Morris v. State, 72548
| Decision Date | 28 May 1986 |
| Docket Number | No. 72548,72548 |
| Parties | MORRIS v. The STATE. |
| Court | Georgia Court of Appeals |
David B. Irwin, for appellant.
Robert F. Mumford, Dist. Atty., William F. Todd, Jr., Asst. Dist. Atty., for appellee.
Morris appeals his convictions of enticing a child for indecent purposes (OCGA § 16-6-5) and simple battery (OCGA § 16-5-23).
The 12-year-old victim testified that, while she was at a lake with her 2-year-old brother, a man grabbed her by the wrist, pulled her to her feet, looked at her "private place," turned her around, and stated, "This looks mighty fine." She said the man then showed her a prophylactic and told her to open it, which she refused to do. He then pushed her backward toward his car, a distance of approximately 65 paces. The victim kicked and scratched the assailant and was thereby able to free herself. She then picked up her brother and ran home. Her family subsequently reported the incident to the police, and the girl was thereafter able to identify the perpetrator's car. After a license check revealed that the car was registered to appellant, she identified him from a photographic display arranged by police. Appellant testified that he was not present at the lake on the day in question and that he had never seen the victim prior to trial. Held:
1. Appellant enumerates as error the trial court's refusal to charge the jury on the offense of criminal attempt. Howell v. State, 157 Ga.App. 451(4), 278 S.E.2d 43 (1981). A person commits the offense of enticing a child for indecent purposes when he solicits, entices, or takes any child under the age of 14 to any place for the purpose of child molestation or indecent acts. OCGA § 16-6-5. It is Peavy v. State, 159 Ga.App. 280, 282, 283 S.E.2d 346 (1981). Accordingly, there was no error in refusing to give appellant's requested charge on criminal attempt.
2. Appellant asserts that the trial court erroneously failed to charge the jury on the rebuttable presumptions that the acts of a sound person are wilful (OCGA § 16-2-4) and that a sound person intends the natural and probable consequences of his acts (OCGA § 16-2-5). It is difficult to fathom how the court's failure to give these charges could have been harmful to the appellant. In any event, no request was made of the trial court to charge the two provisions, nor did appellant except to the omission when asked by the court if there were any objections. "[A]ppellant has waived his right to enumerate error by failing to respond to the court's inquiry on any objections to the charge." White v. State, 243 Ga. 250, 251, 253 S.E.2d 694 (1979). See also Hill v. State, 246 Ga. 402, 408, 271 S.E.2d 802 (1980).
3. The appellant's fourth enumeration of error involves matters raised for the first time on appeal. It is well settled that issues not raised in the court below will not be considered by this court. Cherry v. State, 174 Ga.App. 145(5), 329 S.E.2d 580 (1985).
4. Appellant attacks his conviction for enticing a child based on the state's alleged failure to prove the asportation element of the crime. In Craighead v. State, 126 Ga.App. 300, 301, 190 S.E.2d 606 (1972), we defined the asportation element of the offense of theft as follows: "Any unlawful asportation, however slight ... is sufficient to show the 'taking' element." This same definition was later applied to the crime of kidnapping in Brown v. State, 132 Ga.App. 399, 402, 208 S.E.2d 183 (1974). In the present case, we hold that the pushing of the victim a distance of approximately 65 paces was amply sufficient to satisfy the asportation element of OCGA § 16-6-5. We further hold that the evidence was sufficient for a rational trier of fact to find appellant guilty of this offense beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
5. Appellant contends that OCGA § 16-6-5 is unconstitutional on equal protection grounds in that it does not require corroboration of the victim's testimony, whereas to prove the offense of statutory rape (OCGA § 16-6-3), corroboration is required. We note that OCGA § 16-6-5 has previously withstood constitutional attack on other grounds. See Barnes v. State, 244 Ga. 302, 305, 260 S.E.2d 40 (1979). The present attack is not subject to appellate review because it was...
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Fatora v. State
...203 S.E.2d 292. Consequently, the issues raised in this enumeration of error will not be considered by this court. Morris v. State, 179 Ga.App. 228, 229(3), 345 S.E.2d 686. 3. Next, defendant contends the trial court erred in failing to grant his motion to suppress the results of his polygr......
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