Knight v. State, A92A1980

• Decision Date: 16 March 1993
• Docket Number: No. A92A1980,A92A1980
• Citation: 429 S.E.2d 326,207 Ga.App. 846
• Parties: KNIGHT v. The STATE.
• Court: Georgia Court of Appeals

Page 326

429 S.E.2d 326

207 Ga.App. 846

KNIGHT v. The STATE.

No. A92A1980.

Court of Appeals of Georgia.

March 16, 1993.

Thompson, Fox, Chandler, Homans & Hicks, David A. Fox, Gainesville, for appellant.

C. David Turk III, Dist. Atty., Lee Darragh, Asst. Dist. Atty., for appellee.

POPE, Chief Judge.

Defendant Robert Wayne Knight was charged with two counts of child molestation and one count of aggravated child molestation, and convicted on all counts. The victims in this case were defendant's stepdaughter and stepson, who were approximately four and two years of age, respectively, when the crimes occurred. Defendant appeals following the denial of his motion and amended motion for new trial.

1. Defendant contends the trial court erred by allowing Sudie Hoffman, a licensed therapist who testified as an expert witness for the State, to testify concerning whether the child's fear of the defendant appeared genuine, arguing that such testimony impermissibly allowed the witness to give her opinion concerning the child's veracity and credibility. The record shows that the State asked the witness the following question: "[B]ased on your observations of the child's demeanor, that is, what you were able to observe about her physical action, can you testify as to whether or not the fear that she expressed [about a weekend visitation with her mother] ... appeared genuine." The witness responded in the affirmative, that the fear appeared genuine to her.

We find no error. Here the witness was asked, in essence, if the victim appeared to be afraid based on observable physical criteria. The witness was not asked to express an opinion as to whether she found credible or believable the victim's statements concerning the acts of molestation attributed to the defendant, and at no time during her testimony did she express such an opinion. Cf. Guest v. State, 201 Ga.App. 506, 507(1), 411 S.E.2d 364 (1991); State v. Oliver, 188 Ga.App. 47, 372 S.E.2d 256 (1988). As we recognized in State v. Oliver, it is permissible for the witness to "express an opinion as to whether medical or other objective evidence in the case is consistent with the victim's story." (Emphasis supplied.) Id. at 51, 372 S.E.2d 256. "[The State] was not attempting to elicit a direct opinion on the ultimate issue of whether the victim had been molested. [Cits.] ... [The State] was simply attempting to elicit testimony as to whether the victim had exhibited ... behavior [or observable physical acts] which [showed she was afraid].... Testimony merely as to whether the victim did or did not exhibit this ... behavior would not invade the province of the jury, for the question of whether, notwithstanding her behavior, the victim was or was not molested would remain exclusively for jury resolution. The testimony would simply be available for the jury to accept or reject for consideration in its determination of the ultimate issue." Hall v. State, 201 Ga.App. 626, 627(2), 411 S.E.2d 777 (1991).

Moreover, even if we were to construe the witness' testimony as improper bolstering, we hold that "in the context of the evidence as a whole, it is highly probable that the testimony in question did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976)." Remine v. State, 203 Ga.App. 30, 31(2), 416 S.E.2d 326 (1992). Consequently, this enumeration is without merit.

2. Defendant next contends the trial court erred by allowing Hoffman to testify that the female victim told her that during visits her mother would whisper threats to her concerning what would happen to her if she told anyone it was the defendant who molested her and that to avoid being hurt she should disclose her natural father as the molester. We find no error. Immediately preceding this testimony the witness testified, without objection, that the victim's mother, who the evidence showed was a party to the acts of molestation perpetrated upon her young children by their stepfather, held her daughter down and choked her and that "they" burned the victim with a cigarette to prevent her from disclosing the molestation. Moreover, another witness also testified about the whispered threats, and no objection was made to that testimony. " 'Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.' [Cit.]" Ardeneaux v. State, 197 Ga.App. 640, 641(2), 399 S.E.2d 258 (1990). See also Kelly v. State, 197 Ga.App. 811(3), 399 S.E.2d 568 (1990). This enumeration is without merit.

3. In his third enumeration of error, defendant argues the trial court erred in admitting photographs showing burn marks made on the female victim because the State failed to give notice of its intent to introduce evidence of independent crimes as required by Uniform Superior Court Rules 31.1 and 31.3. We first note that the evidence is somewhat unclear as to whether the victim's mother or the mother and defendant, acting in concert, burned the victim, with the testimony indicating the victim disclosed to one witness that "they" burned her but disclosed on another occasion that her mother burned her with the cigarette. However, assuming the defendant was a party to this criminal act, we find, for the reasons stated below, that the trial court did not err in admitting the photographs of the victim's burns. As discussed in Division 2, testimony concerning the burns was admitted at trial, both before and after the admission of the photographs, without objection. Thus the evidence complained of was merely cumulative of direct unobjected-to testimony about the victim's burns. See Kelly, 197 Ga.App. at 814(3), 399 S.E.2d 568; Ardeneaux, 197 Ga.App. at 640(2), 399 S.E.2d 258. Moreover, the State is not required to provide notice of intent to introduce evidence of independent crimes when the defendant places his character in evidence at trial, such as was done in the case at bar. See Kelly, 197 Ga.App. at 815(7)(a), 399 S.E.2d 568; Sidwell v. State, 185 Ga.App. 138(1), 363 S.E.2d 603 (1987).

4. Defendant argues "[t]he trial court erred in not providing additional opportunity to develop more evidence" after defendant was provided, during the trial, with a page from the case record of the White County Department of Family & Children Services containing information concerning a referral DFCS had received about molestation of the victim by a party other than the defendant. However, the record shows defendant...