Miller v. State

• Decision Date: 14 May 1986
• Docket Number: No. 71728,71728
• Parties: MILLER v. The STATE.
• Court: Georgia Court of Appeals

Page 647

345 S.E.2d 647

179 Ga.App. 100

MILLER v. The STATE.

No. 71728.

Court of Appeals of Georgia.

May 14, 1986.

Charles D. Chastain, Stone Mountain, Susan Jankowski, for appellant.

Harry D. Dixon, Jr., Dist. Atty., Richard E. Currie, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

The defendant was indicted for cruelty to a child (OCGA § 16-5-70), of which he was convicted, and child molestation (OCGA § 16-6-4), which was nolle prossed.

1. Defendant contends the court erroneously permitted evidence of a similar incident of child cruelty in which he was involved. It is argued that such proof constituted evidence of general bad character which was inadmissible under OCGA § 24-9-20 (b) since he had not then put his character in issue.

While it is true that evidence of other criminal acts is generally not permitted because it tends to place defendant's character in issue, evidence of other similar crimes may be admitted for limited purposes, such as showing identity, motive plan, scheme, bent of mind and course of conduct. Hamilton v. State, 239 Ga. 72, 75, 235 S.E.2d 515 (1977); Wallace v. State, 246 Ga. 738, 739(1), 273 S.E.2d 143 (1980). The court has adopted a liberal approach to such evidence in cases concerning child abuse and sexual offenses against children. Whited v. State, 173 Ga.App. 435 (2), 326 S.E.2d 803 (1985). This policy is particularly apt where such evidence is admitted for corroborative purposes. Smith v. State, 154 Ga.App. 497, 499(1), 268 S.E.2d 714 (1980). It applied here, where the four-year-old child was not called to testify.

There are two conditions precedent: first, evidence that the defendant was in fact the perpetrator of the independent crime; second, sufficient similarity or connection between the independent crime and the offense charged, so that proof of the former tends to prove the latter. State v. Johnson, 246 Ga. 654(1), 272 S.E.2d 321 (1980).

The state, over objection, introduced evidence concerning an incident approximately three months before, when defendant was the babysitter for a child who was taken to the hospital suffering from various injuries to her head and body. Defendant stated the child had fallen off the bed. It was expressly admitted for the limited purpose of showing defendant's knowledge, motive, intent, state of mind, or identity. These were in issue, as he had contended that someone else inflicted the injuries on the child in the instant case.

He urges there was no direct evidence positively identifying him as the perpetrator of a prior offense. But the absence of positive, direct testimony is not determinative of admissibility. Circumstantial evidence may be utilized to establish a prior similar offense and whether that evidence was sufficient was a matter for the jury to determine. Baxter v. State, 160 Ga.App. 181, 184(2), 286 S.E.2d 460 (1981). Accord Tutt v. State, 165 Ga.App. 715, 716(1), 302 S.E.2d 580 (1983); Childs v. State, 176 Ga.App. 549, 552(2), 336 S.E.2d 309 (1985). Thus, its admission was not error. Smith, supra.

2. Defendant contends the admission of photographs depicting the abused child's injuries violated the principles enunicated in Brown v. State, 250 Ga. 862, 866 (5), 302 S.E.2d 347 (1983) because the photographs were gruesome and inflammatory.

But as...