Betsill v. State

365 S.E.2d 548, 185 Ga. App. 755, 1988 Ga. App. LEXIS 220

Opinion

Deen, Presiding Judge.

The appellant, Tommy Betsill, was convicted of three counts of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal his sole contention is that the trial court improperly commented on the evidence.

During cross-examination Betsill admitted selling the cocaine as a favor to the buyer, but stated that he had not meant to violate the law. During closing argument defense counsel reiterated Betsill’s declared intent, and the trial court interjected that “[y]ou don’t have to intend to break the law, you have to intend to do the act that was done. So, I don’t want the jury to be misled by that statement.” Bet-sill contends that this comment deprived him of a fair trial guaranteed under both the Federal and State Constitutions.

Defense counsel did not object or move for mistrial at the time of the trial court’s comment, and the issue thus was not preserved for appeal. Cf. Miller v. State, 180 Ga. App. 525 (349 SE2d 495) (1986). In any event, the trial court’s comment was merely a correct statement of the law concerning criminal intent, Howard v. State, 222 Ga. 525 (150 SE2d 834) (1966), properly interjected to prevent the jury from being misled. In short, the comment did not deprive Betsill of a fair trial, but rather ensured that the trial was fair for the state as well.

Decided February 8, 1988. Kenneth L. Gordon, for appellant. Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.