McGuire v. State

• Decision Date: 16 July 1993
• Docket Number: No. A93A0256,A93A0256
• Citation: 434 S.E.2d 802,209 Ga.App. 813
• Parties: McGUIRE v. THE STATE.
• Court: Georgia Court of Appeals

Page 802

434 S.E.2d 802

209 Ga.App. 813

McGUIRE v. THE STATE.

No. A93A0256.

Court of Appeals of Georgia.

July 16, 1993.

Reconsideration Denied July 30, 1993.

Sarina J. Woods, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Barry I. Mortge, Suzanne Wynn, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of statutory rape (Count 1), incest (Count 2), two counts of child molestation (Counts 3 and 4), and aggravated child molestation (Count 5). The charges of Counts 1 and 2 of the indictment merged for purposes of sentencing. This appeal followed denial of defendant's motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for directed verdict of acquittal with regard to Count 5, arguing that fatal variances exist between the allegata and probata.

(a) Defendant first contends the State failed to prove that he committed aggravated child molestation by "placing his sex organ on and against the anus of [the victim]." Defendant argues that the offense could not have occurred as alleged because the victim testified that the criminal act occurred while the victim was wearing "jeans."

At trial, the five-year-old victim testified that defendant used his hands to touch the victim's penis, anus and chest. On cross-examination, the victim explained as follows: "[DEFENSE COUNSEL:] What did [defendant] do to you? A. He stick [sic] his private parts in my private parts. Q. He stuck his private part to your private part? ... Q. So what did you have on when [defendant] touched you--touched you with his private parts? A. My jeans. Q. You had on your jeans." This evidence and testimony from several adults that the victim reported defendant's sexual assault in the manner charged in Count 5 of the indictment is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of committing aggravated child molestation. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Richardson v. State, 194 Ga.App. 358, 359(1a), 390 S.E.2d 442; OCGA § 24-3-16.

(b) Next, defendant contends the State failed to prove that the alleged incident of aggravated child molestation occurred on the date alleged. " ' "[A]ssuming ... that there was a variance between the allegata and the probata in regard to the time of the commission of the crime, a motion for directed verdict was not the proper vehicle for obtaining relief. The [defendant] should have made a motion for continuance, postponement or recess if surprised by a time variance." (Cit.)' Mann v. State, 167 Ga.App. 829(1) (308 S.E.2d 12) (1983). See also Whittington v. State, 184 Ga.App. 282(4) (361 S.E.2d 211) (1987). Accordingly, we find no error with the trial court's denial of [defendant's] motion for directed verdict of acquittal on [Count 5] of the indictment." Martin v. State, 196 Ga.App. 145(1), 146, 395 S.E.2d 391.

2. In his fourth enumeration, defendant contends the trial court erred in failing to give him access to exculpatory or impeaching material in the State's file and the investigation records of the City of Roswell Police Department and Department of Family & Children Services.

The record reveals that the State provided defendant all material required pursuant to defendant's pre-trial discovery motions. See Stewart v. State, 199 Ga.App. 157, 158(2), 404 S.E.2d 461. The record also reveals that the trial court found no impeaching or exculpatory material after an in-camera examination of records from the City of Roswell Police Department and the Department of Family & Children Services. We have examined these sealed records and find no such exculpatory or impeaching information. Consequently, this enumeration is without merit. See Davidson v. State, 183 Ga.App. 557, 559(4b), 359 S.E.2d 372.

3. Defendant contends in his sixth enumeration that the trial court erred in denying his request to charge on the law of circumstantial evidence.

In Whittington v. State, 252 Ga. 168, 313 S.E.2d 73, the Supreme Court held that "it is not error to fail to charge on circumstantial evidence where there is some direct evidence[,] Johnson v. State, 235 Ga. 486, 491-92 (220 SE2d 448) (1975) [, b]ut if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request. Stanley v. State, 239 Ga. 260, 261 (236 SE2d 611) (1977)." Id. at 176(7), 313 S.E.2d 73. However, the Supreme Court changed this rule in Robinson v. State, 261 Ga. 698, 410 S.E.2d 116, recognizing that it is impossible to determine whether the jury did or did not believe a State's witness (i.e., determine whether the witness was or was not impeached) and enunciating that "where the state's case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. [The Supreme Court then emphasized that t]his rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached." Id. at 699, 410 S.E.2d 116.

