Altman v. State

495 S.E.2d 106 (1997) 229 Ga. 2474

ALTMAN
v.
The STATE.

No. A97A2474.

Court of Appeals of Georgia.

December 8, 1997.

Mary P. Melton, La Fayette, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth A. Overcamp, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

James R. Altman appeals his conviction of sexual battery and child molestation of his granddaughter. He enumerates six errors. Held:

1. Appellant contends the trial court erred by admitting testimony of Ms. Nelie "Granny" Gillis that bolstered the victim's credibility. Gillis testified to prior events that at least partially corroborated the victim's testimony; during her testimony she volunteered statements in the presence of the jury to the effect that everyone knew her, she wanted to tell the truth and would not lie, and that the victim would never lie to her about anything. There was no timely and specific objection made at trial to this testimony on the grounds of improper bolstering. Accordingly, this issue is not preserved for appellate review. Simms v. State, 223 Ga.App. 330, 331(1), 477 S.E.2d 628; Ray v. State, 187 Ga.App. 451, 452, 370 S.E.2d 629.

2. Appellant contends the trial court erred in allowing certain testimony of prior sexual conduct of appellant by Ms. Chapman, another granddaughter of appellant, to be heard by the jury. Appellant particularly asserts that the State failed to comply with the requirements of Uniform Superior Court Rule 31.3(B) and Williams v. State, 261 Ga. 640, 409 S.E.2d 649. But compare King v. State, 264 Ga. 502, 503(2), 448 S.E.2d 362; Grier v. State, 217 Ga.App. 409, 411(2), 458 S.E.2d 139; Chezem v. State, 199 Ga.App. 869, 870-872(3), 406 S.E.2d 522; compare also Lucas v. State, 215 Ga.App. 293, 294-295(2), 450 S.E.2d 313.

Examination of the trial transcript reveals that, although appellant had previously objected to and the trial court had sustained an objection to the admission of similar transaction evidence, the testimony of which appellant complains was introduced as rebuttal testimony following the testimony of appellant. At the time this evidence was actually presented, appellant elected not to pose a timely and specific objection to its admission in evidence. Further, the record does not reveal that appellant had a continuing objection authorized as to the admission of this evidence. See generally, State v. Larocque, 268 Ga. 352, 489 S.E.2d 806. "If the court does not specifically grant a right to a continuing objection, it is counsel's duty to object to testimony as it is offered." Id. at 353, 489 S.E.2d 806. Moreover, at the point the original objections were made the "purpose" for which the testimony was being offered, that is, as rebuttal, was not apparent, and this particular issue was not addressed by the trial court. Compare Seabrooks v. State, 251 Ga. 564, 567(1), 308 S.E.2d 160. By failing to pose a timely and specific objection at the time this testimony was elicited, appellant failed to preserve this alleged error for appellate review. See generally, Sharpe v. Dept. of Transp., 267 Ga. 267, 476 S.E.2d 722; Ledford v. State, 264 Ga. 60, 67(18)(a), 439 S.E.2d 917.

3. Appellant contends that the trial court erred in denying his mistrial motion after the victim testified that appellant committed oral sodomy on her when she was sleeping in her nightgown in the guest bedroom.

Following the testimony of the victim, the State asked and the victim answered two more questions before appellant called for an out-of-court hearing and tendered his mistrial motion. As neither the request nor the motion was made immediately following the allegedly improper testimony, the issue was waived. Dye v. State, 177 Ga.App. 824, 341 S.E.2d 314 (motion made two questions later); compare Anderson v. State, 199 Ga. App. 559, 560(2), 405 S.E.2d 558. A mistrial motion not made at the time the testimony objected to is given is not timely. Thaxton v. State, 260 Ga. 141, 143(5), 390 S.E.2d 841.

Assuming the issue had been preserved for appellate review, we are satisfied that the trial court did not err in ruling that the testimony was part of the res gestae of the criminal transaction at issue. Compare Burton v. State, 212 Ga.App. 100(1), 441 S.E.2d 470. "`(T)he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant's character is incidentally placed in issue.' (Citations and punctuation omitted.)" Id.; accord Fitzgerald v. State, 201 Ga.App. 361, 364(4), 411 S.E.2d 102 (surrounding circumstances constituting part of res gestae may always be shown to the jury). The trial court did not abuse its discretion in admitting the res gestae evidence.

Additionally, assuming arguendo error had resulted, it would have been "harmless under the standards of Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869." Gentry v. State, 212 Ga.App. 79, 82(3), 441 S.E.2d 249. The victim's answer could not have shocked the jury "given all of the sordid details of this case that were [legitimately] introduced into evidence." Chastain v. State, 262 Ga. 178, 179(3), 415 S.E.2d 629.

4. When a defendant is charged with sexual offenses, pornographic videotapes and pictures found lawfully in his possession are relevant and admissible, after a sufficient foundation has been laid, to shown defendant's lustful disposition. Miller v. State, 219 Ga.App. 213, 218(3), 464 S.E.2d 621.

The fact that one of the videotapes depicted an incestuous relationship between siblings and their parents does not alter this holding. Moreover, appellant's possession of one particular movie depicting an incestuous relationship, which "started out by the brother having sex with the daughter," had additional relevancy as it would partially corroborate the victim's testimony that appellant had shown her x-rated movies and that one of those movies "was like an incest movie.... Because his daughter was doing his brother and all that." If evidence is competent for any purpose, it is not erroneous to admit it; even evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Norman v. State, 197 Ga.App. 333, 336(4), 398 S.E.2d 395. Roose v. State, 182 Ga.App. 748, 356 S.E.2d 675, where the tapes at issue depicted the appellant and another male, both nude from the waist up, lying on a bed kissing each other, is distinguishable. Appellant's fourth enumeration of error is without merit.

5. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

6. The trial court initially charged the jury erroneously that the statute of limitations period was three years for child molestation. The jury commenced deliberation; however, before any verdict was reached, the trial court recalled the jury and gave them a corrected charge as to the statute of limitation period for the child molestation counts at issue. The trial court can call the jury back in from its deliberation for curative instruction; generally, the trial court may correct errors in a charge by calling attention to the erroneous parts of the charge and giving the jury the correct rule. Tuggle v. State, 165 Ga.App. 53, 54(1), 299 S.E.2d 121. "The trial court is obliged to charge the jury on the law applicable to the case. [Cit.] Therefore, the trial court was authorized to correct any errors in the charge [cits.], and could do so sua sponte." Green v. State, 208 Ga.App. 1, 2(1), 429 S.E.2d 694. A proper instruction on recharge may correct an improper instruction given in the original charge to the jury, where[, as in this case,] the correct instruction given on recharge explains away the defect in the previous improper charge. Tuggle, supra. Further, a corrective recharge may be given even though a jury has reached and is ready to announce its verdict, as no legal verdict occurs until it is received and published in open court. Green, supra. The trial court did not err in recharging the jury sua sponte, after the jury commenced its deliberation, to correct an erroneous charge. Id.

Judgment affirmed.

RUFFIN and ELDRIDGE, JJ., concur.