Cuzzort v. State

325 S.E.2d 826, 173 Ga. App. 157, 1984 Ga. App. LEXIS 3106
CourtCourt of Appeals of Georgia
DecidedDecember 5, 1984
Docket68555
StatusPublished
Cited by8 cases

This text of 325 S.E.2d 826 (Cuzzort 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
Cuzzort v. State, 325 S.E.2d 826, 173 Ga. App. 157, 1984 Ga. App. LEXIS 3106 (Ga. Ct. App. 1984).

Opinions

Beasley, Judge.

Appellant was tried before a jury on two counts of aggravated sodomy of his young daughter. The jury returned a verdict finding appellant guilty of both counts. Appellant’s motion for new trial was denied and he appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

[158]*1581. Appellant enumerates the general grounds. The testimony of the victim, standing alone, authorized the finding that appellant had committed the crimes with which he was charged. There is no longer any requirement that the victim’s testimony be corroborated. See Motes v. State, 161 Ga. App. 173 (3) (288 SE2d 256) (1982). Appellant’s contention that the expert medical evidence contradicted the victim’s testimony is refuted by the transcript. To the contrary, the medical testimony established that the victim’s physical condition was not necessarily inconsistent with the commission of the acts that the victim had attributed to appellant.

“ ‘It is the function of the jury, not the appellate court, to determine the credibility of witnesses and weigh any conflict in the evidence. The appellate court views the evidence in the light most favorable to the jury’s verdict after it has been rendered. [Cit.]’ ” Bowers v. State, 164 Ga. App. 462 (1) (297 SE2d 359) (1982). After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant complains that the court erroneously overruled an objection to hearsay testimony when the victim’s mother was asked about her conversation with the victim. He asserts also that the error was reversible.

The trial scenario is as follows.

The victim testified on direct examination that she told her mother about the sexual relations with her father, after they moved out of the family home, on her grandmother’s porch, and that the next day they went to the sheriff’s office and then the hospital.

Defendant’s attorney then cross-examined the victim and asked several questions about whether other girls told her about anything that happened to them “before you told your mama.” He also cross-examined the victim about the conversation with her mother at great length:

“Q. Then, you say that you told your mother about it at your grandmother’s?

A. Yeah.

Q. Why did you tell her about it, [name]?

A. I was scared.

Q. Okay. Now who all was there on that front porch at your mamaw’s when you told this to your mother?

A. Me and mama.
Q. Anybody else?
A. Huh-uh. . . .
Q. Well, you’ve talked about it with your grandmother, haven’t you?

[159]*159A. I guess I did. I don’t know.

Q. Okay. Isn’t it true, [name], that your grandmother started asking you about this before you told your mother?

A. (Witness shakes head from side to side.)
Q. You’re certain of that?
A. Yeah.”

He kept cross-examining her about it.

On redirect examination, the victim acknowledged that she talked to her mother about what had happened to her, and that her mother did not make the story up for her and that her friend Vickie helped the victim decide to tell her mother.

The examining doctor testified that the victim was brought in to Tri-County Hospital by her mother and an officer from the Dade County Sheriff’s Department and that he gave a general physical examination. He further testified that the vagina was unusually enlarged, indicating that something had been put into it over repeated times, and that although the anus appeared normal, that would not necessarily mean there had not been a violation of it lay an adult male sex organ.

The mother testified that she took the victim to the sheriff’s office because of a conversation she had had with the victim the day before. Defendant objected on grounds of hearsay when the mother was asked the question: “I don’t want you to go into any detail, but what basically was the — .” The court allowed the mother to testify what the victim told her, which is what prompted the mother to take the victim to the sheriff’s office, after the court instructed the jury that it was for the limited purpose of explaining the mother’s conduct in taking the victim there. The court further explained that it was not to be considered for the truthfulness of the information, that is whether the content of what the victim said to the mother was true or not.

“Q. Could you tell us, then, what was it that you were told that led you to take [victim] to the Sheriff’s Office?

A. She told me that Clines was taking her to the bedroom of a night when I was at work.”

It is that answer that the appellant contends was reversible error to admit, i.e., inadmissible hearsay which was unlawfully prejudicial to defendant.

However, even if the objection should have been sustained, admission of the mother’s answer, considering its content and its place in the context of all the other evidence, including evidence elicited by defendant, was not reversible error. Since it is a non-constitutional error, the test that applies is whether it is highly probable that the error did contribute to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Teague v. State, 252 Ga. 534, 537 (314 SE2d [160]*160910) (1984). It did not.

Even if the error were constitutional, it would not require reversal. In such cases the standard is harmlessness beyond a reasonable doubt. Harrington v. California, 395 U. S. 250 (89 SC 1726, 23 LE2d 284) (1969); Schneble v. Florida, 405 U. S. 427 (92 SC 1056, 31 LE2d 340) (1972). Considering everything, the jury’s hearing the mother’s statement was harmless beyond a reasonable doubt.

a. The defendant made an issue of whether or not the victim told her mother, by cross-examining her all about the communication, prior to her mother’s testimony. He opened the door to the later question to the mother as to whether the victim did tell her about it.

b. A primary reason for the exclusion of hearsay testimony is that its truthfulness cannot be tested under oath before the trier of fact through the examination of the sayer. Its credibility is thus not able to be established to the degree necessary to render it worthy of consideration in the investigation for the truth. Glisson v. State, 57 Ga. App. 169, 170 (194 SE 877) (1938); Peacon v. Peacon, 197 Ga. 748 (30 SE2d 640) (1944). Here, although made out of court, the speaker as well as the hearer were both subject to thorough and sifting cross-examination under oath, before the jury, about what the speaker said.

c. The object of all legal investigation is the discovery of the truth.

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Related

Brinson v. State
381 S.E.2d 292 (Court of Appeals of Georgia, 1989)
Barnes v. State
361 S.E.2d 876 (Court of Appeals of Georgia, 1987)
Cuzzort v. State
334 S.E.2d 661 (Supreme Court of Georgia, 1985)
Phillips v. State
326 S.E.2d 775 (Court of Appeals of Georgia, 1985)
Cuzzort v. State
325 S.E.2d 826 (Court of Appeals of Georgia, 1984)

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Bluebook (online)
325 S.E.2d 826, 173 Ga. App. 157, 1984 Ga. App. LEXIS 3106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuzzort-v-state-gactapp-1984.