Oller v. State, 76449

• Decision Date: 13 July 1988
• Docket Number: No. 76449,76449
• Citation: 187 Ga.App. 818,371 S.E.2d 455
• Parties: OLLER v. The STATE.
• Court: Georgia Court of Appeals

Page 455

371 S.E.2d 455

187 Ga.App. 818

OLLER v. The STATE.

No. 76449.

Court of Appeals of Georgia.

July 13, 1988.

Mary S. Feeney, Glorida D. Reed, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Debra Benefield, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Appellant was convicted of one count of child molestation and sentenced to ten years confinement. Held:

1. The State has filed a motion to dismiss this appeal on the grounds that the notice of appeal was filed late. Appellant is an indigent defendant. He was sentenced and advised of his right to appeal on April 8, 1987, and this judgment was filed on April 9, 1987. Pursuant to the procedural provisions of OCGA § 5-6-38(a), appellant was required to file his notice of appeal within 30 days from the date of the appealable decision or judgment complained of. However, as May 9, 1987 fell on a Saturday, the filing time was extended by law to Monday, May 11, 1987. See e.g., OCGA § 1-3-1(d)(3); Grant v. State, 157 Ga.App. 390, 278 S.E.2d 53. On May 5, 1987, appellant who was then incarcerated in jail signed a letter, addressed to the trial judge, which although inartfully worded, clearly expressed his desire to appeal his criminal conviction. This letter was received on May 11, 1987, by the trial judge who filed it in the Office of the Clerk of Courts on the next day. First appellate counsel for the appellant was notified of her appointment on or about July 26, 1987. A formal notice of appeal was filed on August 5, 1987. On September 22, 1987, appellant filed a motion for out-of-time appeal, and a hearing on the motion was held on October 2, 1987. At the hearing the trial judge and appellant's counsel inserted into the record the chronological chain of events known to them regarding the filing of appellant's appeal. The trial judge observed that the appellant had dated his request for appeal within the 30-day time period, but that the letter had not reached the trial judge until after the period expired. The judge found this mailing delay to be inexplicable, but concluded that he was "not inclined" to charge the delay against the appellant. After considering the known chain of events and appellant's letter, the trial judge ordered that the appellant would be permitted to continue with his out-of-time appeal.

"The timely filing of a notice of appeal in accordance with the statutory requirement is essential to confer jurisdiction upon an appellate court." Mitchell v. State, 157 Ga.App. 181(1), 276 S.E.2d 864. However, the statutory time requirement of OCGA § 5-6-38 is to be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as specifically referred to and authorized by applicable statute. OCGA § 5-6-30. Further, it is sufficient if the provisions of OCGA § 5-6-38 are substantially complied with in the notification of appeal process. OCGA § 1-3-1(c).

As the trial judge concluded that any delay in forwarding appellant's letter requesting appeal would not be attributable to the fault of the indigent appellant, and as there exists no reason for this court to reverse this finding of the trial court, we are satisfied that appellant's letter would have reached the trial judge before expiration of the statutory appeal period but for the fault of some person or agency other than appellant. In Douglas v. California, 372 U.S. 353, 355-358, 83 S.Ct. 814, 815-817, 9 L.Ed.2d 811, the United States Supreme Court held that an indigent accused who desired to appeal was entitled to the assistance of counsel on appeal. This constitutional requirement comprehends that effective assistance of counsel will be timely provided. See generally, Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821; see also Conway v. State, 183 Ga.App. 573, 359 S.E.2d 438. "This right extends to every indigent accused who indicates his desire to appeal." McAuliffe v. Rutledge, 231 Ga. 1, 3, 200 S.E.2d 100. Further, we recognize that an unrepresented indigent accused, especially one who has been duly incarcerated following trial, is not always on the same footing, as the rich accused who is continuously represented by counsel of his own choosing, in drafting and submitting a notice of intent to appeal. In fact, one of the important functions of the appellate counsel is to timely "present an appeal in a form suitable for appellate consideration on the merits." Evitts, supra, 469 U.S. at 393, 105 S.Ct. at 834. Nevertheless, "[w]here the record shows that a criminal defendant voluntarily elects to forego a timely appeal following conviction, it is not error to deny his subsequent motion for an out-of-time appeal." (Emphasis supplied.) Westberry v. State, 257 Ga. 617, 362 S.E.2d 346.

