Morales v. State

• Decision Date: 28 September 1993
• Docket Number: No. A93A1140,A93A1140
• Citation: 210 Ga.App. 414,436 S.E.2d 528
• Parties: MORALES v. The STATE.
• Court: Georgia Court of Appeals

Page 528

436 S.E.2d 528

210 Ga.App. 414

MORALES v. The STATE.

No. A93A1140.

Court of Appeals of Georgia.

Sept. 28, 1993.

Corinne M. Mull-Milsteen, Decatur, for appellant.

J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Robert M. Coker, Anne G. Maseth, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted for child molestation (Count 1) and sexual battery (Count 2). The evidence adduced at a jury trial reveals that defendant, the 13-year-old victim's stepfather, entered the child's bedroom at about 2:00 in the morning; that defendant then placed his hand between the victim's legs and in the area of the child's genitals and that defendant fled when the child called out for her mother.

Defendant was found guilty of child molestation and not guilty of sexual battery. This appeal followed an order granting defendant's motion for out-of-time appeal. Held:

1. Defendant first contends the victim's uncorroborated testimony is insufficient to support the jury's finding that he is guilty of child molestation.

Contrary to defendant's assertion, there is evidence other than the victim's testimony supporting the jury's verdict. However, assuming the contrary, "[c]orroboration is not required for a conviction of child molestation. Scales v. State, 171 Ga.App 924(2) ." Weeks v. State, 187 Ga.App. 307(1), 308, 370 S.E.2d 344. In the case sub judice, the victim's testimony that defendant entered her bedroom and touched the child's private area and evidence that the victim reported the sexual assault immediately after the crime is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of child molestation. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Adams v. State, 186 Ga.App. 599(1), 367 S.E.2d 871.

2. Next, defendant contends the trial court erred in admitting evidence of an alleged similar transaction without first making a threshold determination of admissibility as required by Williams v. State, 261 Ga. 640, 409 S.E.2d 649.

(a) In Williams v. State, 261 Ga. 640, 642(2b), 409 S.E.2d 649, supra, the Supreme Court outlined the procedure to be followed before allowing evidence of prior criminal transactions. ¹ "First, the trial court must hold a hearing pursuant to Uniform Superior Court Rule 31.3(B) out of the presence of the jury. At this hearing the State must affirmatively show that (1) it seeks to introduce evidence of an independent crime or offense for an appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) the evidence is sufficient to establish that the accused committed the independent offense; and (3) there is sufficient similarity between the independent offense and the charged crime so that proof of the former tends to prove the latter. Williams, supra [261 Ga.] at 642(2)(b) . The trial court then must make and include in the record a determination that each of these elements has been satisfactorily shown by the State. Id." Little v. State, 202 Ga.App. 7(1), 413 S.E.2d 496.

In the case sub judice, the trial court conducted a hearing outside the presence of the jury and the State then offered proof that the victim's 19-year-old aunt, Lorena Guerrero, was sexually assaulted by defendant when she was 15 or 16 years of age. Specifically, Guerrero testified that she often visited her sister and defendant when they resided in Mexico and that during "one [such visit] when I asleep, I wake up because [defendant] is in the floor in the side [of my bed] on his knees ... and I--I think he's touched me because I feel the--the fingers cold on my legs, and I wake up, and I told him, what are you doing, and he say he's looking for something. And then in the morning this--the same night, late in the morning, about 5:00 or 6:00, he's touched me right here (indicating [her shoulder] ), but he's looking asleep, and I took it away, and I got in my cover and sat back, and then no more."

The trial court ruled that Guerrero's testimony was admissible as proof of a prior similar act and upon the return of the jury to the open courtroom instructed the jury the court was going to allow some testimony and that "the testimony ... is admitted for a very limited purpose and that purpose is to the extent, if any, that it shows the plan, scheme, motive, bent of mind, or course of conduct of the defendant, if at all it does, and that will be in your own judgment, and it is admitted for that purpose and that purpose only." However, the trial court did not make a determination on the record that each of the elements enunciated in Williams v. State, supra, for admission of such evidence was satisfactorily shown by the State. Nonetheless, we find no harmful error as "the evidence presented by the State at the out-of-court hearing ... was sufficient for the trial court to have concluded affirmatively on the record that each of the requirements of Williams, supra, had been satisfied. Compare Jefferson v. State, 206 Ga.App. 544(4), n. 1 (425 SE2d 915)." Wells v. State, 208 Ga.App. 298, 299(2a), 300, 430 S.E.2d 611. Specifically, Guerrero's testimony authorizes a finding that (1) the State sought to introduce evidence of the independent act, not to raise an improper inference as to defendant's character, but for the purpose of showing identity, scheme, course of conduct, motive and bent of mind; (2) that defendant committed the independent act and (3) that a sufficient similarity exists between the independent act and the crime charged so that the former tends to prove the latter. See Jefferson v. State, 206 Ga.App. 544, 547(4), 425 S.E.2d 915, supra.

(b) Defendant also contends the prior transaction was not similar to the incident wherein he allegedly molested the victim. We do not agree.

The evidence adduced at trial reveals that defendant assaulted Guerrero in a manner similar to the sexual assault of the victim. Both incidents involved young teen-aged girls related to defendant by marriage and both incidents occurred in defendant's home during early morning hours while other members of the household were sleeping. Further, both the victim and Guerrero were approached by defendant while in bed sleeping, both girls were awakened by defendant's hand touching their legs and defendant withdrew in both situations after the girls resisted. This proof "evinced a sufficient similarity between [the prior similar act and the crime charged] so as to have warranted admission of evidence concerning the former [act] at [defendant's] trial for committing the latter." Hickey v. State, 202 Ga.App. 636, 637, 415 S.E.2d 60.

3. In his final enumeration, defendant contends the trial court erred in charging the law of child molestation, arguing that the charge was "inflammatory, unnecessary, and [included] prejudicial vocabulary...."

Defense counsel stated that he had no problem with the suggested instruction on child molestation during the charge conference and he stated that he had no exceptions to the charge when the trial court asked for exceptions after instructions to the jury. Further, after the trial court recharged on the law of child molestation, sexual battery and criminal attempt to commit child molestation pursuant to the jury's request, defense counsel stated that he had no exception to the recharge. Under these circumstances, " 'defendant has waived the right to raise the issue (of error in the charge) on appeal.' Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980)." Busbee v. State, 205 Ga.App. 533, 423 S.E.2d 3.

Judgment affirmed.

POPE, C.J., BIRDSONG, P.J., and ANDREWS, JOHNSON and SMITH, JJ., concur.

BEASLEY, P.J., concurs in judgment only.

COOPER and BLACKBURN, JJ., concur in part and dissent in part.

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

I concur with Divisions 1 and 3 of the majority opinion. However, because the trial court did not follow the procedural requirements for admitting evidence of similar transactions provided in Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991), I believe the defendant's conviction must be reversed.

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