Favors v. State

702 S.E.2d 1, 306 Ga. App. 168, 2010 Fulton County D. Rep. 2988, 2010 Ga. App. LEXIS 826, 2010 WL 3490206

• Court: Court of Appeals of Georgia
• Decided: September 8, 2010
• Docket: A10A0853
• Status: Published

Opinion

POPE, Senior Appellate Judge.

Following a jury trial, Cedric Favors was convicted of the rape and incest of his biological daughter. He argues on appeal that the trial court erred in denying his motion for mistrial following improper character testimony given by a prosecution witness. Because Favors’s claim was not preserved for appellate review, we affirm.

The evidence presented during the trial showed that, while on a walk with his then 16-year-old daughter, Favors detoured into a graveyard and forced her to have sexual intercourse with him.

During the state’s case-in-chief, a prosecution witness gave a nonresponsive answer to the prosecutor’s questioning that amounted to improper character evidence regarding a previous incident involving Favors. Favors made a timely motion for mistrial. Although the trial court denied Favors’s motion, it gave a curative instruction in which it ordered the jurors to disregard the téstimony and confirmed that the jurors would be able to follow the instruction. Favors did not renew his motion for mistrial following the curative instruction.

Favors now asserts that the trial court erred in denying his motion for mistrial. But,

[i]t is well settled that where a defendant objects and moves for a mistrial during the examination of a witness, and the trial court denies the motion but takes some corrective action, if the defendant is dissatisfied with that action, he must renew the objection or motion; otherwise, the issue is waived.

(Footnote omitted.) Rambo v. State, 266 Ga. App. 791, 793 (2) (598 SE2d 85) (2004). See Ford v. State, 269 Ga. 139, 141 (3) (498 SE2d 58) (1998); Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981). It follows that we will not consider Favors’s argument on appeal. See id.

Judgment affirmed.

Barnes, R J., and Senior Appellate Judge G. Alan Blackburn concur. Decided September 8, 2010 Reconsideration denied September 22, 2010 Little, Crumly & Chambliss, Samuel F. Little, Jr., Peter K. Odom, for appellant. Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.