Tanner v. State, A02A1906.
| Decision Date | 09 January 2003 |
| Docket Number | No. A02A1906.,A02A1906. |
| Citation | 576 S.E.2d 71,259 Ga. App. 94 |
| Parties | TANNER v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Kathleen J. Anderson, Athens, for appellant.
Timothy G. Madison, Dist. Atty., Robin R. Riggs, Asst. Dist. Atty., for appellee. MIKELL, Judge.
Benny Tanner was convicted of four counts of aggravated assault, one count of attempted child molestation, and two counts of possession of a firearm by a convicted felon. On appeal from the denial of his motion for new trial, Tanner contends that (1) the evidence was insufficient to support his convictions, (2) similar transaction evidence was erroneously admitted, (3) the state crime lab report should have been excluded from evidence, (4) trial counsel was ineffective, and (5) he was impermissibly denied the right to open and conclude the closing argument. Finding no error, we affirm.
1. Tanner first enumerates as error the trial court's denial of his motion for a directed verdict of acquittal. The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for determining the sufficiency of the evidence to support a conviction.1 We construe the evidence in a light most favorable to support the jury's verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.2
Construed in its proper light, the evidence shows that on June 6, 1999, Steve and Marie Selk held a high school graduation party for their son Nicholas. Tanner was invited to attend because he employed Nicholas and his younger brother, Jeffrey Selk. At the end of the party, Tanner, who planned to spend the night, entered a bedroom. An acquaintance of the Selks, 15-year-old M.N., went into the room a few minutes later.
M.N. testified that he sought out Tanner to discuss potential employment. When M.N. sat on the edge of the bed, Tanner put his feet on M.N.'s back and started rubbing it. Then Tanner wrapped his arms and legs around M.N., put his feet in the boy's crotch, asked where had he been all his life, and kissed M.N.'s back. M.N. escaped by telling Tanner he had to use the restroom. He informed Mr. Selk of the incident, and Mr. and Mrs. Selk and Nicholas confronted Tanner.
According to Mrs. Selk, Tanner denied the activity. Nicholas told him to reveal what had recently happened in a motel room. Tanner denied any improprieties. Mr. Selk asked him to leave, but Tanner's truck would not start. Mrs. Selk asked a friend, Shane Maine, to help jump start the battery.
Meanwhile, the tensions between Nicholas and Tanner escalated. Nicholas put his fist through one of the truck's windows and threatened to break the rest of them unless Tanner disclosed what happened in the motel room. Finally, the truck started, and Tanner began to drive away.
Nicholas warned his parents and Maine that Tanner had a gun. At that moment, Tanner fired four or five shots, according to Mrs. Selk. She testified that her husband and son hit the ground, and she was so scared that she froze still. One of the bullets hit the garage, ten feet from where she was standing. Mr. Selk testified that he and Nicholas were standing in the driveway in front of the garage when he heard at least four shots. Maine testified that he jumped into his truck and stretched out across the front seat.
Nicholas testified that Tanner fired six shots out of his window. When Nicholas saw the muzzle flash, he ducked in front of his mother's truck. The bullet passed within six inches of the roof of the vehicle. (a) A person commits the offense of aggravated assault when he assaults with a deadly weapon, which, when used offensively against a person, is likely to or actually does result in serious bodily injury.3 Tanner contends the verdict cannot be sustained because there was no evidence that he intended to commit a violent injury. This argument is meritless. 4 All four victims testified that they either heard or saw shots fired from Tanner's truck and were frightened as a result. This evidence authorized the jury to find beyond a reasonable doubt that the victims had been placed in reasonable apprehension of immediately receiving a violent injury. 5
(b) Similarly, the evidence is sufficient to support Tanner's conviction of attempted child molestation. "A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime."6 7 Child molestation is defined as doing "any immoral or indecent act to ... any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person."8 In this case, Tanner's actions in wrapping himself around M.N. so as to restrain the child's arms, rubbing and kissing the child's back, placing his feet in the child's crotch, and asking where the child had been all his life were inexplicable as lawful acts. Without question, the jury was authorized to conclude, beyond a reasonable doubt, that Tanner had taken substantial steps toward the commission of child molestation.9 The trial court did not err in denying the motion for directed verdict on this charge.
