McGee v. State

Decision Date08 September 1992
Docket NumberNo. A92A0945,A92A0945
Citation423 S.E.2d 666,205 Ga.App. 722
PartiesMcGEE v. The STATE.
CourtGeorgia Court of Appeals

Adele P. Grubbs, Marietta, Amelia G. Pray, Mableton, for appellant.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Karl Howell McGee appeals from the verdict and sentence, and from the denial of his motion for new trial. Appellant was convicted of one count of child molestation of E.M., one count of rape of M.M., and one count of cruelty to children by hitting M.M., striking her when she refused to get in bed with him, and threatening to whip her if she told anyone about his sexual advances. E.M. and M.M. are appellant's daughters.

At time of the alleged incidents E.M. was age 12 and M.M. was age 14. At the time of trial E.M. was age 13 and was attending a special class for children with an I.Q. of 45 and below; M.M. was age 16 and was moderately mentally handicapped. Both children were living with appellant's mother at trial time. On the witness stand, E.M. recanted and denied that appellant had sexually assaulted her; she admitted telling her teacher that appellant had touched her "private," but claimed M.M. told her to say that; and she denied telling anyone that appellant sexually abused her. M.M. testified in the vernacular that appellant had penetrated her "private" with his penis and threatened to whip her if she told of his activity, but denied he had actually struck her. The State introduced two videotapes and an audio tape of the victims' prior, out-of-court statements describing inter alia certain sexual acts perpetrated by appellant upon them.

Appellant enumerates 17 separate errors, several of which have sub-parts. Held:

1. The following general rules will be applied, as appropriate, in the disposition of this appeal:

(a) "[I]f evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories." Boatright v. State, 192 Ga.App. 112, 116(6), 385 S.E.2d 298.

(b) On appeal the evidence must be viewed in the light most favorable to the verdict. Guffey v. State, 191 Ga.App. 501, 503(3), 382 S.E.2d 202.

(c) Rules of evidence are framed with a view toward obtaining the "discovery of truth." OCGA § 24-1-2. And, certain rules of evidence have been most liberally extended regarding sexual crimes, particularly those involving children. See, e.g., Oller v. State, 187 Ga.App. 818(2), 371 S.E.2d 455.

2. E.M.'s schoolteacher, Ms. Allen, testified without objection to certain statements made by E.M. Appellant's attorney elicited from Ms. Allen's testimony that E.M. stated appellant was making her do certain things, that " 'he makes us [she and M.M.] go into the bedroom. We have to sleep with him, and he does things to my sister and myself.' " (Emphasis supplied.) Any issue relating to the admissibility of this testimony under OCGA § 24-3-16 was waived by appellant's trial procedure and by his not taking any timely and specific objection thereto. Lawton v. State, 259 Ga. 855, 856(2), 388 S.E.2d 691; Wilburn v. State, 199 Ga.App. 667, 669(2), 405 S.E.2d 889.

3. As State's Exhibit No. 1, a medical report, was admitted after "no objection" was posed by appellant's counsel, appellant cannot complain of the report's admission on appeal. See Bruce v. State, 259 Ga. 798(2b), 387 S.E.2d 886.

4. Whether and when to allow a witness to be recalled for further examination rests in the sound discretion of the trial court. See Andrews v. State, 148 Ga.App. 709, 710, 252 S.E.2d 210. The trial court did not abuse its discretion in allowing M.M. to be recalled by the State to give additional testimony in order to form a better foundation for admission of her out-of-court statements to Detective Wade, though such procedure interrupted the presentation of the testimony of the detective who was on the stand as a State's witness at the time of recall.

5. Appellant contends prejudicial error occurred when he was not allowed to cross-examine M.M. regarding whether she had ever run away from home. The record reflects that appellant acquiesced to the State's objection and abandoned voluntarily that line of questioning, without obtaining a ruling as to the objection from the trial court. "Because counsel for the defendant agreed to proceed as requested by the state, there is no issue here for our review." Easterwood v. State, 259 Ga. 164, 165(2), 377 S.E.2d 857; compare Westwind Corp. v. Washington Fed. Sav. etc. Assn., 195 Ga.App. 411(1), 393 S.E.2d 479.

