Lane v. State

479 S.E.2d 350, 223 Ga. App. 740, 96 Fulton County D. Rep. 2891, 1996 Ga. App. LEXIS 800
CourtCourt of Appeals of Georgia
DecidedJuly 11, 1996
DocketA96A0791
StatusPublished
Cited by15 cases

This text of 479 S.E.2d 350 (Lane 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
Lane v. State, 479 S.E.2d 350, 223 Ga. App. 740, 96 Fulton County D. Rep. 2891, 1996 Ga. App. LEXIS 800 (Ga. Ct. App. 1996).

Opinion

Ruffin, Judge.

A jury convicted George Lane of two counts of child molestation. Lane appeals from the trial court’s judgment of conviction and the denial of his motion for new trial. We affirm.

1. Lane asserts the trial court erred in denying his motion for directed verdict. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Lane] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866) (1995).

Viewed in this light, the evidence at trial showed that Lane’s son married the victim’s mother. From October 1991 to December 1993, the victim, her brother, their mother and Lane’s son lived with Lane on his property in Pike County. During this time, Lane committed the offenses by molesting the victim in her brother’s presence. See OCGA § 16-6-4 (a). In 1994, a Department of Family & Children Services’ (“DFCS”) caseworker interviewed the victim, who was five years old at the time. The victim told the caseworker that Lane “took her hand and rubbed it . . . [and] also touched her private.” Using drawings, the victim showed the caseworker “that her private was her vaginal area, and that the rubbing it was the male penis on the male drawing [sic].” Similarly, a deputy sheriff with the Pike County Sheriff’s Department testified that the victim told him that Lane let her “play with his privates” and that it had happened many times.

Two other witnesses provided similar testimony. The victim’s brother, who was nine years old at the time of trial, testified that when his mother and stepfather were at work, he would watch television with Lane and the victim. He stated that Lane and the victim would lie on the floor and he could see her “play with George Lane’s private.” The victim’s brother testified that this happened more than once. Finally, the State presented similar transaction evidence showing that in 1989 Lane molested his natural granddaughter by taking *741 her hand and putting it on his penis.

In light of this testimony, there was “ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that [Lane] was guilty of the offenses of which convicted. Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)].” Ogles, supra at 93.

2. Lane asserts the trial court erred when it excused a prospective juror for cause. We disagree.

The voir dire transcript shows that the juror answered positively to the following question: “[H]ave you for any reason formed and expressed any opinion in regard to the guilt or innocence of the accused, George Lane?” Upon further questioning, the juror stated that she would listen to the evidence, but also stated that “I just really don’t believe that he’s guilty. I mean, you know, that’s all I can say. In my heart — .”

“Challenges to individual jurors such as the one at issue here are based on admissions of the juror or facts and circumstances which raise a suspicion that the juror is actually biased for or against one of the parties. [Cit.]” Perry v. State, 264 Ga. 524, 525 (2) (448 SE2d 444) (1994). And, although a defendant is presumed innocent, where a prospective juror is not impartial and shows some bias in favor of a defendant, that juror is subject to be excused for cause. Id. A reading of the record in this case shows that the prospective juror accorded the defendant more than just the presumption of innocence, but that she had actually prejudged the case. “The decision as to whether or not to discharge the prospective juror is within the discretion of the court. [Cit.]” Id. Because the prospective juror’s responses in this case showed a leaning or bias in favor of Lane, the trial court did not abuse its discretion in excusing her for cause. Id.

3. Lane asserts the trial court erred in admitting certain similar transaction testimony. The transcript shows that when the similar transaction witness began to testify, Lane’s attorney moved the court as follows: “I would request limiting instructions to the jury contemporaneously with any testimony or any evidence of the similar transactions being presented.” The trial court gave Lane’s requested instruction, and thereafter, a DFCS caseworker testified that in 1989 she investigated a report that Lane molested his granddaughter, who was si;x years old at the time. In her testimony, the caseworker related the granddaughter’s statement that “Lane had taken her hand and put it on his private.”' Lane did not object to the caseworker’s testimony, and appellate courts have no alacrity for embraced error.

Lane’s request for a limiting instruction, accompanied by his failure to object to the testimony, must be construed as a waiver of any objection he may have had to the testimony. It is well settled in *742 this state that “it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Citations and punctuation omitted.) Curtis v. State, 212 Ga. App. 237, 239 (4) (441 SE2d 776) (1994). Furthermore, Lane did not move in limine to have the court prohibit the testimony, and there is nothing indicating that he was dissatisfied with the court’s handling of his request for a contemporaneous limiting instruction or the testimony that followed. “ ‘In no case will the trial judge’s ruling be reversed for not going further than requested.’ [Cit.]” Garner v. Victory Express, 264 Ga. 171, 173 (2) (442 SE2d 455) (1994). Accordingly, we find no error.

4. Lane asserts the trial court erred in refusing to require the State to provide him with a copy of a videotaped interview of the victim which purportedly contains exculpatory evidence. The trial judge examined the videotape in camera and informed the parties that he would not order the State to produce it unless the State planned to introduce it at trial. The court subsequently denied Lane’s request that the tape be sealed for appellate review.

“Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for discovery by the defendant in a criminal case. It is well-recognized that Brady [v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)] does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery. Accordingly, [Lane’s] complaint that he was not provided with a copy of the [videotape] for his own inspection is without merit; this is not required under the holding in Brady or its progeny.” (Citations and punctuation omitted.) Boatright v. State, 192 Ga. App. 112, 113 (2) (385 SE2d 298) (1989). “Under the attendant circumstances the trial court’s prior examination in camera of the [videotape] was an adequate in camera inspection to satisfy the requirements of Brady

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Cite This Page — Counsel Stack

Bluebook (online)
479 S.E.2d 350, 223 Ga. App. 740, 96 Fulton County D. Rep. 2891, 1996 Ga. App. LEXIS 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lane-v-state-gactapp-1996.