Weathersby v. State, S91A1284

• Citation: 262 Ga. 126,414 S.E.2d 200
• Decision Date: 04 March 1992
• Docket Number: No. S91A1284,S91A1284
• Parties: WEATHERSBY v. The STATE.
• Court: Georgia Supreme Court

Page 200

414 S.E.2d 200

262 Ga. 126

WEATHERSBY v. The STATE.

No. S91A1284.

Supreme Court of Georgia.

March 4, 1992.

Reconsideration Denied April 2, 1992.

Melodie H. Clayton, Austell, for Weathersby.

Thomas J. Charron, Dist. Atty., Rose L. Wing, Debra Halpern Bernes, Marietta, Nancy I. Jordan, Asst. Dist. Attys., Marietta, for State.

BENHAM, Justice.

Michael David Weathersby brings this appeal from his conviction in Cobb Superior Court of aggravated child molestation (3 counts), child molestation (3 counts), and cruelty to children (3 counts). He calls into question the sufficiency of evidence, the admissibility of evidence of similar transactions, the effectiveness of trial counsel, and the constitutionality of the Child Hearsay Statute.

1. The jury was authorized to find that during a five-year period from the time his stepdaughter-victim was in the second grade until the middle of her sixth grade year, Weathersby sexually and physically abused her and that the acts of abuse were in violation of statutes prohibiting child molestation (OCGA § 16-6-4(a)), aggravated child molestation (OCGA § 16-6-4(c)) and cruelty to children (OCGA § 16-5-70(b)). We find the evidence adduced at trial sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of all the charges against him. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court's admission into evidence of a purported similar transaction, a 1983 conviction for cruelty to children, impermissibly placed his character in evidence in violation of OCGA § 24-2-2. The general rule is

that in the trial of a crime, evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant's character into evidence. [Cits.]

State v. Johnson, 246 Ga. 654(1), 272 S.E.2d 321 (1980). Nevertheless, there are

several exceptions to that rule. Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct. In order for these independent acts to be admissible it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime. Dudley v. State, 179 Ga.App. 252(4), 345 S.E.2d 888 (1986). The similar transaction for which appellant entered a First Offender plea in 1983 involved abusive conduct by appellant toward the same victim, and occurred at the home of appellant and the victim. The facts of this case fit squarely within the exception to the rule as outlined above. Therefore, it was not error for the trial court to admit evidence of defendant's prior conviction.

Appellant also contends the trial court erred in failing to grant a mistrial or give curative instructions when a police officer testified that the defendant had been placed on probation following the first incident. Since the challenged testimony was directly responsive to defense counsel's question, the trial court did not err in failing to grant a mistrial or give curative instructions. Henson v. State, 168 Ga.App. 210(2), 308 S.E.2d 555 (1983).

3. Appellant's allegation of ineffective assistance of trial counsel centers around counsel's failure to object to certain hearsay testimony, failure to keep out expert testimony, and failure to challenge the constitutionality of the Child Hearsay Statute.

We must review appellant's claim of ineffective assistance of counsel under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted in Georgia in Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985):

First, the defendant must show that his counsel's performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense.

We have reviewed appellant's enumeration taking into consideration Strickland v. Washington, supra, and, in light of our resolution in Division 4 of the constitutional issue, we find no error in the trial court's determination that counsel was effective.

4. Lastly, appellant contends the Child Hearsay Statute is unconstitutional on its face and as applied. The statute in question provides as follows:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. [OCGA Sec. 24-3-16]

A. Relying on the Equal Protection Clause of the Georgia Constitution (Article I, Section I, Paragraph II), appellant contends OCGA § 24-3-16 is unconstitutional in that it allows the state to bolster the testimony of the victim but denies the same opportunity to the defendant.

Strikingly similar issues were decided adversely to appellant in this court's decisions in Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985), and Sims v. State, 260 Ga. 782, 399 S.E.2d 924 (1991). In addition, we reiterate our holding in Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982), that the state has a strong governmental interest in protecting children. This court's ruling in Denton v. Con-Way Express, Inc., 261 Ga. 41, 402 S.E.2d 269 (1991), has in no way diminished...