Taylor v. State

• Decision Date: 28 October 1985
• Docket Number: No. 70459,70459
• Citation: 176 Ga.App. 567,336 S.E.2d 832
• Parties: TAYLOR v. The STATE.
• Court: Georgia Court of Appeals

Page 832

336 S.E.2d 832

176 Ga.App. 567

TAYLOR v. The STATE.

No. 70459.

Court of Appeals of Georgia.

Oct. 28, 1985.

Thomas H. Pittman, for appellant.

Harry D. Dixon, Jr., Dist. Atty., George Barnhill, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Defendant appeals his conviction for the offense of child molestation.

1. (a) Did the state fail to establish venue? The victim, a 6-year-old child, was kept by the defendant's mother Mrs. Jenkins at her home while the child's mother worked. The mother testified that Mrs. Jenkins lived on "Route 1 ... going towards Douglas." When asked "is that inside the county line" she responded "I think so." The victim indicated that the defendant "bothered" her while at Mrs. Jenkins'. A witness related he had a business located "West on 32, Alma" and Mrs. Jenkins lived about a block away. Mrs. Jenkins stated she resided in Bacon County on Highway 32 and that on August 15, 1983 (the day of the alleged incident) she sat on the front porch with the kids "all the time" defendant was there.

Circumstantial, as well as direct evidence, may be used to establish venue. Loftin v. State, 230 Ga. 92, 94(2), 195 S.E.2d 402 (1973). Where there is no conflicting evidence, slight evidence is sufficient. Aldridge v. State, 236 Ga. 773, 774(1), 225 S.E.2d 421 (1976). Since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it. Alderman v. State, 241 Ga. 496, 509(5), 246 S.E.2d 642 (1978). Accord Jones v. State, 245 Ga. 592, 596(2), 266 S.E.2d 201 (1980).

Here as in McCord v. State, 248 Ga. 765, 766, 285 S.E.2d 724 (1982), the showing that the Jenkins residence was in Bacon County and that the acts complained of occurred there would enable the jury to reasonably find venue in Bacon County.

(b) The indictment alleged the offense occurred on August 15, 1983. Did the evidence fail to show this?

The proof, viewed in its entirety, clearly demonstrated that the offense occurred on this date. There was evidence that the offense was committed on August 15 "of this year," the case having been tried in 1983. The child was taken to the doctor on the same day she was molested and the doctor testified as to her visit on August 15, 1983. The defendant's mother, testifying on his behalf, related her actions and the events of August 15, 1983.

All of that aside, "[w]here the date alleged in the indictment is not a material element of the offense, the state may prove the offense as of any date within the statute of limitation." Arnold v. State, 167 Ga.App. 720(1), 307 S.E.2d 526 (1983). The offense was clearly shown to have been within four years. McCord v. State, 248 Ga. 765, 766, 285 S.E.2d 724, supra.

(c) Was there a fatal variance between the allegations and the proof?

The rule that the allegations and proof must correspond is based on the requirements "(1) that the accused shall be definitely informed as to the charges against him so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense." Dobbs v. State, 235 Ga. 800, 802(3), 221 S.E.2d 576 (1976); McCrary v. State, 252 Ga. 521, 523, 314 S.E.2d 662 (1984).

Defendant has not specified the variance complained of, and nothing appears which would subject defendant to the possibility of either danger.

(d) Was the evidence sufficient so that a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt? Yes.

2. Did the court err in failing to charge on good character? Although defendant contends there was evidence of his good character and the trial court should have charged on that principle, he made no written request. Nor did he ask for it when he had an opportunity to think about it overnight and the court recharged the jury the next morning at its request on some other matters. Then when the court solicited exceptions to the charge, he had none and did not reserve the right to later raise any. Jackson v. State, 246 Ga. 459, 460, 271 S.E.2d 855 (1980); Morton v. State, 168 Ga.App. 18, 20(4), 308 S.E.2d 41 (1983).

Barring exceptional circumstances there must be a written request to charge on principles of law regarding good character; otherwise the failure to do so will not require a new trial. Braddy v. State, 172 Ga.App. 386, 388(2), 323 S.E.2d 219 (1984); Spear v. State, 230 Ga. 74, 76 195 S.E.2d 397 (1973).

