Jones v. State, 63044

• Decision Date: 12 March 1982
• Docket Number: No. 63044,63044
• Citation: 161 Ga.App. 610,288 S.E.2d 788
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

Page 788

288 S.E.2d 788

161 Ga.App. 610

JONES v. The STATE.

No. 63044.

Court of Appeals of Georgia.

March 12, 1982.

Robert A. Whitlow, Dalton, for appellant.

Stephen A. Williams, Dist. Atty., Dalton, for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of child molestation, the victim being his four-year old daughter.

1. The evidence, while hardly overwhelming, was sufficient to authorize the verdict. See Henry v. The State, 154 Ga.App. 120(2), 267 S.E.2d 653 (1980).

2. Over appellant's hearsay objection, the victim's grandmother was permitted to testify that some three days after the alleged molestation the victim had said that "my daddy [appellant] messed with me" and had further related the specific acts of molestation which served as the basis for appellant's indictment. This testimony was offered by the state under Code Ann. § 38-302 to explain the grandmother's conduct in having the victim taken to a physician for a medical examination for molestation on the day following the statements. The jury was so instructed. Appellant enumerates as error the admission of this testimony.

In Stamper v. The State, 235 Ga. 165, 168(1), 219 S.E.2d 140 (1975), a witness for the state was permitted to testify, over a hearsay objection, that, in response to the witness's inquiry, the victim had stated that she had been beaten by the defendant. On appeal, the Supreme Court reversed. "The statement of the child naming the appellant as the one who had beaten her was entirely unnecessary to explain the conduct of the witness in having the child examined by a physician. The state did not purport to introduce it for this purpose." Stamper, 235 Ga. at 169, 219 S.E.2d 140, supra. Appellant relies upon this holding in Stamper in asserting that the testimony offered against him was likewise erroneously admitted.

An examination of the facts in Stamper demonstrates that the witness had apparently already observed the bruises on the victim and had called the physician based upon that observation before the victim made the statement that appellant had beaten her. See Stamper, 235 Ga. at 167-168, 219 S.E.2d 140, supra. Hence, under these circumstances, the ultimate holding in Stamper was that it was "unnecessary" to offer the testimony by way of explaining the witness's conduct in securing a medical examination. However, the testimony in the instant case demonstrates that it was solely the victim's initial voluntary statement which served as the basis for the witness's subsequent conduct in having the child examined. Under these circumstances, where the hearsay statement serves as the sole explanation of the witness's subsequent conduct in securing medical attention for the victim rather than a mere bolstering explanation of the witness's already effectuated conduct, we cannot say that such testimony is "entirely unnecessary to explain the conduct of the witness in having the child examined by a physician." Stamper, 235 Ga. at 169, 219 S.E.2d 140, supra. As discussed above, unlike Stamper, the testimony in the instant case was introduced for this limited purpose of explaining the subsequent conduct of the witness. See Decker v. The State, 139 Ga.App. 707, 711(8), 229 S.E.2d 520 (1976). Compare Sanborn v. The State, 159 Ga.App. 608, 284 S.E.2d 110 (1981). The jury was instructed accordingly. Compare Harrell v. The State, 241 Ga. 181, 186(2), 243 S.E.2d 890 (1978). We therefore find no reversible error in the admission of the testimony in the instant case for the limited purpose of explaining the witness's subsequent conduct. See Boatright v. The State, 150 Ga.App. 283(1), 257 S.E.2d 314 (1979). See also Bodrey v. Bodrey, 246 Ga. 122, 123(2), 269 S.E.2d 14 (1980). If, as in the instant case, the victim's statement was admissible under Code Ann. § 38-202 to explain her subsequent conduct, it was not error to admit it for that limited purpose, "even though it would have been more regular to admit only the fact that a conversation occurred, without going into the particulars of what was said. [Cit.]" Bradley v. The State, 137 Ga.App. 670, 671(2), 224 S.E.2d 778 (1976).

3. During cross-examination, the victim's mother, appellant's ex-wife, became incensed at the direction the questioning was taking and directed the following inquiry to the trial court: "[C]an I tell how [appellant] beat me one Christmas with an ax handle and I was purple from my waist down?" Appellant made a motion for mistrial. The trial court denied the motion but instructed the jury to disregard the statement and cautioned the witness. Appellant renewed his motion for mistrial, which the trial court also denied. Error is enumerated upon the denial of the renewed motion for mistrial. "Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in ruling the testimony out. [Cits.] This is true even if the illegal testimony has the effect of placing the defendant's character in issue ( [Cits.] ), especially when the testimony is volunteered by the witness and not directly elicited by the solicitor. [Cits.]" Brown v. State, 118 Ga.App. 617, 620-621, 165 S.E.2d 185 (1968). Accordingly, we find no reversible error in the failure to grant appellant's renewed motion for mistrial. See Carrigan v. State, 206 Ga. 707(3), 58 S.E.2d 407 (1950); Stanford v. State, 201 Ga. 173, 186(2), 38 S.E.2d 823 (1946).

4. Appellant enumerates as error the failure of the trial court to charge, absent request, on the defense of accident. We have carefully reviewed the transcript and find that "accident" was in fact appellant's sole defense. The state's contention that appellant was asserting defenses other than accident is without merit. Appellant's post-arrest statement to the police and his testimony at trial was that, while his daughter was visiting with him, she had diarrhea and "that he was cleaning her, when accidently his finger went into her vagina." It is readily apparent that this testimony does not constitute a confession to the crime of child molestation, for the statement is in essence a denial of the essential elements of the crime to wit: an immoral or indecent act and the intent to arouse or satisfy sexual desires. Code Ann. § 26-602; Bloodworth v. State, 216 Ga. 572(1), 118 S.E.2d 374. As an admission, it was incriminating only to the extent that it admitted an "act", which, if not an "accident", could have...