Manning v. State
| Decision Date | 19 January 1993 |
| Docket Number | No. A92A1964,A92A1964 |
| Parties | MANNING v. The STATE. |
| Court | Georgia Court of Appeals |
Alden W. Snead, J.M. Raffauf, for appellant.
David McDade, Dist. Atty., Lois W. Gerstenberger, Asst. Dist. Atty., for appellee.
Randy Manning, Jr. was convicted of two counts of aggravated sodomy. He appeals his conviction and the denial of his motion for new trial, asserting six enumerations of error.
1. Manning first asserts that the evidence is insufficient to support his conviction. This enumeration is without merit. The victim, William Pirkle, is a mentally handicapped, 15-year-old boy. He testified that he was visiting with his grandparents when one of their frequent alcohol induced fights broke out. In order to prevent further injury to his grandmother, she and William fled to an area nearby referred to as "the woods." The area, located behind an abandoned supermarket, is a gathering place where people socialize, share alcohol, and often sleep. William had accompanied his grandmother to the area on previous occasions. Manning was in the woods that day and offered to let William's grandmother wrap up in his sleeping bag, as it was drizzling and she was cold. After she passed out, Manning began rubbing William, who asked him to stop. Manning pushed William's head down and ordered him to perform oral sex. William tried to get away, but Manning held him. When William started choking, Manning pulled down William's shorts and attempted anal intercourse. Several people approached, and William was able to extricate himself from the situation, having avoided actual penetration. Unable to rouse his grandmother, William ran back to his grandparent's house and called his mother to come and get him. Reviewing the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found Manning guilty beyond a reasonable doubt of two counts of aggravated sodomy. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Manning next asserts that the trial court erred in failing to charge, upon request on circumstantial evidence. The trial court defined direct and circumstantial evidence to the jury in its charge, but did not instruct them regarding the law of circumstantial evidence. Robinson v. State, 261 Ga. 698, 410 S.E.2d 116 (1991) requires that a requested charge on the law of circumstantial evidence must be given where the state's case relies in whole or in part on circumstantial evidence. We have reviewed all of the charges requested by Manning in the record, both initially and as supplemented, and do not find that a charge on the law of circumstantial evidence was requested. "Where there has been no written request to charge, failure to give the charge is not error." (Citations and punctuation omitted.) Bartel v. State, 202 Ga.App. 458, 459(3), 414 S.E.2d 689 (1992). We do not reach the issue of whether the state's case relies in whole or in part upon circumstantial evidence.
3. In his third enumeration of error, Manning asserts that the trial court erred in not requiring the state to furnish him with the name and address of the victim in this case pursuant to his timely notice to produce in violation of OCGA § 17-7-110 and Uniform Superior Court Rule 30.3. "While the state, in most instances, should provide a defendant with the telephone numbers and addresses of its witnesses, this [is] not required." Baxter v. State, 254 Ga. 538, 541(4), 331 S.E.2d 561 (1985). The indictment, which was served on Manning contained the name of the victim. Further, Manning was given a copy of the transcript of the child's taped statement. It is within the discretion of a minor's guardian whether to allow Manning's counsel to interview him and it was not error for the trial court to refuse to order William to submit to pre-trial interviews with Manning's attorney. Perkins v. State, 260 Ga. 292, 295(5), 392 S.E.2d 872 (1990). The state's failure to produce William for a pre-trial interview was not error.
4. Manning next alleges that the trial court erred and violated due process by restricting the defense's closing argument. During his closing argument, Manning's counsel stated: The state objected to this statement, as it was not argument which could be derived from any evidence presented at trial. The court agreed and, outside the presence of the jury, invited the defense to offer any evidence it might have of intentional delay. In finding an absence of evidence, the court instructed the jury: "Any remark or reference by any individual that any agent of the State or officer of the Court intentionally causes...
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