6. Appellant asserts the trial court erred in instructing the jury that when an indictment charges that a crime was committed in more than one way, the State is not required to prove the commission of that crime in every way alleged but may prove the crime was committed in any one of the ways alleged. This is a correct statement of law. See, e.g., Gordon v. State, 199 Ga.App. 704, 705(1), 406 S.E.2d 110 and cases cited therein. The indictment counts were read to the jury as part of the charge, and the indictment was given to the jury for their consideration during deliberation. We are satisfied, after examining the charges in their totality, no fair risk exists that the jury could be misled to believe they could apply this correct legal principle to any count in the indictment other than to Count 4, cruelty to children. There was no charging error.

7. Notwithstanding OCGA § 5-6-40, appellant's enumeration of error number 13 asserts two separate errors therein, to-wit that the trial court failed to give a complete charge on the crime of rape and failed to charge the jury on constructive force. Exercising our discretion (Robinson v. State, 200 Ga.App. 515, 518(2), 408 S.E.2d 820; compare Murphy v. State, 195 Ga.App. 878(6), 395 S.E.2d 76, we elect to review only the claim of lack of completeness of the rape charge and to treat as abandoned the claim of error based on a failure to charge on constructive force.

The trial court instructed that "in Count 3 of the indictment the defendant is charged with the offense of rape. Rape is defined by law as follows: 'A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.' ... If ... you should find and believe beyond a reasonable doubt that ... the defendant did ... commit the offense of rape as charged in Count 3 of the indictment, you would be authorized to find the defendant guilty of that offense.... On the other hand, if you do not believe that the defendant is guilty of rape as charged in Count 3 of this indictment, or if you have any reasonable doubt as to his guilt of that offense, then it would be your duty to acquit the defendant of that offense." (Emphasis supplied.) The court also instructed the jury inter alia as to Count 3 that " 'the grand jurors ... further charge and accuse Karl Howell McGee with the offense of rape for that the said accused ... did unlawfully have carnal knowledge of [M.M.], a female, forcibly and against her will.' " When examined in toto (Hambrick v. State, 256 Ga. 688(3), 353 S.E.2d 177, the charges reveal that not only was the jury given the statutory definition of rape (OCGA § 16-6-1), but was clearly instructed by the charges in their entirety of the existence of the rape elements of (1) carnal knowledge (by any penetration of the female sex organ by the male sex organ), (2) of a female, (3) forcibly, and (4) against her will. We thus find that the charges given to the jury were adequate to instruct the jury not only as to the essential elements of rape, but also as to the particular averments contained within the rape count in the indictment. Further, the trial court did not err by failing to instruct the jury as to the definition of force. Garner v. State, 182 Ga.App. 251, 252(2), 355 S.E.2d 451; compare Floyd v. State, 193 Ga.App. 17, 387 S.E.2d 16.

Phelps v. State, 192 Ga.App. 193, 384 S.E.2d 260 is factually distinguishable and not controlling.

8. Only after the charging of the jury did appellant enter two motions for mistrial as to two specific comments made to the jury by the State during its closing argument. No objections or mistrial motions were posed during argument when the trial court could have promptly and effectively taken any corrective action deemed necessary. " 'The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error.... When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of trial.' " (Emphasis supplied.) Tharpe v. State, 262 Ga. 110, 114(16), 416 S.E.2d 78. Applying this test we are satisfied that the trial record reveals no reversible error. In this regard, the comment regarding the witness being the one whose house burned was merely a means to identify quickly in the jury's mind to which witness the State was referring. Moreover, no reasonable inference could be drawn from the State's remarks that appellant had set fire to the witness' house. The fact that her house had burned was a matter voluntarily and spontaneously revealed in the presence of the jury by the witness, and with no implication that the fire had been deliberately set by anyone. The State also remarked about the lack of appellant's cross-examination of witnesses regarding whether someone other than the accused may have put his penis in M.M.'s vagina. We find appellant opened the door to this comment by his preceding closing argument that "if it was a...

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    ...hearsay exception; “surprise,” therefore, is not a required element, even when one wants to impeach his own witness. McGee v. State , 423 S.E.2d 666, 205 Ga. App. 722 (1992). A witness may thus be impeached by evidence of contradictory statements that he previously made as to matters releva......
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