Willingham v. State
| Decision Date | 25 November 1998 |
| Docket Number | No. A98A1409.,A98A1409. |
| Parties | WILLINGHAM v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
James P. Brown, Jr., Lloyd J. Matthews, McDonough, for appellant.
Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.
A jury found Curtis Willingham guilty of child molestation and statutory rape and not guilty of aggravated child molestation. Willingham appeals, asserting that the trial court erred in allowing his character to be impermissibly placed into issue at trial and in not charging the jury on the defenses of accident and mistake of fact. Willingham also enumerates as error several instances of ineffective assistance of trial counsel. We affirm Willingham's conviction, but remand the ineffective assistance claim to the trial court for an evidentiary hearing.
1. Willingham first contends that the trial court should have instructed the jury to disregard evidence that placed his character in issue, specifically: (1) his daughter's (the victim's) statement that "[h]e told me and my mom that he had a dream he was sleeping with my cousin and he told me one day that he would love to have sex with her but for me not to be telling my mom"; (2) the investigating officer's testimony that Willingham told him, "I did have a dream of touching my niece"; and (3) his own statement elicited on cross- examination that, "I told my wife I had dreamed about my niece." However, because he did not object to these allegedly improper references to his character at trial, Willingham waived his right to review of this issue on appeal. (Citation and punctuation omitted.) Kapua v. State, 228 Ga.App. 193, 196(2), 491 S.E.2d 387 (1997); see also Basu v. State, 228 Ga.App. 591, 592-593(1), 492 S.E.2d 329 (1997) (). Accordingly, this contention is without merit.
In this same enumeration of error, Willingham also objects to the trial judge's statements during the sentencing phase which referred to Willingham's "dream" about his niece. This argument is patently different from that propounded in his enumeration of error that character evidence was wrongfully admitted at trial. "On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration." (Citations omitted.) Wright v. State, 228 Ga. App. 223, 491 S.E.2d 466 (1997).
2. In two enumerations, Willingham alleges as error the trial court's failure to instruct the jury, sua sponte, on the defenses of accident and mistake of fact. Upon reviewing these contentions together, we conclude that this argument lacks merit.
At trial, Willingham repeatedly denied committing the crimes of which he had been charged. However, he also stated that, even if he had committed them, it was because he might have confused his daughter with his wife while their daughter was sleeping in the bed with them. He testified that He could not state definitively whether he tried to initiate intercourse with his daughter, thinking it was his wife. He also denied ever having put his mouth on her vagina by accident. And finally, he testified that the incriminating statement he gave to the investigating officer, including his admission that "I pulled down her panties and I tried to put my dick between her legs" was a lie and that he only admitted to molesting and raping his daughter because the officer told him "You're not leaving [this interview] until you give me what I want."
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