Adams v. State

367 S.E.2d 871, 186 Ga. App. 599, 1988 Ga. App. LEXIS 423
CourtCourt of Appeals of Georgia
DecidedMarch 18, 1988
Docket75609
StatusPublished
Cited by25 cases

This text of 367 S.E.2d 871 (Adams v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. State, 367 S.E.2d 871, 186 Ga. App. 599, 1988 Ga. App. LEXIS 423 (Ga. Ct. App. 1988).

Opinions

Carley, Judge.

Appellant was indicted for kidnapping, child molestation, and aggravated child molestation. The jury returned a guilty verdict only as to the crime of aggravated child molestation. Appellant appeals from the judgment of conviction and sentence that was entered by the trial court on the jury’s guilty verdict.

1. The general grounds are raised in several enumerations of error.

There is no requirement that the testimony of the victim of child molestation be corroborated. See Padgett v. State, 175 Ga. App. 818 (334 SE2d 883) (1985). Nevertheless, the testimony of the victim in this case was corroborated in several material respects. From all of the evidence, the jury was authorized to find that appellant had committed an immoral or indecent act to the person of the child. See generally Chapman v. State, 170 Ga. App. 779 (1) (318 SE2d 213) (1984). The evidence would also clearly authorize a finding that appellant had done so with the intent to arouse his sexual desires. See generally Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986). The evidence likewise authorized a finding that the commission of the act of molestation was accomplished by the use of such force as to have resulted in physical injury to the child. See generally Keeler v. State, 181 Ga. App. 208 (1) (351 SE2d 731) (1986). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellant’s guilt of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This is true notwithstanding appellant’s acquittal on the two other crimes which allegedly arose out of the incident. See generally Nelson [600]*600v. State, 181 Ga. App. 455, 456 (2) (352 SE2d 636) (1987).

2. After voir dire but before the jury was sworn, appellant, relying upon Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), moved for disqualification of the jury because of the prosecutor’s use of peremptory challenges to remove blacks from the jury. “This was timely. [Cit.]” Wright v. State, 186 Ga. App. 104 (1) (366 SE2d 420) (1988). See also State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). The trial court conducted a hearing. During that hearing, appellant attempted to make a prima facie case pursuant to Batson. The prosecuting attorney urged that appellant had failed to meet his burden under Batson. However, out of an abundance of caution, the prosecuting attorney did offer his racially neutral motivation for the exercise of his peremptory strikes. That explanation was that only those black prospective jurors who knew appellant or knew of him had been removed. After further extensive colloquy with counsel concerning the Batson motion, the trial court held as follows: “The motion will be denied based on the court’s observation of the jury, the makeup of the jury, [and] the responses on voir dire that were made pursuant to questions asked by both sides.” Appellant enumerates as error the denial of his Batson motion.

We note at the outset that Powell v. State, 182 Ga. App. 123 (2) (355 SE2d 72) (1987) is not authority for this court to order the remand of this case to the trial court for a hearing on the issue of whether appellant met his initial burden of making a prima facie case in support of his Batson motion. In Mincey v. State, 257 Ga. 500 (360 SE2d 578) (1987), a case so factually similar to this case that it fits it like a glove, our Supreme Court has construed the applicability of Powell in cases wherein a Batson motion is made. “ ‘All relevant circumstances’ in the [Mincey] case, which Batson holds must be considered, include the facts that the prosecutor used seven of his 10 strikes to remove blacks from the venire; that the state accepted five black jurors prior to exhausting its strikes; that the state utilized five strikes on blacks, three on whites, and the race of two panel members was not noted on the record; and that there were at least three blacks on the jury. In Powell v. State, [supra], cert. denied, the Court of Appeals held that the fact that three blacks were on the jury of 12, was not determinative, and that ‘(t)he question is whether the state exercised any of its strikes for a racially discriminatory reason, for if it did, the rule of Batson was violated.’ That court held that a number of specified circumstances were sufficient to establish a prima facie case of purposeful discrimination in selection of the petit jury, and the case was remanded to the trial court, as the factfinder, for an evidentiary hearing consistent with Batson. We do not read Powell to mean that the factfinder cannot consider the fact of the number of blacks on the jury, along with all other ‘relevant circumstances.’ [601]*601Rather, we understand it to mean, when read along with that portion of Batson quoted hereinabove, that that fact alone does not automatically outweigh other relevant circumstances which would raise an inference of unlawful discrimination. Our interpretation is bolstered by the recent holding in United States v. Dennis, 804 F2d 1208, 1211 (11th Cir. 1986), cert. denied, involving similar factual circumstances, that ‘(i)t is . . . obvious that the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury. Moreover, the unchallenged presence of two blacks on the jury undercuts any inference of impermissible discrimination that might be argued to arise from the fact that the prosecutor used three of the four peremptory challenges he exercised to strike blacks. ... We thus conclude that all of the relevant facts and circumstances do not raise an inference of purposeful discrimination on the basis of race, and that appellants were not entitled to any inquiry into the prosecutor’s reasons for exercising his peremptory challenges as he did.’ We thus likewise conclude that the trial court did not err in holding that no prima facie case for unlawful discrimination was made here.” (Emphasis in original.) Mincey v. State, supra at 503-504.

In this case, as in Mincey, there appears to be some confusion as to how many strikes the State may have used to remove blacks. However, in Mincey, there was even a dispute as to how many blacks actually served on the jury. In the case at bar, it is clear that 7 out of the 12 jurors were black. However, it would certainly be a mischaracterization of the trial court’s ruling in this case to imply that the number of black jurors was the only factor which was considered by the trial court in its ruling that appellant had failed to show a prima facie case. As noted previously, it was only after extensive colloquy with counsel concerning the Batson motion in this case, that the trial court held: “The motion will be denied based on the Court’s observation of the Jury, the makeup of the jury, [and] the responses on voir dire that were made pursuant to questions asked by both sides.” Thus, as in Mincey, the trial court in this case has made a finding that, based upon the relevant circumstances — which included but were not

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Adams v. State
367 S.E.2d 871 (Court of Appeals of Georgia, 1988)

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Bluebook (online)
367 S.E.2d 871, 186 Ga. App. 599, 1988 Ga. App. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-state-gactapp-1988.