(c) Tanner's attack upon the sufficiency of the evidence to support his conviction of possession of a firearm by a convicted felon is predicated upon his assertion that none of the victims testified that they saw him shooting. The record belies this assertion. Nicholas testified that he saw the weapon emerge from the window of Tanner's truck, and then he saw the muzzle flash. Accordingly, the evidence was sufficient for the jury to find Tanner guilty of this offense beyond a reasonable doubt.10
2. Tanner enumerates as error the admission of similar transaction evidence over his objection that its prejudicial impact outweighed its probative value. Nicholas Selk testified that two to three weeks before his graduation party, he spent the night in a motel room with Tanner and Tanner's son near a job site. Nicholas went to sleep fully clothed. When he woke, Tanner's mouth was on his penis. Tanner had unzipped Nicholas's blue jeans and spread his boxers open. When Nicholas told Tanner to stop, he replied: "Why don't you just let me get my protein for the day[?]" Acknowledging that the evidence was "obviously extremely prejudicial to the defendant," the trial court nevertheless overruled Tanner's objection to the introduction of this evidence for the reason that an unsolicited act of sodomy occurring so close in time to the attempted child molestation was very probative of Tanner's state of mind. Tanner assigns error to this ruling.
The Supreme Court concluded that the similar transaction evidence was not overly prejudicial because the trial court gave detailed limiting instructions before the evidence was admitted and at the close of the case.14 Similarly, the trial court in the instant case properly instructed the jury, prior to admitting the evidence and at the close of the case. There was no abuse of discretion.
3. Tanner next contends that the trial court's admission of the state crime lab report into evidence violated the "continuing witness" rule. However, when objecting to the admission of the report at trial, Tanner stated as his sole reason that "the witness has been here to testify." "In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground."15 Pretermitting whether Tanner's stated reason for his objection at trial sufficed to invoke the ground asserted on appeal, the trial court did not err in allowing the crime lab report to go out with the jury. Indeed, this argument was rejected in Starks v. State:16
In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. It usually is applied to testimonial documentary evidence, such as affidavits and depositions. It has also been applied to written confessions, statements, and dying declarations. [However, t]he lab report ... was direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained. The proscription on the jury's possession of written testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case.17
In this case, the lab report reflected the results of tests run on three bullets and two...
To continue reading
Request your trial
-
Leaptrot v. State
...to arouse or satisfy the sexual desires of either the child or [himself]." OCGA §§ 16-4-1; 16-6-4(a). See also Tanner v. State, 259 Ga.App. 94, 96(1)(b), 576 S.E.2d 71 (2003). To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to......
-
Adams v. State
...v. State, 240 Ga.App. 346, 350(4), 523 S.E.2d 397 (1999) (citation and punctuation omitted). 13. Id. 14. See Tanner v. State, 259 Ga.App. 94, 97-98(3), 576 S.E.2d 71 (2003) (results of tests run on bullets and cartridge cases); Wilson v. State, 256 Ga.App. 741, 744(3), 569 S.E.2d 640 (2002)......
-
Rasch v. State
...writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. Tanner v. State, 259 Ga.App. 94, 98(3), 576 S.E.2d 71 (2003). The rule is usually applied to testimonial documentary evidence such as affidavits, depositions, written confession......
-
Sarratt v. State
...ELLINGTON and MIKELL, JJ., concur. 1. See Rogers v. State, 191 Ga.App. 855(1), 383 S.E.2d 331 (1989). 2. See Tanner v. State, 259 Ga.App. 94(1), 576 S.E.2d 71 (2003). 3. See Phillips v. State, 284 Ga.App. 683, 684(1)(a), 644 S.E.2d 535 (2007). 4. See Frady v. State, 245 Ga.App. 832(1)(a), 5......