Henry v. State

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY
• Citation: Henry v. State, 267 S.E.2d 653, 154 Ga.App. 120 (Ga. App. 1980)
• Decision Date: 23 April 1980
• Docket Number: No. 59497,59497
• Parties: HENRY v. The STATE.

Page 653

267 S.E.2d 653

154 Ga.App. 120

HENRY v. The STATE.

No. 59497.

Court of Appeals of Georgia.

Argued Feb. 5, 1980.

Decided March 21, 1980.

Certiorari Denied April 23, 1980.

John R. Rogers, Ashburn, for appellant.

Thomas H. Pittman, Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted, tried, and convicted of child molestation. He was sentenced to a term of 10 years (5 years to serve and the balance on probation). A motion for new trial was filed, amended, heard, and denied. Defendant appeals. Held

1. When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. See Jones v. State, 75 Ga.App. 610(4), 615, 44 S.E.2d 174; Leverenz v. State, 140 Ga.App. 632, 634, 231 S.E.2d 513. Inasmuch as the evidence showed the defendant had molested the child in one of the ways alleged, a directed verdict of acquittal was not proper, and the court did not err in denying same. Compare Dobbs v. State, 235 Ga. 800, 801(3), 802, 221 S.E.2d 576.

2. After a careful review of the trial transcript and record, we find, and so hold, that a rational trier of fact (the jury here) could readily have found the defendant guilty beyond a reasonable doubt of the offense of child molestation. See Payne v. State, 151 Ga.App. 165, 166, 259 S.E.2d 168; Whatley v. State, 151 Ga.App. 174, 175, 259 S.E.2d 175.

3. "When, in a legal investigation, . . . conversations . . . and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." Code § 38-302. See Tanner v. State, 228 Ga. 829, 830(3), 188 S.E.2d 512; Bell v. State, 141 Ga.App. 277(2), 233 S.E.2d 253; Arnold v. State, 236 Ga. 534, 537(5), 224 S.E.2d 386; Kelly v. State, 82 Ga. 441(3), 444, 9 S.E. 171.

Here, under the guise of original evidence, conversations between the parents of the child victim were allowed in evidence over objection as well as what the child had told her mother. Clearly such conversations must be admitted to explain conduct and not as mere hearsay. See Arnold v. State, 236 Ga. 534, 536-537, 224 S.E.2d 386, supra; English v. State, 234 Ga. 602, 605, 216 S.E.2d 851.

However, in the recent case of Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869, the Supreme Court adopted the standard for weighing nonconstitutional errors known as the "highly probable test" with reference to what makes error harmless or harmful. Thus, if hearsay has no probative value and the same evidence as that contended in the hearsay is before the court, our Supreme Court, in examining the "highly probable test" would apparently hold that the allowance of such hearsay would be harmless, although in that case (Johnson v. State, 238 Ga. 59, 60, 230 S.E.2d 869, supra), that court held the hearsay statements to the prosecutor repeated in his argument were highly improper, prejudicial and harmful. See also in this connection Arnold v. State, 236 Ga. 534, 537, 224 S.E.2d 386, supra. But in Stamper v. State, 235 Ga. 165, 169, 219 S.E.2d 140, the Supreme Court found the hearsay statements to be highly prejudicial and reversed in that it was harmful error, citing in comparison Woolfolk v. State, 81 Ga. 551, 552(3), 557-558, 8 S.E. 724; and Tiget v. State, 110 Ga. 244(1), 34 S.E. 1023.

This court, however, in Bell v. State, 141 Ga.App. 277(2), 233 S.E.2d 253, 254, supra, has held that if the court admits the testimony "solely for the purpose of explaining the officer's course of conduct, and carefully instructed the jury on the nature of the testimony and its limited purpose," such testimony is not erroneous even if it may be hearsay. See Lloyd v. State, 139 Ga.App. 625(2), 626, 229 S.E.2d 106; Braden v. State, 135 Ga.App. 827, 829(3), 830, 219 S.E.2d 479. This case also holds that the testimony was not damaging to the defendant. Again, in Williams v. State, 144 Ga.App. 130, 131(1), 132, 240 S.E.2d 890, 892, the statement of a child to its mother in a somewhat similar case (cruelty to children) was held not a part of the res gestae, therefore hearsay, "and because it was extremely inculpatory of defendant, it was error to admit the statement." However, in Division 2 of that opinion this court determined that if there were other legally admissible...