Miller v. State

• Citation: 486 S.E.2d 911,226 Ga.App. 509
• Decision Date: 09 May 1997
• Docket Number: No. A97A1378,A97A1378
• Parties: , 97 FCDR 1958 MILLER v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 911

486 S.E.2d 911

226 Ga.App. 509, 97 FCDR 1958

MILLER v. The STATE.

No. A97A1378.

Court of Appeals of Georgia.

May 9, 1997.

Reconsideration Denied

May 21, 1997.

Glyndon C. Pruitt, Buford, for appellant.

Michael Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

William Jack Miller appeals the judgment entered upon a Stephens County jury verdict finding appellant guilty of rape and child molestation. We affirm.

Viewed in a light most favorable to the verdict, the evidence of record shows that during a two-week spring vacation in 1992, appellant asked his ten-year-old granddaughter into his bedroom and gave her a Barbie doll. He closed and locked the bedroom door. Appellant told his granddaughter that he had "another present" for her and removed the clothing from the lower half of his body, as well as the clothing from the lower half of the victim's body. Appellant put the child on his bed and got on top of her; he fondled her "neck," breasts, and touched her vaginal area. He then penetrated the victim's vagina with his penis. Appellant hurt the victim. She "had trouble walking for two to three days," and "it felt like ... a stick had been put up side (sic) of her."

The victim made outcry to her elementary school counselor, to her mother, and subsequently to a Department of Family & Children Services worker and to the police, all of whom testified at trial as to the victim's consistent statements to them regarding the appellant's sexual acts against her as reflected above. The victim also testified at trial as to appellant's acts of molestation and rape. In addition, the State introduced a sexually explicit picture that the victim had drawn during her first outcry to the school guidance counselor; the picture detailed her rape by the appellant. The cartoon-like picture contained the caption "This is the things his [sic] done to me!" and included dialogue balloons illustrating a conversation between appellant and the victim during the sex act, wherein the victim was crying "Don't," and the appellant was responding "Don't tell this is fun this is our game [sic]."

1. Appellant first challenges the sufficiency of the evidence to support the verdict. We find the evidence sufficient for a rational trier of fact to have found the appellant guilty of the offenses of rape and child molestation. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Any conflicts in the evidence regarding the date the offenses were alleged to have occurred do not alter this result. Where the date alleged in the indictment is not a material element of the offense, the State may prove the offense as of any date within the statute of limitation. ¹ Wade v. State, 147 Ga.App. 511, 249 S.E.2d 323 (1978); Decker v. State, 139 Ga.App. 707, 229 S.E.2d 520 (1976); Jefferson v. State, 136 Ga.App. 63, 220 S.E.2d 71 (1975). While in this case there was conflicting evidence as to whether the events in question occurred in May 1991 or in May 1992, such testimony sufficiently placed the date of the charged offenses within the seven-year limitation period. OCGA § 17-3-1(b), (c); see Caldwell v. State, 139 Ga.App. 279, 228 S.E.2d 219 (1976); Decker, supra.

2. Next, appellant contends that the trial court erred in permitting the victim to testify about prior acts of rape appellant had committed upon her. Appellant styles these occurrences as "similar transactions" and contends that the State did not provide notice pursuant to Uniform Superior Court Rule ("USCR") 31.3, nor was a hearing conducted pursuant to that rule.

Specifically, appellant protests that portion of the victim's testimony in the midst of direct examination wherein the following dialogue occurred: Prosecutor: "Where did that [rape] take place?" Victim: "At his house." Prosecutor: "Did it take place in a particular room in his house?" Victim: "Yes." Prosecutor: "Where?" Victim: "In his bedroom." Prosecutor: "Was it on the floor or in the bed or where?" Victim: "On the bed." Prosecutor: "How many occasions--how many different times did that [rape] happen?" Victim: "I can't really count how many times but--" Prosecutor: "Was it more than one time?" Victim: "Yes, we had lived with him." Prosecutor: "Did the same thing happen each time?" Victim: "Yes." Prosecutor: "Did grandpa [appellant] do this in the same place each time?" Victim: "Yes."

Thereafter, appellant objected, contending that prior testimony from another witness showed that the victim and her mother had lived with appellant when the victim was four years old, six years earlier than the offenses alleged in the indictment; thus, appellant argued, the victim's references to prior acts that had occurred when she had "lived with" the appellant must be similar transactions, and a mistrial was required.

