Smith v. State
| Decision Date | 11 June 1980 |
| Docket Number | No. 59586,59586 |
| Citation | 268 S.E.2d 714,154 Ga.App. 497 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Court of Appeals |
Erwin Mitchell, Neil Wester, Dalton, for appellant.
Stephen A. Williams, Dist. Atty., Dianne Cook, Asst. Dist. Atty., for appellee.
Defendant appeals her conviction for cruelty to a child.
The case arose in March 1979 when the mother of a three-and-a-half-year old boy picked him up from defendant's home, where he had been kept by defendant as a daily babysitter for nearly two months, and the mother noticed that the boy's face was bruised. The mother testified that defendant said her own two-year old son had hit the boy and that he had fallen a couple of times; that as she drove off with her son the boy said defendant had hit him and indicated his face; and that admitted photographs of the boy's face taken the day after she discovered the injury depicted his appearance at the time she got him from defendant and showed fingerprints on his face. The father testified that when he saw the boy somewhat later the same evening his whole face was red and, on questioning, the boy said defendant hit him. The boy did not testify but was exhibited to the jury. Defendant testified that the boy's injury resulted from falling and colliding with her son and denied inflicting the injuries.
Two physicians who had not seen the boy testified as experts from the photographs taken the day after the injury was discovered and in response to hypothetical questions gave their opinions that the injury was consistent with the mother's contention that the boy had been slapped and not consistent with defendant's that he had fallen and been struck by her son. Dr. Boggess, a third physician who examined the boy the same day his mother observed the injury, testified that the boy only had a bruise on his right cheek; that contrary to the mother's testimony the photographs did not depict the boy's appearance when he saw him nor any fingerprints on his cheek; and that the redness in the photographs looked like a viral infection to him. His opinion was that the injury was consistent with defendant's version of what had caused it. Evidence was also received which indicated circumstantially that another child cared for by defendant about a year earlier had been found with an injury to the face. Held :
1. Defendant contends that the trial court erred in admitting evidence of a previous incident of child abuse claimed to have been committed by her. Over objection, several witnesses testified about the incident. A sheriff's investigator testified that defendant had been reported on May 9, 1978 for physically abusing the Wymore child. The Wymore boy's father testified that he and his wife lived across the street from defendant and that defendant had babysat for their year-old son in February and March 1978; that they had stopped using defendant for a babysitter because they felt the boy was being beaten; that in the first week in April 1978 the boy had black and blue marks around his mouth and upper cheek which defendant said was caused by his falling; that on the following day the boy appeared reinjured in the same place and defendant said he fell again; that his wife took the boy to Dr. Tepper the next day; that he was never drunk when he picked up the boy from defendant and had not injured the boy himself.
Dr. Tepper, a pediatrician, testified that he saw the Wymore boy on May 3, 1978 when his mother brought him in; that the mother said the boy had been beaten or abused but the doctor did not state by whom the abuse was allegedly inflicted; that his examination revealed bruises on the inside of the mouth and lower lips; that the condition he observed was consistent with the explanation the mother gave him; and that he filed a report of child abuse. The mother did not testify.
After the foregoing was presented in the state's case in chief, defendant testified that she knew nothing of the Wymore complaint until March 14, 1979, when an investigator came to see her about the instant complaint; that she kept the Wymore boy for four months until the end of April 1978; that Wymore was usually drunk when he came to pick up the boy and because of his drinking she told the Wymores she did not want to babysit for them anymore; and that she did not abuse their son who had injured himself by falling on two consecutive days.
Before this evidence was admitted, and again during the charge, the trial court instructed the jury that the sole purpose of the evidence was to determine defendant's knowledge, motive, intent, state of mind, or identity concerning the offense being tried; that whether defendant committed the Wymore injuries was for the jury to determine, and if they believed she did, they were to consider the evidence for the stated limited purposes.
Hamilton v. State, 239 Ga. 72, 75, 235 S.E.2d 515, 517.
Defendant claims that the evidence is insufficient to identify her as the perpetrator of the independent crime. Circumstantial evidence may be used to establish a prior similar offense. Allanson v. State, 235 Ga. 584(1), 221 S.E.2d 3. Whether the circumstantial evidence was enough to show defendant to be the perpetrator was submitted to the jury with appropriate instructions. We find that the evidence was sufficient to support such a finding if the jury chose to make it.
Defendant also claims that the prejudicial effect of this evidence outweighed its relevance. We do not agree. Payne v. State, 233 Ga. 294, 312, 210 S.E.2d 775, 787). However, the evidence was highly relevant in determining whether defendant had committed the offense charged as there was "sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter." Hamilton v. State, 239 Ga. 72, 75, 235 S.E.2d 515, 517, supra. And, since there is seldom a competent witness other than the defendant to what occurred in a...
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