Gunter v. State , 163 Ga. App. 824 ( 1982 )

163 Ga. App. 824 (1982) 296 S.E.2d 622

GUNTER
v.
THE STATE.

64412.

Court of Appeals of Georgia.

Decided October 8, 1982.

Wesley Williams, for appellant.

V. D. Stockton, District Attorney, W. Brek Barker, Assistant District Attorney, for appellee.

CARLEY, Judge.

Appellant was indicted, tried and convicted of aggravated sodomy of a 12-year-old boy. He appeals from the judgment of conviction and sentence entered on the jury verdict.

1. After the call of the case, defense counsel moved for a continuance on the ground that appellant "was physically unable to proceed with the trial . . ." The trial court ordered a recess in order that appellant could be re-examined by the physician who had been treating him for "approximately five days." The physician testified that, based upon her reexamination of appellant, "he's improved some" and that, in her opinion, appellant would not "suffer any damage to be placed on trial." When further asked whether appellant was "really able to participate in his defense at this time," the physician responded: "I think that he is . . . I think that he probably has full recollection ability to participate in his defense." The trial court overruled the motion for a continuance, basing his ruling on the physician's testimony and his own observation of appellant. "Under the evidence here we cannot hold the trial court abused its discretion [in] denying the motion for continuance . . ." Walls v. State, 161 Ga. App. 235, 236 (291 SE2d 15) (1982).

2. Over objection that it impermissibly placed his character into issue, the state was allowed to introduce evidence of appellant's homosexuality. The evidence was admissible. Rini v. State, 236 Ga. 715, 716 (2) (225 SE2d 234) (1976). Furthermore, it appears that the evidence concerning appellant's sexual preference was in the form of his own post-arrest statement to the police. See Jones v. State, 161 Ga. App. 610, 612 (5) (288 SE2d 788) (1982). We find no error in the admission of this evidence.

3. Appellant asserts that the evidence failed to establish the venue of the crime in Union County where he was tried. Our review of the transcript demonstrates that appellant's assertion in this regard is without merit. See generally Johns v. State, 239 Ga. 681, 682 (1) (238 SE2d 372) (1977).

Judgment affirmed. Quillian, C. J., and Shulman, P. J., concur.