Butler v. State

325 S.E.2d 835, 173 Ga. App. 168, 1984 Ga. App. LEXIS 3107

Opinions

Birdsong, Presiding Judge.

Donald Butler was convicted in a jury trial of two counts of child molestation. He was sentenced to serve concurrently 20-year terms of confinement on each count. Butler brings this appeal enumerating two alleged errors. Held:

1. In his first enumeration, Butler argues it was error to grant the State’s motion in limine pertaining to the potential evidence of a neighbor of Butler. This neighbor had been convicted of child molestation. Butler’s counsel argued that the neighbor knew the victim, the victim had been in the neighbor’s presence, and that this neighbor might possess relevant information. The trial court concluded the mere possibility of relevancy when weighed against the neighbor’s insistence that he would invoke his rights against incrimination as to any questions concerning molestation rendered any reference to the neighbor wholly irrelevant. Butler now argues that the grant of the motion in limine curtailed his right to meaningful cross-examination and precluded him from a potential defense.

These arguments are without merit. The scope of cross-examination is not without limit. An exercise of discretion by the trial court in excluding irrelevant evidence cannot be error and will not be error in the absence of an abuse of discretion. Harris v. State, 160 Ga. App. 47 (1) (285 SE2d 781); Crawford v. State, 154 Ga. App. 362, 363 (2) (268 SE2d 414). Under the circumstances of this case, all that was presented to the trial court was speculation and remote possibilities. It was not an abuse of discretion by the trial court to grant the motion in limine. Gray v. State, 156 Ga. App. 117, 119 (3) (274 SE2d 115).

2. In his second enumeration, Butler contends the trial court gave an erroneous, misleading and burden-shifting charge. We note that the court gave the jury an extended charge in which the court repeatedly emphasized to the jury and correctly placed the burden on the State to prove guilt beyond a reasonable doubt. At one point in its charge the court inadvertently stated if “you believe beyond a reasonable doubt that this defendant is not guilty of either or both of these counts, it would then be your duty to acquit. . . .” While we could urge in well-supported reasoning that this was a mere slip of the tongue when the charge is considered in its entirety and thus not prejudicially harmful (Leonard v. State, 146 Ga. App. 439, 444 (246 SE2d 450)), an even sounder reason for assigning lack of prejudice to the erroneous charge is based in waiver. When asked by the trial court if there were objections to the charge on any of several grounds, including slip of the tongue, counsel for Butler stated he had no objections at the time that he knew of.

Decided December 5, 1984 Rehearing denied December 20, 1984 Timothy S. Minors, for appellant. Arthur E. Mallory III, District Attorney, for appellee.

In the first place, the mere insertion of the caveat “at this time” is a far cry from a reservation of objections to a later time, a standard set forth in Gaither v. State, 234 Ga. 465, 466 (216 SE2d 324). See also White v. State, 243 Ga. 250, 260 (253 SE2d 694). In the absence of a reservation and in the face of the specific inquiry of the trial court, we hold that counsel’s statement that he had no objections constitutes a waiver of that portion of the charge to which objection is now, belatedly, made. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855).

Judgment affirmed.

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