McDaniel v. State

• Citation: 204 Ga.App. 753,420 S.E.2d 636
• Decision Date: 01 July 1992
• Docket Number: No. A92A0216,A92A0216
• Parties: McDANIEL v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 636

420 S.E.2d 636

204 Ga.App. 753

McDANIEL v. The STATE.

No. A92A0216.

Court of Appeals of Georgia.

July 1, 1992.

Russell C. Gabriel, Athens, for appellant.

Harry N. Gordon, Dist. Atty., Steve C. Jones, Asst. Dist. Atty., for appellee.

COOPER, Judge.

Appellant, Danny McDaniel, was convicted by a jury of two counts of child molestation, one count of aggravated sodomy and one count of aggravated child molestation. He appeals from the judgment entered on the verdict and from the denial of his motion for new trial.

The acts occurred while the appellant and his wife and child were living with the seven-year-old victim and her family in a mobile home. The victim testified that on three nights while she was sleeping, appellant "stuck his wrong spot in [her] butt." Using an anatomically correct male doll, the victim indicated that the penis area of the doll what was she referred to as appellant's "wrong spot." The victim testified that she did not see appellant the first two times but that she knew it was him because no one else in the house would do that to her. The victim stated that the third time appellant bothered her she saw him. The victim's mother testified that the victim told her that "Danny" had been "messing" with her wrong spots. Upon further questioning, the victim stated that "Danny" had pulled her panties down and tried to put his wrong thing in her. The next morning, the victim's mother went to the police department made a complaint of child molestation against appellant, and subsequently took out a warrant against appellant for child molestation.

1. Appellant first contends that the trial court erred in admitting the written statement of appellant into evidence. Appellant voluntarily went to the police station and told an officer that he wanted to talk about the charges against him. After the officer advised appellant of his rights, appellant indicated that he understood his rights by signing a waiver of rights form. The officer interviewed appellant and at the conclusion of the interview, prepared a written statement for appellant to sign. The statement read: "What [the victim] said I did, I did. I might have been drunk." Appellant reviewed the statement and signed it without making any corrections. The trial judge held a Jackson-Denno hearing outside the presence of the jury to determine the voluntariness of appellant's statement and found that the statement was freely and voluntarily made. "A trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will withstand attack on appeal unless they are clearly erroneous. [Cit.]" Walker v. State, 186 Ga.App. 765, 766(2), 368 S.E.2d 547 (1988). We find no error with the trial court's admission of the statement. Appellant also contends that the written statement should not have been allowed to go out with the jury. However, the record reflects that appellant reviewed the exhibits prior to their submission to the jury and voiced no objection. Accordingly, this issue has not been preserved for our review. Pryor v. State, 198 Ga.App. 588(2), 402 S.E.2d 338 (1991).

2. In his second enumeration of error, appellant contends that the trial court erred in not granting a mistrial when the victim testified as to a fourth incident of child...