when the subject matter of the tape is the specific allegation for which the defendant is on trial, but that here, the tape was not admissible as similar transaction evidence because its subject matter was a prior allegation with which he was not currently charged. We disagree. OCGA § 24-3-16 states in pertinent part that "[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made...." (Emphasis supplied.) Nothing in the statute restricts the statement to use solely in connection with the prior incident, and in child molestation cases, this court has consistently upheld the admission of similar transactions involving incidents for which the defendant was not on trial pursuant to OCGA § 24-3-16. See, e.g., Green v. State, 212 Ga.App. 250(2), 441 S.E.2d 689 (1994) (...
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