It is argued there were exceptional circumstances here warranting a new trial just as in Seymour v. State, 102 Ga. 803, 30 S.E. 263 (1897). In that case, however, the Supreme Court granted a new trial pursuant to a statutory power "which we rarely exercise but which, in our judgment, was intended to meet just such cases as the present." Id. at 806, 30 S.E. 263. What was of concern to the court and gave the case its exceptional quality were two factors. One was that the sole evidence of rape was the girl's testimony which, "after a careful and deliberate study of," the court considered to be "at most, a very weak and unsatisfactory case against the accused...." The second was that good character was the sole defense. Those dual factors, under the particular circumstances of that case, is what led the court to "feel" that the accused did not have a fair trial.

The coexistence of the two factors there and the "peculiar circumstances" of the case were recognized as explaining the Seymour reversal in Wright v. State, 93 Ga.App. 542, 92 S.E.2d 229 (1956), and Riceman v. State, 166 Ga.App. 825, 826(1), 305 S.E.2d 595 (1983).

Here, however, those factors do not exist so as to require an exception to the application of the general rule. The testimony of the child was corroborated by the res gestae nature of the child's report to the mother, the examining doctor's findings and opinion, and the other child's similar experience at the hand of defendant. The evidence was not "weak and unsatisfactory." As to the second factor, good character was not the sole defense. In addition to relying on his general reputation in the community to create a reasonable doubt that he would commit such an act, defendant offered evidence of the sheer unlikelihood that he did such a thing. This matter was submitted through the testimony of the mothers of a number of other little girls he would have had the same access to and who never indicated any molesting by him. In addition, he denied committing a criminal act, stating both that he did not violate her as alleged at all and that if he did touch her, it was in innocent play and not with any criminal intent. Finally, the defense included the theory that if she was injured, it was caused by something or someone other than defendant. Thus, there is no reason to conclude that this is an exceptional case requiring the treatment given Seymour. See Riceman v. State, supra.

3. Did the court err "in sustaining the State's objection to, and instructing the jury to disregard, the testimony of Mary Harrell relative to the good character of defendant?"

As stated above, the defense was that the child was not telling the truth, that defendant did not touch the little girl at all, and that if he did while playing with the children in a normal way, it was innocent and not with the specific criminal intent of arousing and satisfying his sexual desires. Thus, if she was injured, it was from some cause other than himself. He sought to prove this by bringing in the mothers of other young girls who were regularly in the care of his mother during his frequent visits there. From these three witnesses, each of whom had several children, he elicited that none ever had any trouble relating to defendant, thus inferring that he never criminally molested their young daughters and raising the inference that it was therefore unbelievable he committed a criminal act on the alleged victim. He also produced Ms. Harrell, the woman he was then living with and with whom he had lived for the past three years and had known for five or six years. She testified that her two young daughters lived with them, that she never had any bad reports from her children about his behavior towards them either at home or when they were being kept at his mothers, where he often went, and that she would not hesitate leaving them there.

Defendant did not attempt to prove his reputation for good general character in the community through the three mothers but did broach that subject with Ms. Harrell. However, he did not address the subject in the manner provided by law. He asked whether she knew his character, which she answered affirmatively, and he asked if his character was good or bad, which she answered "Good." On cross-examination it was reiterated that she was saying it was good, that it was her opinion, which she defended by saying he had never been in any trouble. When asked whether that was what "everybody says about him in the community," she said she did not know. The state moved to strike her testimony concerning good character because it was her opinion of his character and not the opinion of the community, i.e., she had not testified about his reputation. Defense counsel, on the other hand, argued that she should be able to give her opinion of his character because it was based not only on her own observations but also on what she gathered from others while living with him in the community. The court struck the testimony as to defendant's character and instructed the jury to disregard it, explaining to counsel that this was not the proper way to prove good character. The court offered guidance: "The character of a defendant is not established by her own personal knowledge. It's established by general reputation in the community." Defense counsel took the cue and conducted redirect examination of Ms. Harrell on this subject and did elicit from her that she never heard any of the people he works with or who come to the...