Collins v. State

601 S.E.2d 111, 266 Ga. App. 871, 2004 Fulton County D. Rep. 1216, 2004 Ga. App. LEXIS 406
CourtCourt of Appeals of Georgia
DecidedApril 8, 2004
DocketA04A0362
StatusPublished
Cited by7 cases

This text of 601 S.E.2d 111 (Collins 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
Collins v. State, 601 S.E.2d 111, 266 Ga. App. 871, 2004 Fulton County D. Rep. 1216, 2004 Ga. App. LEXIS 406 (Ga. Ct. App. 2004).

Opinions

ELDRIDGE, Judge.

A Chattooga County jury found Walter Rex Collins guilty of aggravated child molestation, sexual battery, and three counts of child molestation for acts Collins perpetrated against his eight-year-old daughter; the jury acquitted him on one count of aggravated sodomy. Without challenging the sufficiency of the evidence against him, Collins appeals and claims that there was error in the indictment upon which he was tried; that his prosecution on the aggravated child molestation charge was barred by double jeopardy and was otherwise inconsistent with his acquittal on aggravated sodomy; and that the trial court erred by failing to remove a juror who was not a Chattooga County resident. Upon review of these contentions, we find them meritless and affirm Collins’ conviction.

[872]*8721. Collins first contends the trial court erred in allowing the trial to proceed on an indictment (a) that was altered without action from the grand jury, and (b) which contained counts that had been severed “without judicial process.” These contentions have no merit.

During the 1996 February term, the Chattooga County Grand Jury returned a ten-count indictment against Collins, charging him with four counts of child molestation, three counts of aggravated sodomy, two counts of aggravated child molestation, and one count of aggravated sexual battery. Sometime in 1996, the State apparently chose to go to trial on only six counts of the original indictment. Four counts were abandoned, and the indictment was redacted to reflect this decision.1 The allegations in the remaining counts were unaltered, staying precisely as they had been when returned by the grand jury.2

The case proceeded to trial on the redacted indictment in April 1996. The record of that trial is not before this Court and thus the record on this issue is incomplete. The record before us shows no objection to the abandonment of the counts or to proceeding on the redacted indictment. The record does not contain a demurrer to the indictment, general or special. In his first trial, the jury found Collins guilty of aggravated sodomy, attempted aggravated child molestation, aggravated sexual battery, and three counts of child molestation. No motion in arrest of judgment was filed. Amotion for new trial was apparently filed, but a transcript of the hearing on the motion for new trial is not included in the instant record. Because of an alleged error in the trial court’s charge to the jury on aggravated child molestation, the trial court granted Collins’ motion for new trial.

In February 1997, Collins was retried on the same redacted six-count indictment (his conviction on which is currently under appeal). Prior to evidence, the State reminded the trial court that several of the charges in the original indictment “have been omitted and removed. We proceeded under that indictment previously.” The record contains no objection to this second proceeding on the redacted indictment without the abandoned counts. No demurrer to the indictment was filed before or during the second trial. No arrest of judgment was filed after.

Here, Collins has been tried twice on the redacted, six-count indictment about which he now complains. He has had opportunity during two pre-trial periods, two trials, and an earlier motion for new [873]*873trial to raise the complaints he now makes. He did not do so. We find that Collins has failed to preserve his claim that the State’s abandonment of the four counts of the original indictment was not properly accomplished.3 His failure to register any objection to the abandonment of the counts and redaction of the indictment — as well as his acquiescence to not one, but two trials on such indictment — require a reiteration of the principle that, “One cannot complain on appeal of a result that he procured or which his own conduct or procedure aided in causing.”4 Further, any complaint about the indictment itself is not properly before us because Collins failed to object to the indictment in any manner before or during either of his two trials and did not move to arrest the judgment after his conviction.5

Finally, in light of Collins’ repeated failure to object or to register any protest about proceeding to trial on the six-count indictment, we decline his invitation to assume error in the abandonment of the four counts simply through the absence of documentary evidence about how/why/when the four counts were abandoned; indeed, under the limited record before us, abandonment of the counts and redaction of the indictment could have occurred by agreement of the parties and with the approval of the trial court, Collins’ contrary assertions notwithstanding. “On appeal, [Collins] has the burden to affirmatively show asserted error by the record. Having failed to demonstrate support in the record for this enumeration, we find no error.”6

2. The jury’s verdict from the first trial is included in the record before us, and therein Collins was found guilty of the lesser included offense of attempted aggravated child molestation under Count 2 of the indictment, which had charged Collins with the greater offense of aggravated child molestation. Collins was granted a new trial because of an error in the trial court’s charge to the jury on aggravated child molestation, as Collins acknowledges by brief.

Thereafter, upon retrial and without objection, the State prosecuted Collins on the same six-count indictment, inclusive of Count 2, aggravated child molestation; in this second trial, he was found guilty of such offense. Collins now argues that prosecution on the aggravated child molestation offense was barred by double jeopardy, since the jury verdict finding him guilty of the lesser included offense of attempt constituted an implicit acquittal on the greater offense. By [874]*874brief, the State concedes this issue. But “[t]he State cannot concede error where there is none. [Cits.] This court must determine for itself whether error exists.”7 And we will not interfere with a jury’s verdict absent error. Under the specific circumstances presented here, we disagree that Collins’ retrial on aggravated child molestation was barred.

[A] conviction on a lesser included offense does not necessarily foreclose a retrial on the greater offense. Potts v. State[, 258 Ga. 430, 431-434 (5) (369 SE2d 746) (1988)]. In Potts, supra, the Supreme Court held that notwithstanding his conviction for kidnapping, Potts could be retried for kidnapping with bodily injury, the greater offense. Potts, supra at 434 (5). In so deciding, the Supreme Court held that retrial on the greater offense was not barred unless two prerequisites were established: (1) an unambiguous conviction on the lesser included offense and (2) a full opportunity for the jury to consider the greater offense. Potts, supra at 433-434.8

In this case, on the record before us, we are unable to determine whether Collins’ first conviction on the lesser offense of attempted aggravated child molestation was “unambiguous” and/or whether the jury had a “full opportunity” to consider the greater offense of aggravated child molestation. As noted in Division 1, supra, the trial court’s charge to the jury in the first trial is not before us, and the transcript of the evidence in the first trial is not before us.

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Cite This Page — Counsel Stack

Bluebook (online)
601 S.E.2d 111, 266 Ga. App. 871, 2004 Fulton County D. Rep. 1216, 2004 Ga. App. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-state-gactapp-2004.