Lynn v. State, 73443
| Decision Date | 04 December 1986 |
| Docket Number | No. 73443,73443 |
| Citation | 352 S.E.2d 602,181 Ga.App. 461 |
| Parties | LYNN v. The STATE. |
| Court | Georgia Court of Appeals |
Frank K. Martin, Columbus, for appellant.
William J. Smith, Dist. Atty., Bradford R. Pierce, Asst. Dist. Atty., for appellee.
Stormy Jo Lynn, the defendant, was convicted of the offense of child molestation and brings this appeal. The alleged victim testified that he was 12 years old and had moved to Columbus, Georgia, with his mother and stepfather. He said that on the night of January 25, 1985, he and his stepsister were taken to the home of the defendant where she was to babysit him and his stepsister while his parents went to dinner with some friends. At that time the defendant was living in the home of her sister. The victim stated that he and his stepsister were watching TV in the living room when the defendant called him to come into her bedroom. When he entered the bedroom, he saw that she was nude. He said she grabbed him by the arm and removed his clothes, sat on top of him, fondled his private parts, and then forcibly raped him. He did not tell his mother what happened. He told some friends in April or May 1985, and they told his mother. At that time, she telephoned him in Illinois where he was spending the summer with his father, and questioned him about the incident. He did not tell her everything that had happened. When he returned in July 1985, he told his mother the complete story.
The victim's mother said she found out in April 1985, that the defendant had been having an affair with her husband. Thereafter, she was told by the boys of a neighbor that her son told them the defendant "plays with my little boy's place [private parts]" and she had telephoned him in Illinois to discuss it with him. Finally in the fall of 1985, her husband left her and began living with the defendant who was pregnant with his child. Her husband later obtained a divorce from her.
The defendant denied that she committed the offense charged, and also denied she had been a babysitter for the victim. The former stepfather of the victim testified that the defendant did not babysit the victim and he had not taken his stepson to her home on January 25th, the date of the alleged offense. Defendant's sister testified that she had moved from Columbus to Smyrna, Georgia, during the first week in January 1985, and this incident could not have taken place in her house where the defendant was living with her in Smyrna on the date of the alleged offense. The jury resolved the conflict in the evidence in favor of the State and defendant appeals the jury verdict of guilty. Held:
1. Appellate counsel has enumerated as error a claim of a denial of effective assistance by the trial defense counsel. This claim of error was not raised in the trial court, and a motion for new trial was not filed in this case. Appellate courts decline to address this issue when raised for the first time on appeal (Hamilton v. State, 255 Ga. 468, 470, 339 S.E.2d 707; Williams v. State, 254 Ga. 6, 10, 326 S.E.2d 444), particularly when appellate counsel fails to file a motion for new trial (Simpson v. State, 250 Ga. 365(2), 297 S.E.2d 288). Any contention concerning a violation of the constitutional right of effective assistance of counsel must be made at the earliest practicable moment (Smith v. State, 255 Ga. 654, 656, 341 S.E.2d 5), and the counsel whose proficiency is under attack should be given an opportunity to be heard. Simpson, supra, 250 Ga. at 367, 297 S.E.2d 288. Although counsel has enumerated 41 separate instances of claimed ineffectiveness, we have found no single or combined circumstances which would justify a presumption of ineffectiveness requiring reversal. See United States v. Cronic, 466 U.S. 648, 660-662, 104 S.Ct. 2039, 2047-2049, 80 L.E.2d 657. This enumeration is without merit.
2. Defendant avers that the taped interview of the victim by the police on January 7, 1986, almost one year after the alleged offense, was not admissible in evidence. The trial court, over objection, admitted the taped interview on the basis that "it goes to the boy's credibility." Counsel claims the statement is hearsay and violated defendant's right to confrontation and cross-examination.
The State argues that this issue is controlled by OCGA § 24-3-16, which makes admissible a statement by a child under the age of 14 to a third person, describing an act of sexual contact performed on his person, if the child is available to testify and the court finds sufficient indicia of reliability. This code section became effective on July 1, 1986. This trial was held on April 1, 1986, and the code section is inapposite.
The State also contends the statement is admissible as part of the res gestae. Our Supreme Court, in Andrews v. State, 249 Ga. 223, 225-228, 290 S.E.2d 71, gave an excellent resume of the law of res gestae and returned to Justice Nesbet's definition in Mitchum v. State, 11 Ga. 615 622, that "the res gestae mean the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character." Our Code also defines res gestae as "[d]eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or...
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