Upon review of this testimony, it is unclear to this Court that the victim was referring to a time period other than the spring vacation in which the indicted acts occurred. However, even if such interpretation is possible, an "indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the [appropriate] period of limitation, including the date alleged." ² Grantham v. State, 117 Ga.App. 444(1), 160 S.E.2d 676 (1968); see also Pittman v. State, 179 Ga.App. 760(1), 348 S.E.2d 107 (1986). "[T]he State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period. [Cits.]" Grantham, supra at 444(1), 160 S.E.2d 676; accordPittman, supra at 760, 348 S.E.2d 107. See also State v. Stamey, 211 Ga.App. 837, 838(1), 440 S.E.2d 725 (1994); Nolton v. State, 196 Ga.App. 690, 691(1), 396 S.E.2d 605 (1990); Garrett v. State, 188 Ga.App. 176, 177(2), 372 S.E.2d 506 (1988); Bowman v. State, 184 Ga.App. 197(2), 361 S.E.2d 58 (1987).

Further, where molestation, incest, or even rape occurs repeatedly over the period of the statute of limitations against the same victim in the same way, proof of such occurrence is not a prior similar offense but constitutes proof of the offense charged, and thus excludes such acts from the ambit of the rules governing the admission of similar transaction evidence. ³ Robinson v. State, 202 Ga.App. 576, 577(1), 415 S.E.2d 21 (1992). See also Garrett, supra at 177, 372 S.E.2d 506; Bowman, supra at 197, 361 S.E.2d 58; Pittman, supra at 760, 348 S.E.2d 107; Worth v. State, 183 Ga.App. 68, 70(2), 358 S.E.2d 251 (1987); Caldwell, supra at 281, 228 S.E.2d 219. The trial court did not err in permitting the testimony about which appellant complains.

3. In his third enumeration of error, appellant objects to the trial court's charge to the jury on the law regarding similar transaction evidence, which instruction limited the jury's consideration of such evidence to the demonstration of appellant's "state of mind." This contention is meritless.

Appellant voluntarily put his character at issue by calling a character witness and asking the statutory questions pursuant to OCGA § 24-9-84. Evidence of prior acts was then admitted into evidence in the case sub judice; both of appellant's adult daughters testified that, as children, appellant had raped them.

It is important to note that before this Court, appellant does not contest the admissibility of such testimony, but argues only that such evidence was not "similar transaction evidence" so as to support a jury charge thereon. Appellant contends that one daughter's testimony (the victim's aunt) was admitted for a "distinct purpose unrelated to similar transaction protocol," and the other daughter's testimony (the victim's mother) was introduced "in rebuttal of [appellant's] direct testimony" that he had never touched his daughters. Appellant argues that, as there was no proper evidence of similar transactions in the case sub judice, the giving of a jury charge thereon constituted reversible error. We disagree for several reasons.

First, during trial, appellant repeatedly referred to the testimony from the victim's aunt and mother as "similar transaction" evidence and cannot now complain because the trial court agreed with him and, accordingly, charged the jury on the law regarding similar transactions. A party cannot complain of error created by his own conduct. Bevil v. State, 220 Ga.App. 1, 3(7)(b), 467 S.E.2d 586 (1996).

Next, following appellant's introduction of his character into evidence, the testimony of the victim's mother and aunt that appellant had raped them when they were children was admitted as evidence of prior similar acts, which admission supported the giving of a similar transaction jury charge. "[P]rior act evidence will be inadmissible because evidence of the accused's character is not admissible unless and until the accused puts his character in evidence. McCormick on Evidence, 4th Edition, § 190." (Emphasis supplied.) Barrett v. State, 263 Ga. 533, 534(2), 436 S.E.2d 480 (1993). However, "[i]f upon the trial of the case the defense places the defendant's character in issue, evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above [notice and hearing] provisions notwithstanding." USCR 31.3(D). In the case before us, the defense's placement of appellant's character in evidence acted as a waiver of the character issue and made admissible the testimony of appellant's daughters regarding his prior similar sexual acts against them as children. Such testimony was presented in accordance with the rules of evidence pursuant to Title 24 of the Official Code of Georgia. See OCGA §§...