In the case sub judice, there was circumstantial evidence pointing to the conclusion that defendant committed at least one of the crimes charged. Since it is impossible to determine whether the jury rejected the direct evidence, Robinson requires reversal of defendant's conviction based on the trial court's failure to give defendant's requested charge on circumstantial evidence. Russ v. State, 204 Ga.App. 689(1), 420 S.E.2d 373.

4. The errors alleged in defendant's remaining three enumerations are unlikely to occur upon retrial.

Judgment reversed.

BIRDSONG, P.J., and COOPER, ANDREWS and SMITH, JJ., concur.

POPE, C.J., BEASLEY, P.J., and BLACKBURN, J., concur in part and dissent in part.

JOHNSON, J., not participating.

BEASLEY, Presiding Judge, concurring in part and dissenting in part.

I concur in Divisions 1 and 2 but I respectfully dissent with respect to Division 3, which involves the rejection of two requested charges. As to Division 4, I cannot concur because a new trial is not required and thus the three remaining enumerations must be addressed.

1. Request No. 14 is a nearly verbatim recitation of the charge endorsed in Davis v. State, 74 Ga. 869, 880 (1885). ¹ It is premised on the given fact that all of the evidence linking defendant with the crime is circumstantial. It starts out, "[w]here the guilt of the defendant depends upon circumstantial evidence alone ..." and the rest follows, focusing only on the scenario of a "chain of circumstances." Davis was such a case. There was no direct evidence whatsoever that Davis had committed the homicide or that it was in fact murder. The court posed "[t]he great question" thusly: "do the links in this chain of circumstances so twine around and bind the accused as to make the knot, tied by all combined, hold him as it can hold no other person ... ?" Id. at 877. It answered as follows: "If, then, suicide and accident can, neither of them, consist with these circumstances, and some one is a murderer, ... , the same circumstances can consist with no other, as that murderer, than this unhappy [defendant]." Id. at 879.

The instant conviction did not depend on circumstantial evidence alone. Both victims testified that defendant performed the indicted acts on them. The charge was not adjusted to the evidence. It would have been wrong to imply to the jury that all of the evidence in this case was only circumstantial and thereby to relegate the direct evidence to the lower status accorded to circumstantial evidence, which requires a higher quantum and quality to support a conviction. See Davis, supra at 880.

Robinson v. State, 261 Ga. 698, 410 S.E.2d 116 (1991), involved both direct and circumstantial evidence. The Court held that "where the state's case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request." The Court did not rule that the request made by defendant in this case was required. Nor is the particular charge requested by Robinson set out in the opinion. Robinson does not mandate the charge requested by McGuire; it mandates "a" charge, and it obviously means a proper charge, given the body of evidence in the case.

Here the court did instruct the jury on the definitions of, and the difference between, direct and circumstantial evidence, and on the two theories principle.

The opinion in Russ v. State, 204 Ga.App. 689(1), 420 S.E.2d 373 (1992), relied upon by appellant, does not contain the charge requested and indicates that the court gave no charge whatsoever on the law of circumstantial evidence. It is not authority for the contention that the charge requested by McGuire was demanded.

2. Defendant's authority for Request No. 15 is Riley v. State, 1 Ga.App. 651, 655(1), 57 S.E. 1031 (1907), but the requested charge constitutes merely that court's judicial opinion upon the worth of circumstantial evidence; it does not constitute the instruction which that court held must be given in "wholly" circumstantial cases. That case, unlike this one, depended "entirely" on circumstantial evidence.

Defendant's reference below to O'Quinn v. State, 153 Ga.App. 467, 471, 265 S.E.2d 824 (1980), is of no aid to him because it did not involve a jury charge. Defendant's final authority, Williamson v. State, 191 Ga.App. 388, 381 S.E.2d 766 (1989), which like O'Quinn concerned a conviction based exclusively on circumstantial evidence, also did not involve a jury charge. Rather, the issue was whether the evidence was sufficient to support the verdict.

The refusal of the trial court to instruct the jury as defendant requested did not deprive him of a fair trial.

BLACKBURN, Judge, concurring in part and dissenting in part.

I concur in Divisions 1 and 2 of the majority opinion. However, I believe that in Division 3 the majority opinion...