Miller v. State

• Decision Date: 21 February 1983
• Docket Number: No. 64892,64892
• Citation: 299 S.E.2d 174,165 Ga.App. 487
• Court: Georgia Court of Appeals
• Parties: MILLER v. The STATE.

Page 174

299 S.E.2d 174

165 Ga.App. 487

MILLER v.The STATE.

No. 64892.

Court of Appeals of Georgia.

Feb. 21, 1983.

Thomas C. Sanders, Dallas, for appellant.

William A. Foster, III, Dist. Atty., Dallas, for appellee.

SHULMAN, Presiding Judge.

Appellant was convicted of child molestation and sentenced to 20 years' imprisonment.He now appeals, taking issue with the denial of several of his motions and with the admission of evidence of his prior convictions for sex offenses.We affirm.

1.In his first enumeration of error, appellant asserts that the trial court refused to grant a continuance.Appellant's counsel was notified of his appointment to the case on February 26, 1982, and the trial commenced on March 10.Appellant maintains that his attorney's trial schedule for that period of time prevented the attorney from having a reasonable amount of time in which to prepare appellant's defense.Specifically, appellant argues that his attorney had insufficient time to locate potential witnesses who might have impeached the testimony of the victim, or to locate the victims of the earlier crimes for which appellant was convicted who might have refuted his guilt.

"[M]otions for a continuance predicated on the basis that counsel had not had sufficient time to prepare for trial address themselves to the sound discretion of the trial court, and the ruling of the trial judge in denying a motion for a continuance will not be interfered with unless the court has abused its discretion in denying the motion.[Cits.]"Burnett v. State, 240 Ga. 681, 684, 242 S.E.2d 79;Bearden v. State, 159 Ga.App. 892(2), 285 S.E.2d 606."There is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require.A statement by counsel for the defendant that he has not had sufficient time to investigate and prepare the defense is a mere conclusion.Questions of this nature must of necessity be entrusted to the discretion of the trial judge.[Cits.]"Hill v. State, 161 Ga.App. 346, 287 S.E.2d 779.Our review of the case shows that few witnesses were involved, the issues were not complex, and there is no apparent lack of preparation or diligence on the part of defense counsel.We therefore conclude that the trial court did not abuse its discretion in denying the continuance request.Vereen v. State, 162 Ga.App. 1(1), 289 S.E.2d 766;McCannon v. State, 161 Ga.App. 685(1), 288 S.E.2d 663;Williams v. State, 148 Ga.App. 55(1), 250 S.E.2d 848.

2.Appellant next argues that certified copies of his indictments and sentences for earlier sex offenses involving children were improperly admitted into evidence.It is undisputed that "evidence of other crimes [committed by a defendant] may be admitted if there is sufficient similarity or connection between the other crimes and the crime charged that proof of the former tends to prove the latter."Ballweg v. State, 158 Ga.App. 576(2), 281 S.E.2d 319.This court has recently held that "[t]he sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible."Phelps v. State, 158 Ga.App. 219, 220, 279 S.E.2d 513.

The nine-year time span between the prior offenses and the one for which appellant was being tried is not a barrier to the admission of the evidence of the prior offenses.In another case involving the sexual molestation of a child, Copeland v. State, 160 Ga.App. 786(1, 4), 287 S.E.2d 120, we implicitly approved the introduction of evidence of a similar offense which occurred 12 years prior to the act for which the defendant was then on trial.Furthermore, we must note that appellant was imprisoned for seven and a half years of the nine-year hiatus between offenses, thereby limiting his opportunity to commit offenses similar to the offense with which he was...