St. John v. State, No. 73641

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Johnnie L. Caldwell, Jr., Dist. Atty., James E. Sherrill; McMURRAY
• Citation: 182 Ga.App. 861,357 S.E.2d 311
• Docket Number: No. 73641
• Decision Date: 14 May 1987
• Parties: ST. JOHN v. The STATE.

Page 311

357 S.E.2d 311 182 Ga.App. 861 ST. JOHN
v.
The STATE. No. 73641. Court of Appeals of Georgia. May 14, 1987.

[182 Ga.App. 864] Joseph J. Saia, Peachtree City, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., James E. Sherrill, J. David Fowler, Asst. Dist. Attys., for appellee.

[182 Ga.App. 861] McMURRAY, Presiding Judge.

Defendant was charged by six indictments with a total of eight (8) counts of cruelty to children and one count of child molestation. On the trial of the case, seven counts of cruelty to children were dismissed at the conclusion of the State's case. The jury returned a verdict of not guilty on the remaining count of cruelty to children and a verdict of guilty on the child molestation charge. Defendant appeals his conviction of child molestation. Held:

Page 312

1. Defendant enumerates as error the admission of testimony "as to alleged acts of child molestation and child abuse by the defendant which allegedly occurred before those acts which were charged in the indictment ..." The victim, who was 10 years of age at the time of the trial, testified that defendant lived with her, her mother and four brothers in Fayette County and previous to that in Spalding County and Ohio. The victim testified[182 Ga.App. 862] that on occasion defendant would come into her bedroom after she'd gone to bed and try to "hump" her, that is, that defendant would try to take her pants down, that he would get her pants part of the way down, place his penis between her legs and go up and down, sometimes ejaculating. The victim testified that defendant had done this in Fayette County, Spalding County and Ohio and that even though it was in the dark she recognized defendant's voice and was certain that it was defendant doing that.

The State's evidence clearly satisfies the two conditions precedent for the admission of similar transactions for limited purposes, such as showing identity, motive, plan, scheme, bent of mind and course of conduct. The State's evidence shows, first, that the defendant was in fact the perpetrator of the independent crime and, second, there was sufficient similarity or connection between the independent crime and the offense charged, so that proof of the former tends to prove the latter. See Miller v. State, 179 Ga.App. 100(1), 345 S.E.2d 647; Munn v. State, 179 Ga.App. 357(2), 346 S.E.2d 128; Williams v. State, 180 Ga.App. 227, 348 S.E.2d 747; Davis v. State, 180 Ga.App. 190, 191(2), 348 S.E.2d 730; Cunningham v. State, 255 Ga. 35, 37(4), 334 S.E.2d 656. This enumeration of error is without merit.

2. Defendant enumerates as error the denial of his motion to sever the offenses, arguing that the offenses of child molestation and cruelty to children were unrelated. "Offenses may be joined for trial when they are based on a series of acts connected together or on a series of acts constituting part of a single scheme or plan. Quick v. State, 166 Ga.App. 492, 494(3) (304 SE2d 916) (1983). If the offenses are joined for either reason the defendant does not have an automatic right of severance. Id. The trial judge has discretion concerning the severance of a trial when there is evidence of two or more offenses based on a series of connected acts or constituting [parts] of a single scheme or plan. Johnson v. State, 158 Ga.App. 398, 399(4) (280 SE2d 419) (1981)." Mathis v. State, 172 Ga.App. 314(2), 323 S.E.2d 227. Pretermitting any issue presented by the absence from the record of any ruling on defendant's motion to sever, we note that in the case sub judice the victim under each count of the...