Wilcoxen v. State, 63795
| Decision Date | 02 July 1982 |
| Docket Number | No. 63795,63795 |
| Citation | 292 S.E.2d 905,162 Ga.App. 800 |
| Parties | WILCOXEN v. The STATE. |
| Court | Georgia Court of Appeals |
Robert D. Brooks, Catherine B. Lerow, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Wallace Speed, H. Allen Moye, Asst. Dist. Attys., Atlanta, for appellee.
Defendant was indicted in two counts for the offense of child molestation and one count of sodomy. The jury returned a verdict of guilty as to each count, and defendant was sentenced to serve a term in confinement. A motion for new trial was filed and denied. Defendant appeals. Held :
1. Certain physical evidence introduced at trial was obtained during the search of a motel room rented to one Francis N. Hardy (see Hardy v. State, 162 Ga.App. 797, 292 S.E.2d 902 [Case No. 63740 decided July 2, 1982] ). Defendant now contends that the search of the motel room on authority of a warrant and seizure of certain items therefrom was illegally conducted in violation of certain constitutional protections. However, defendant has failed to interpose a timely motion to suppress the items seized from the motel room rented to Francis N. Hardy in compliance with Code Ann. § 27-313 (Ga.L.1966, pp. 567, 571) and such failure amounts to a waiver of defendant's constitutional guaranty in respect to the search and seizure in question. Burnette v. State, 156 Ga.App. 441, 442(2), 275 S.E.2d 94.
Defendant also contends that the exhibits taken from the motel room were not relevant to the case against him. These exhibits consisted primarily of still and moving photographs of nude male teenagers, along with related photographic material and supplies. In many of the photographs the teenagers appear to be sexually aroused and in some photographs pairs of teenagers are shown engaged in mutual genital fondling. The state produced circumstantial evidence of the defendant's connection with the taking and retention of these photographs. These exhibits were properly admitted as they may have a tendency to show defendant's bent of mind toward the sexual activity with which he was charged. Felker v. State, 144 Ga.App. 458, 459, 241 S.E.2d 576; Watson v. State, 147 Ga.App. 847, 850(4), 250 S.E.2d 540. See also Garner v. State, 83 Ga.App. 178, 184(3), 63 S.E.2d 225. The jury may make an inference from the photographs in question as to the principal motive and intent of defendant. The trial court did not err in admitting into evidence the photographs in question.
2. Defendant contends that the trial court erred in its refusal to grant his motion to suppress evidence seized in a search of his home, arguing that the affidavit upon which the search warrant was predicated failed to establish the reliability of an informant. The affidavit shows that the affiant interviewed a named 12-year-old male child who told of being involved in acts of sodomy with defendant at his home on several occasions. This child indicated that photographs were taken of him in the nude on at least one of these occasions. Affiant was told by this child that about two weeks previously he had been in defendant's home and seen the camera used for this purpose.
The declarant was named, his statements based on personal observation, and the affidavit shows that the declarant was a victim of the crime. This satisfies the two-pronged Aguilar--Spinelli (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637) test as to a noninformant hearsay declarant. The declarant's reliability is established by the statement showing that declarant is a victim of the crime. Devier v. State, 247 Ga. 635, 638(5), 277 S.E.2d 729.
3. The trial court denied defendant's motion for a change of venue based on prejudicial pretrial publicity. As the testimony of the prospective jurors on voir dire shows that they were impartial and were not influenced by the pretrial publicity about the case we find no abuse on the part of the trial court in denying defendant's motion for a change of venue. Green v. State, 242 Ga. 261, 263(2), 249 S.E.2d 1; Johnson v. State, 242 Ga. 649, 655(7), 250 S.E.2d 394.
4. Through the testimony of its witnesses, as well as photographic exhibits, the state introduced evidence of other incidents of sexual misconduct between defendant and young males. Exceptions to the general rules governing the conditions under which evidence of other crimes is admissible to show plan, motive and intent have been applied in sex cases, the reasoning being that a tendency toward sexual deviancy, if relevant to the crime for which the defendant is...
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Flewelling v. State
...Ga.App. 213, 216(2), 464 S.E.2d 621 (1995); Peacock v. State, 170 Ga.App. 309, 310(1), 316 S.E.2d 864 (1984); Wilcoxen v. State, 162 Ga.App. 800, 801(2), 292 S.E.2d 905 (1982). See also Devier v. State, 247 Ga. 635, 638(5), 277 S.E.2d 729 (1981) (holding that the requirement to show the rel......
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Stamey v. State
...he was in possession of the material when these crimes were committed. Id., 160 Ga.App. 839, 287 S.E.2d 681; see Wilcoxen v. State, 162 Ga.App. 800(1), 292 S.E.2d 905. It would be illogical to say that such sexually depictive and explicit material has no relevance to the lustful disposition......
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State v. Jackson
...who were victims of the crime or whose statements to the authorities were against their penal interest. See Wilcoxen v. State, 162 Ga.App. 800(2), 292 S.E.2d 905 (1982); Hardy v. State, 162 Ga.App. 797(1), 292 S.E.2d 902 To some extent, the application of the Aguilar-Spinelli mode of analys......
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Tyler v. State
...to show a bent of mind toward similar sexual activity. Felker v. State, 144 Ga.App. 458, 459, 241 S.E.2d 576; accord Wilcoxen v. State, 162 Ga.App. 800 (1), 292 S.E.2d 905; Watson v. State, 147 Ga.App. 847, 850, 250 S.E.2d 540; Layne v. State, 147 Ga.App. 511, 512-513, 249 S.E.2d 324. We fi......