Stonaker v. State
| Decision Date | 13 February 1975 |
| Docket Number | No. 49931,No. 3,49931,3 |
| Parties | Robert M. STONAKER v. The STATE |
| Court | Georgia Court of Appeals |
Weiner & Bazemore, Paul S. Weiner, Jonesboro, for appellant.
William H. Ison, Dist. Atty., Clarence L. Leathers, Asst. Dist. Atty., Jonesboro, for appellee.
Syllabus Opinion by the Court
Defendant was convicted of child molestation, and sentenced to serve 20 years-10 years in the penitentiary and 10 years on probation. Motion for new trial was denied, and defendant appeals. Held:
1. Defendant contends that because the child in an earlier hearing testified that the defendant kissed her abdomen several inches below the navel and well above the vaginal area, that the evidence was more consistent with battery than child molestation. But, the child did testify that the defendant's mouth was against her privates, and her credibility, including the possibility that she might have confused the times and incidents, was for determination by the jury. The jury is the sole and exclusive judge of the credibility of the witnesses. Reece v. State, 155 Ga. 350, 116 S.E. 631; Bell v. State, 164 Ga. 292, 138 S.E. 238. After verdict, a reviewing court must construe the evidence in favor of the judgment rendered. Bell v. State, 21 Ga.App. 788, 95 S.E. 270; Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146; Lee v. State, 126 Ga.App. 38, 39, 189 S.E.2d 872. There is sufficient evidence to support the verdict. Fulford v. State, 221 Ga. 257, 144 S.E.2d 370.
2. The court interrogated the child, and then made a definite finding that she understood the difference between right and wrong; and that she would be punished if she did not tell the truth, and that she swore to tell the truth, and that she was competent to testify. While he did not ask specifically whether the child understood the nature of an oath, the examination was sufficient to determine that she did. Frasier v. State, 143 Ga. 322, 85 S.E. 124; Ruff v. State, 132 Ga.App. 568, 208 S.E.2d 581, and cases cited in Division 2 thereof. The case of Warthen v. State, 11 Ga.App. 151, 152, 74 S.E. 894, relied upon by defendant, differs from this case, in that there the child swore she had no knowledge of the nature of an oath, whereas in the case sub judice, it was shown that the witness understood the meaning of taking an oath, and, that if she did not tell the truth she would be punished. Reece v. State, 155 Ga. 350, 116 S.E. 631, supra; Style v. State, 175 Ga. 95, 165 S.E. 7; Jones v. State, 219 Ga. 245, 132 S.E.2d 648; Lashley v. State, 13i Ga.App. 427(5), 208 S.E.2d 200. The enumeration is without merit.
3. Defendant enumerates error on the trial court's failure to charge the jury on the lesser offense of battery. In this connection he contends the child herself testified that she had sworn, in an earlier hearing, that defendant kissed her on her tummy (and not on her private parts); that she admitted her mother had talked with her since the first hearing and told her about the term 'private parts.' He contends if the jury believed her earlier version of the transaction, the greatest crime of which he could have been convicted was battery under Code Ann. § 26-1304, which is a misdemeanor; whereas he was actually convicted of child molestation, under Code Ann. § 26-2019, which carries a penalty of 20 years, and that he received the extreme penalty of 20 years, 10 years to be served in prison and 10 years on probation. In Bloodworth v. State, 216 Ga. 572, 573(4), 118 S.E.2d 374, defendant was convicted of rape and it was held reversible error for the trial court to fail to charge on the lesser offenses of assault and battery, assault with intent to rape, and child molestation, when there was evidence sufficient to warrant conviction of such lesser offenses. It is pointed out in Bloodworth supra, that where the only evidence warranting such charge on lesser offenses is the unsworn statement of defendant, no duty to charge arises unless a written request to charge is filed.
In the case sub judice there was sworn testimony, both as to the victim's testimony at the earlier hearings, and by the defendant himself, which both authorized and required a charge on the lesser offense of battery. Even if we disregard the contradictory testimony of the child at the first and second hearings, defendant himself testified under oath that he kissed the child on the 'tummy' only, without evil thought or intention. This testimony sufficiently raised the question and issue of whether defendant committed battery, and not child molestation. It is the duty of the trial judge to charge on a defense which is supported by sworn testimony in the case. Phenix Ins. Co. v. Hart, 112 Ga. 765(1), 38 S.E. 67; Chattanooga & Durham R. Co. v. Voils, 113 Ga. 361, 362, 38 S.E. 819; Investors' Syndicate v. Thompson, 172 Ga. 203(2b), 158 S.E. 20.
In Sutton v. State, 123 Ga. 125, 128, 51 S.E. 316, 317, the trial court was reversed in a conviction for assault with intent to rape because no charge was given on the lesser offense of assault and battery, and the court states: 'The trial judge should be careful to instruct the jury as to the law of every offense involved in the charge made by the indictment where, under any view of the evidence, the accused might be lawfully convicted of such an offense.' (Emphasis supplied.) Again, in Moore v. State, 151 Ga. 648, 649(5), 108 S.E. 47, 48, it is held: 'Where a charge of an offense of graver character includes (without additional averment) a minor offense, it is the duty of the trial judge to instruct the jury upon the law applicable to the lesser offense, where the evidence under any view thereof will authorize a conviction of the lesser offense . . .'
Provision is made by statute for the conviction of an offense included in the crime charged in the indictment. Code Ann. § 26-505. A careful reading of Code Ann. § 26-2019 as to child molestation, and of Code Ann. § 26-1304, as to battery, clearly shows the latter may be included in the former, where the offense is established by the same or less than all the facts; or of a less culpable mental state.
In view of the evidence and the authorities cited, it was error for the trial judge to fail to charge the jury on the lesser offense of battery.
4. Defendant contends the court erred in failing to charge, even without a request, that where the evidence and all reasonable deductions present two theories, one of guilt and the other consistent with innocence, the theory consistent with innocence must be accepted.
Defendant cites Patrick v. State, 75 Ga.App. 687, 44 S.E.2d 297, and Davis v. State, 13 Ga.App. 142, 78 S.E. 866. These cases do not deal with failure to charge, but with the sufficiency of evidence to convict when based upon circumstantial evidence. No case is cited, and we know of none, which holds that failure to charge on this theory is reversible error; and this is especially true where the verdict of guilty is supported, as in the case sub judice, by direct evidence. The little girl testified positively that defendant placed his mouth on her private parts; her credibility was for the jury; and simply because she had earlier given a different version, and because the defendant testified that he did not commit the act as she described it, can in no sense be said to present two opposing theories requiring the jury to accept defendant's version, which is consistent with his innocence of the crime of child molestation. To so hold would in effect mean that in every case where defendant and his witnesses support his contention of innocence, the jury must be charged that the jury must accept defendant's version, and disregard the state's witnesses and their version of his guilt. That simply is not the law. For a comprehensive discussion of this question see Nolen v. State, 124 Ga.App. 593, 594, 595, 184 S.E.2d 674, and cases there cited, and especially discussion on motion for rehearing at pages 596, 597, 184 S.E.2d 674, albeit there defendant's statement was not under oath.
5. Defendant contends that in the pre-sentencing phase of the case, a certified...
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