Chambers v. State ( 1987 )

Deen, Presiding Judge.

Larry Chambers appeals from a jury verdict of guilty of the offense of cruelty to a child. Chambers was the live-in boyfriend of Delores King, who had a three-year-old daughter named Brandy. Chambers came home one evening and found Brandy had been playing outside the house and was “dirty.” He took her into the bedroom and Ms. King heard Brandy crying. When she arrived at the bedroom door, she saw Chambers holding Brandy on the bed with his knee in her back and whipping her with a belt. She saw him strike Brandy “three or four” times. The State introduced photographs of Brandy showing bruises on her buttocks and legs caused by the belt. Ms. King testified that later that same day, Chambers bit Brandy on the lips. He told Ms. King it would make the child “tough.”

Ms. King had Brandy examined by Dr. Rose Barland, a pediatrician. Dr. Barland found bruises on Brandy’s buttocks and arms. She asked the child who did this to her. Brandy told her it was “her mom’s boyfriend.” Her notes did not reflect any bite marks. Katie Connell, sister of Ms. King, visited her and saw that Brandy had belt marks on her arms and face and asked Ms. King if she beat the child. Ms. King said that she had. In the presence of Chambers, “Brandy said, ‘No mama, you didn’t do it. Larry [Chambers] done it [sic].’ ” Chambers “never said a word. He just hung his head.” Ms. Connell saw “that place [Chambers] bit [Brandy] on the lip.” Diane Jones, another sister of Ms. King, visited King and asked Brandy about “those bite marks” and “she said Larry had bit her [sic].”

Chambers admitted that he had disciplined the child, but that he did so at the request of the mother. He also admitted that he and Ms. King took the child to Florida after Ms. King’s sisters had seen the results of his disciplining the child. After Ms. King called her family from Florida to let them know where she was, they returned to Georgia. After Ms. King and Brandy returned to Georgia, Chambers went to Louisiana for approximately one month. Held:

1. The trial court began its charge to the jury by advising that “the State, in this bill of indictment, accuses Larry Chambers with the offense of cruelty to a child on the date and under the circumstances set forth in this indictment.” The indictment, which went out with the jury during its deliberations, accused Chambers of maliciously causing “cruel physical and mental pain by beating her with a belt and biting her.” The trial court’s subsequent definition of cruelty to children as maliciously causing “a child under the age of eighteen cruel or excessive physical or mental pain” could not have confused or misled the jury from its assigned task of deciding whether Chambers had committed the offense of cruelty to children as charged in the indictment, viz., by maliciously causing cruel (as opposed to excessive) physical or mental pain. Chambers’s contention that the trial court failed to confine the consideration of the jury to the manner of commission of the offense as alleged in the indictment, accordingly, is without merit.

2. Chambers also contends that the trial court erred in admitting the testimony of a state witness concerning a statement made to her by Ms. King in the presence of Chambers. Virginia Morris, a sister of Ms. King, was permitted to testify, over objection, to a telephone conversation she had with Ms. King while the latter was in Florida. Morris testified that Chambers was “standing beside” Ms. King when King denied inflicting these injuries to her daughter.

We find no reversible error for a number of reasons. First, the statement made by Ms. King was made in the presence of Chambers. “A witness may testify as to what he saw and heard in the defendant’s presence.” Moore v. State, 240 Ga. 210, 212 (240 SE2d 68); accord Grindle v. State, 151 Ga. App. 164 (2) (259 SE2d 166); Broome v. State, 141 Ga. App. 538 (2) (233 SE2d 883). Secondly, this same evidence was testified to by Ms. King when she was a witness. Where the same evidence is admitted elsewhere, without objection, the objection is properly overruled. Tucker v. Mappin, 149 Ga. App. 847, 848 (256 SE2d 135). Last, but by no means the least, the declarant of the alleged hearsay was subsequently called as a witness to testify as to the subject matter discussed in the telephone conversation and appellant was afforded confrontation and cross-examination. See generally Green, Ga. Law of Evidence 497, 502, §§ 221, 224.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Carley and Beasley, JJ., concur. Beasley, J., also concurs specially. Birdsong, C. J., Sognier, Pope and Benham, JJ., dissent.