Hite v. State

• Decision Date: 12 March 1993
• Docket Number: No. A92A2288,A92A2288
• Citation: 208 Ga.App. 267,430 S.E.2d 125
• Parties: HITE v. The STATE.
• Court: Georgia Court of Appeals

Page 125

430 S.E.2d 125

208 Ga.App. 267

HITE v. The STATE.

No. A92A2288.

Court of Appeals of Georgia.

March 12, 1993.

Reconsideration Denied March 30, 1993.

Certiorari Denied July 15, 1993.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., A. Gregory Poole, Marietta, for appellant.

Darrell E. Wilson, Dist. Atty., Brett W. Ladd, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Appellant Daniel Hite a/k/a Daniel Lamar Hite appeals his judgment of conviction of three counts of child molestation in violation of OCGA § 16-6-4, and his sentence. Appellant enumerates two errors; both directly relate to a claim of lack of adequate legal representation at trial.

Appellant's stepdaughter, who was age 13 at time of trial, testified appellant committed acts of child molestation upon her, as averred in each of the three counts of the indictment, and that appellant's molestive conduct had occurred less than a year but more than a month earlier. Subsequently, she told Ms. Collier, who was the social service specialist for the Department of Family & Children's Services (DFCS), that appellant had been touching her "and stuff."

Appellant's ex-wife, the child's mother, testified as an eyewitness to one count of child molestation, as follows: On December 9, 1990, she entered her daughter's bedroom and observed her daughter straddling appellant; her daughter was sitting on appellant's pubic area with her nightgown pulled up and no underpants on; appellant had his shorts pulled down and was totally exposed from the waist down. The child also testified as to this incident that appellant was holding her against his private parts as she struggled to get free.

Mr. Cagle, a school counsellor, testified that appellant's stepdaughter was referred to him on December 10, 1990, by the school nurse. The child said her stepfather had tried to sexually molest her the night before; she did not give any explicit details about the encounter. Mr. Cagle reported the incident to DFCS.

Ms. Collier, social service specialist of DFCS, testified that on December 10, 1990, appellant's stepdaughter told her about the events surrounding the December 9 incident. The stepdaughter also said there were several other times when such things happened. Ms. Collier also testified that, on December 11, 1990, the stepdaughter told her of certain other acts, including the touching of her private parts by appellant. Ms. Collier also talked with appellant who stated: "He used to physically discipline [his stepdaughter] and because she bruised easily he resorted to trying to love her more and that that's when the physical touching began.... [Appellant] just allowed [his stepdaughter] to do her own thing which was getting on top of him and rubbing. [Appellant told Ms. Collier] that he should have stopped, that he knew it was wrong, that he had thought of coming for help about a month before [Ms. Collier] made contact with him." Appellant also "admitted to [Ms. Collier] that he had touched [his stepdaughter] inappropriately.... [Appellant further stated:] 'I never got an erection and we never had intercourse.' "

Appellant testified in his own defense and repeatedly denied engaging in any act of molestation regarding his stepdaughter; he offered explanations for the various conduct and statements attributed to him and claimed that certain of his responses had been incorrectly recorded. During the course of his testimony, appellant made an admission in open court that his stepdaughter sat on his groin area "a lot," but later gave contradictory testimony that she had never sat on his groin area. Appellant denied any sexual arousal or act of molestation during the December 9 incident. However, he admitted in open court that his stepdaughter was sitting on his rib cage when they started scuffling, and that his jogging shorts slid down a little. Nevertheless, appellant maintained that his pubic hair and penis were not exposed at any time and that his stepdaughter had her nightgown tucked under her when she was sitting on him. Appellant also identified his handwriting in two letters which he had written to his ex-wife. Appellant testified in an attempt to explain the contents of one of the letters, State's Exhibit No. 3. He testified that, although this letter read: "No matter what happened, I never had sex with her ... I would let her rub around until she was through and then that was it," that he meant that his stepdaughter would rub around on his back; just rub his back and shoulders, and that he was not talking about other parts of his body. And, that when he wrote, "I was scared not to let her, because I was scared she would tell," he was referring to the fact that his ex-wife had gotten "on to us several times for [his stepdaughter] sitting on [his] back, rubbing the back of [his] legs and rubbing [his] shoulders.... [He would] let her do it, but [he] was always ... afraid she would tell [his ex-wife] and [his ex-wife would] come around and pitch a fit over nothing."

In addition to the evidence above summarized, State's Exhibit Nos. 2 and 3, letters written by appellant, were introduced but not expressly admitted in evidence. However, these exhibits are contained in the trial record and attached at the end of State's Exhibit No. 1. The record reflects that State's Exhibit Nos. 2 and 3 were tacitly admitted in evidence by the trial court (Morgan v. State, 204 Ga.App. 178, 181(1c), 419 S.E.2d 313). In this regard, after the State tendered the two exhibits in evidence, appellant's counsel immediately requested and was given permission to recall appellant to respond to some of the "things" in the letters. Appellant thereafter explained to the jury the meaning that he intended in certain statements in the two letters. Held:

1. Appellant enumerates as error no. 2 that the trial court failed to insure appellant received a fair trial, that is, a trial the results of which can be trusted. Appellant asserts in support of this contention instances regarding the admission of certain evidence, including the admission of State's Exhibit No. 1 (a 35-page document from The Highland Institute For Behavioral Change, Inc.) by way of stipulation, the failure to introduce character evidence, and allowing a juror to serve who expressed a belief that she may be related by marriage to appellant's stepdaughter, and the failure of counsel to tender any requests for charges. The record shows that appellant failed to preserve any of these issues by failing to object timely and specifically thereto, by expressly waiving any claim of error, or by acquiescing expressly or by silence as to the particular issue under trial court consideration. See generally Tatum v. State, 259 Ga. 284, 287(3), 380 S.E.2d 253; Easterwood v. State, 259 Ga. 164(2), 377 S.E.2d 857; Wilburn v. State, 199 Ga.App. 667, 669(2), 405 S.E.2d 889; Hawkins v. State, 195 Ga.App. 739(2), 395 S.E.2d 251; Ray v. State, 187 Ga.App. 451, 452, 370 S.E.2d 629. Further,...