Kerr v. State, 59241
| Decision Date | 29 April 1980 |
| Docket Number | No. 59241,59241 |
| Citation | 154 Ga.App. 470,268 S.E.2d 762 |
| Parties | KERR v. The STATE. |
| Court | Georgia Court of Appeals |
Michael E. Hancock, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., for appellee.
Appellant was tried and convicted of aggravated sodomy. The trial court denied his motion for a new trial, and appellant filed this appeal enumerating as error the general grounds, the court's charge on intent, and the admission of certain hearsay testimony. We affirm.
1. The first enumeration of error challenges the sufficiency of the evidence to support the verdict. Having reviewed the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Boyd v. State, 244 Ga. 130, 132, 259 S.E.2d 71 (1979).
2. The court charged ". . . that the acts of a person of sound mind and discretion are presumed to be the product of the person's will, and a person is presumed to intend the natural and probable consequences of his acts; but both of these presumptions may be rebutted." Citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), appellant contends that this charge violated the Due Process Clause of the Fourteenth Amendment by shifting to him the burden of proving that he did not possess the requisite intent. This contention is without merit.
The instant charge is Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979).
Moreover, the court also charged ". . . that the burden of proof never shifts to the defendant to prove his innocence," and ". . . that a person . . . will not be presumed to act with a criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, motive, demeanor, and all other circumstances connected with the act for which the accused is prosecuted." Taken in its entirety, we find that the jury could not "have interpreted the challenged presumption as conclusive . . . or as shifting the burden of persuasion . . . (contrary to) the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt . . ." Sandstrom, 442 U.S. at 510, 99 S.Ct. at 2450; Skrine, supra; see also Cooper v. State, 212 Ga. 367 (2), 92 S.E.2d 864 (1956).
3. The victim's daughter was allowed to testify as to the circumstances of the alleged assault as related to her by the victim. Appellant objected that such testimony was hearsay. The crime occurred between 9:00 p. m. and 12:00 midnight. The daughter testified that the victim had kept an appointment at a dialysis clinic the following morning...
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