Sanborn v. State, 61994
| Decision Date | 21 September 1981 |
| Docket Number | No. 61994,61994 |
| Citation | 159 Ga.App. 608,284 S.E.2d 110 |
| Parties | SANBORN v. The STATE. |
| Court | Georgia Court of Appeals |
James H. Whitmer, Gainesville, for appellant.
Jeff C. Wayne, Dist. Atty., Bruce L. Udolf, Asst. Dist. Atty., for appellee.
Sanborn was convicted of child molestation. On appeal, he contends the trial court erred (1) by allowing the victim's mother to testify about a conversation with the victim several hours after the incident; (2) by denying appellant's motion for a mistrial; (3) by denying appellant's motion for a new trial based on enumeration 1 above and the general grounds; and (4) by allowing the victim, a five year old girl, to testify as she failed to show an understanding of her oath to tell the truth.
1. Appellant contends it was error to permit the testimony of Mrs. Hembree (the victim's mother) as to what her daughter told her, as it was not part of the res gestae and did not fall within any other exception to the hearsay rule. We agreed that it was error to permit Mrs. Hembree to testify as to information she elicited from her daughter by intense questioning more than four hours after the incident occurred. The transcript shows clearly that the victim's declaration was not spontaneous or voluntary; on the contrary, the victim kept insisting that nothing happened except the defendant poured water on her, and her mother literally "dragged" the information from her daughter which formed the basis of this charge. Under such circumstances "[h]ardly can it be said that this declaration was spontaneous or voluntary in the sense traditionally contemplated by the res gestae rule." Clark v. State, 142 Ga.App. 851, 853(1), 237 S.E.2d 459 (1977).
The trial judge allowed the testimony of Mrs. Hembree on the basis that it showed the state of mind of the victim in this case, and instructed the jury that the testimony could not be considered for establishing the truth or falsity of the victim's statements. Under the provisions of Code Ann. § 38-302, when conversations are facts to explain conduct and ascertain motives, they are admissible. In the instant case the testimony of Mrs. Hembree did not explain her conduct or motives, and did not explain the of the victim; thus, it did not fall within any exception to the hearsay rule, or the circumstances authorizing its admission under the provisions of § 38-302. Further, the victim's state of mind was not relevant or necessary in determining whether...
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Parker v. State
...that the error did not contribute to the jury's verdict. Peebles v. State, 236 Ga. 93, 222 S.E.2d 376, supra; Sanborn v. State, 159 Ga.App. 608(1), 284 S.E.2d 110 (1981). "[A]s the admission of such testimony constituted harmful error, the judgment of the trial court must be reversed." Harp......
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Jones v. State, 63044
...conduct of the witness. See Decker v. The State, 139 Ga.App. 707, 711(8), 229 S.E.2d 520 (1976). Compare Sanborn v. The State, 159 Ga.App. 608, 284 S.E.2d 110 (1981). The jury was instructed accordingly. Compare Harrell v. The State, 241 Ga. 181, 186(2), 243 S.E.2d 890 (1978). We therefore ......
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Brantley v. State, 70257
...172 Ga.App. 891(1), 324 S.E.2d 824 (1984); Samples v. State, 169 Ga.App. 605(4), 314 S.E.2d 448 (1984). Compare Sanborn v. State, 159 Ga.App. 608(1), 284 S.E.2d 110 (1981), and 3. Defendant's remaining enumeration of error alleges that the trial court erred by not allowing defense counsel t......
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Painter v. State
...may be properly admitted under OCGA § 24-3-2 when they are facts "to explain conduct and ascertain motives...." Sanborn v. State, 159 Ga.App. 608(1), 284 S.E.2d 110 (1981). Here, the conversation between the victim and her older daughter was offered to explain the victim's conduct and her m......