Middlebrooks v. State

• Court: Georgia Court of Appeals
• Writing for the Court: CARLEY; QUILLIAN, P. J., and SHULMAN
• Citation: Middlebrooks v. State, 156 Ga.App. 319, 274 S.E.2d 643 (Ga. App. 1980)
• Decision Date: 05 November 1980
• Docket Number: No. 60421,60421
• Parties: MIDDLEBROOKS v. The STATE.

Page 643

274 S.E.2d 643

156 Ga.App. 319

MIDDLEBROOKS v. The STATE.

No. 60421.

Court of Appeals of Georgia.

Submitted Sept. 15, 1980.

Decided Oct. 23, 1980.

Rehearing Denied Nov. 5, 1980.

J. Thomas Chason, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant appeals his conviction of assault with intent to rape.

1. In his first enumeration of error appellant contends that "(t)he evidence was insufficient to support the verdict for the offense of aggravated assault with intent to rape." This contention is patently without merit. The prosecutrix testified at trial that appellant crawled under the door of the ladies' room stall in which she was changing her clothes, pulled his pants down to his knees, grabbed her by the throat and pulled at her clothes, all the while warning her not to make any noise. This testimony was sufficient to authorize rational triers of fact to find appellant guilty beyond a reasonable doubt of assault with intent to rape. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant next enumerates as error the trial court's denial of his motion for mistrial, contending that the trial court abused its discretion in not ruling that the presence and actions of the prosecutrix's five-year-old child before the jury resulted in the failure of appellant to receive a fair trial.

The record discloses that as the prosecutrix was leaving the courtroom after having testified for the state her child loudly called out "Mommy." Defense counsel immediately moved for a mistrial, but the trial court denied the motion and gave no cautionary instructions to the jury to disregard the child's exclamation. Appellant now argues that the trial court's failure to grant a mistrial under these circumstances constituted an abuse of its discretion. We disagree. Appellant has failed to demonstrate that the child's presence or actions in the courtroom prejudiced the jury in any way or prevented appellant from obtaining a fair trial. Absent such a showing, this court will not ordinarily substitute its judgment for that of the trial court in determining whether or not the questionable occurrence endangered the moving party's right to a fair trial. "Where demonstrations occur during the course of a trial it is generally a matter of discretion upon the part of the trial court as to whether the grant of a motion for mistrial is necessary to insure the...