In view of the existing state of the law, coupled with the operative facts of this case, we are satisfied that the trial judge did not abuse his discretion in granting appellant's motion for out-of-time appeal. Accordingly, appellee's motion to dismiss appeal is denied.

2. Appellant asserts that the trial court "committed reversible error by permitting the introduction and ... testimony of a crime committed by appellant in 1979 to be admitted into evidence."

Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. "However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged." Anderson v. State, 184 Ga.App. 293, 294, 361 S.E.2d 270. Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. See Rich v. State, 254 Ga. 11, 14, 325 S.E.2d 761 (evidence eleven years old not inadmissible). Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.

We are satisfied that sufficient evidence exists to establish that appellant was in fact the perpetrator of the 1979 crimes. As in Glass v. State, 181 Ga.App. 448, 352 S.E.2d 642, appellant offered no evidence to contradict that he was the person named in the 1979 documents. Concordance of name alone is some evidence of identity; and, in the absence of any denial by the appellant or other proof to the contrary, this concordance of name is sufficient to show that the appellant and the individual previously convicted were one and the same person. Id. In fact, appellant judicially admitted that he was the same person as named in the record of indictment and previous convictions, and that his signature did appear thereon. Appellant, however, did vigorously contest the factual validity of the documents, claiming they did not accurately reflect the offenses to which he had pled guilty. Appellant testified that he had pled guilty only to two counts of incest, and that he had been told that the child molestation and sodomy charges would be dropped. The documents were duly certified as a true and correct copy of the original "indictment, plea and sentence" of record and of file in the clerk's office by the deputy clerk. Deputy clerks of court are public officers and are presumed to discharge their duties properly, and their signatures speak with verity as to the same. Mash v. State, 168 Ga.App. 491(2), 309 S.E.2d 673. Thus, the authenticated records of the office of the clerk of courts likewise are presumed to speak with verity. Brock v. Baker, 128 Ga.App. 397(2), 196 S.E.2d 875. Accordingly, appellant's assertions did not impair the admissibility of the documents, but merely raised an issue which required the jury to weigh duly the evidence before it.

We also are satisfied that there exists a sufficient similarity of connection between the prior independent crimes and the offenses charged. The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible. Keeler v. State, 181 Ga.App. 208(2), 351 S.E.2d 731; Phelps v. State, 158 Ga.App. 219, 220(2), 279 S.E.2d 513. Moreover, we are satisfied that evidence of a conviction for incest with either a natural child or stepchild of unspecified age involves a lacivious motivation or bent of mind which generally will have some probative value in determining an accused's motivation or bent of mind in a subsequent trial for child molestation. "The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses." Johnson v. State, 242 Ga. 649(3), 250 S.E.2d 394. Whether that evidence is admissible, thus depends on the result obtained when applying the balancing test above discussed.

Based on the above, we find that the trial judge did not err in exercising his discretion to admit the evidence of appellant's 1979 offenses.

3. Appellant's second enumerated error is that the trial court "committed reversible error in overruling [appellant's] motion for a mistrial during the closing arguments by [the] Assistant District Attorney."

At the outset, we note that the content of the closing argument of the prosecuting attorney has not been included in the trial transcript. Normally, we would decline to review the enumeration of error on this ground. See e.g., Brown v. State, 223 Ga. 540(2), 156 S.E.2d 454 (where consideration of an enumerated error is dependent upon a transcript this court has nothing to review without such transcript); White v. State, 174 Ga.App. 531(2), 330 S.E.2d 760. Further, in such circumstances, when we...