Remine v. State

• Decision Date: 12 February 1992
• Docket Number: No. A91A1858,A91A1858
• Citation: Remine v. State, 416 S.E.2d 326, 203 Ga.App. 30 (Ga. App. 1992)
• Parties: REMINE v. The STATE.
• Court: Georgia Court of Appeals

Page 326

416 S.E.2d 326

203 Ga.App. 30

REMINE v. The STATE.

No. A91A1858.

Court of Appeals of Georgia.

Feb. 12, 1992.

Reconsideration Denied Feb. 24, 1992.

Certiorari Denied April 9, 1992.

Alden W. Snead, J.M. Raffauf, for appellant.

J. David McDade, Dist. Atty., Lois W. Gerstenberger, Asst. Dist. Atty., for appellee.

ARNOLD SHULMAN, Judge, Sitting by Designation.

The appellant was tried before a jury and found guilty on an indictment charging that he had committed the offense of cruelty to children by maliciously causing his then seven-year-old son "cruel and excessive physical and mental pain." See OCGA § 16-5-70(b). He brings this appeal from the denial of his motion for new trial.

The evidence established without dispute that after causing the child to be awakened and brought before him on the night in question, the appellant beat him with a metal studded belt for a period of 15 to 20 minutes as punishment for perceived misbehavior which had occurred during the day, inflicting severe bruises on his lower back, buttocks and legs. The jury was presented with photographs of the bruises, and the police officer who took these photographs testified that in his 15 years on the police force he had never before seen such severe bruises caused by a whipping. A protective services worker from the Department of Family & Children Services who had observed the child some two weeks later at a hospital emergency room offered similar testimony concerning the severity of the bruises. She further testified that when she saw the child in the emergency room he was "rolling around on the [examining] table" in a "trance-type" state, screaming, "Daddy, stop; daddy please don't, don't hit me; daddy please don't hit me again."

1. We hold that a rational trier of fact could reasonably have concluded beyond a reasonable doubt from the evidence presented at trial that the appellant had maliciously caused the child cruel or excessive physical or mental pain in violation of OCGA § 16-5-70. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The appellant contends that the trial court erred in allowing the child's mental health counselor, a clinical social worker with a masters degree in psychiatric social work, to testify, over the appellant's objection and motion for mistrial, that in his opinion the victim had suffered "excessive physical pain and emotional abuse." We agree that this testimony should not have been admitted.

"[A]n expert may not testify as to his opinion as to the existence vel non of a fact ... unless the inference to be drawn from facts in evidence is beyond the ken of the jurors--that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing--from facts in evidence--such an inference for themselves. [Cit.]" Allison v. State, 256 Ga. 851, 853(5), 353 S.E.2d 805 (1987). "[W]here (a) the path from evidence to conclusion is not 'shrouded in the mystery of professional skill or knowledge,' and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. [Cits.]" Williams v. State, 254 Ga. 508(2), 510, 330 S.E.2d 353 (1985). Accord Nichols v. State, 177 Ga.App. 689, 692, 340 S.E.2d 654 (1986). Thus, while it is permissible, for example, to introduce expert opinion testimony to the effect that the alleged victim in a child molestation case has exhibited behavioral characteristics consistent with those of a sexually abused child, see Holsey v. State, 199 Ga.App. 782, 784(7), 406 S.E.2d 127 (1991), it is not permissible to present expert opinion testimony to the effect that the child has in fact been abused. See Allison v. State, supra; Sims v. State, 260 Ga. 782(4), 399 S.E.2d 924 (1991).

The jury in the present case was presented with extensive evidence as to the severity of the beating and the extent of the child's resulting injuries. We hold that it was not beyond the ken of the average juror to determine from this evidence whether the appellant had caused the child excessive physical or mental pain. Accord Cohn v. State, 186 Ga.App. 816(3), 368 S.E.2d 572 (1988). Compare Boyce v. State, 198 Ga.App. 371(2), 401 S.E.2d 578 (1991); In the Interest of S.T., 201 Ga.App. 37, 38(1), 410 S.E.2d 312 (1991). However, we further hold that in the context of the evidence as a whole, it is highly probable that the testimony in question did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976). The appellant presented no evidence whatever tending to controvert the state's evidence concerning either the severity of the beating or its effect on the child's mental and emotional health but instead relied solely on his counsel's argument that he had not acted maliciously but had simply administered "what he thought was correct discipline." "Having carefully examined the trial transcript, we are satisfied that the accused has not been prejudiced by the introduction into evidence of the ... expert testimony discussed above...." Palmer v. State, 186 Ga.App. 892, 901, 369 S.E.2d 38 (1988).

3. The appellant contends that the trial court erred in denying his request for an in camera inspection of the district attorney's investigator's file regarding the case. The trial court denied the request on the ground that it was untimely in that it was not made until after the jury had been selected and the opening arguments delivered. We find no error. See generally Tribble v. State, 248 Ga. 274(1), 280 S.E.2d 352 (1981).

4. In his fourth enumeration of error the appellant contends that the trial court "violated due process in commenting and charging on the evidence to the effect that there were similar transactions when, in fact, there were not, and ...