Taylor v. THE STATE

329 S.E.2d 625, 174 Ga. App. 323, 1985 Ga. App. LEXIS 2707

Opinions

Deen, Presiding Judge.

The appellant, William M. Taylor, was convicted of sodomy and child molestation, for which he received sentences of life imprisonment and ten years’ imprisonment, respectively. Taylor brings this appeal pro se.

1. Taylor contends that the trial court erred by failing to charge the jury as to the form of the verdict after the defense of insanity was interposed in the case. Although the trial court charged the jury on insanity, the court did not give the charge on the verdict form contained in OCGA § 17-7-131 (c).

Review of the record discloses that upon concluding its charge to the jury, the trial court inquired of the counsel: “Is there anything you wish to say in connection with the charge?” Taylor’s counsel responded: “No sir. I thought it was clear and distinct.”

“In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), and approved in White [v. State, 243 Ga. 250 (253 SE2d 694)], of reserving the right to object on motion for new trial or on appeal. Here defense counsel neither objected nor reserved the right to later object, and under such circumstances, the defendant has waived the right to raise the issue on appeal.” Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). Indeed, the instant case presents perhaps the clearest example of waiver.

In addition, the charge as given by the trial court did provide sufficient and proper guidelines for determining Taylor’s guilt or innocence, with regard to the defense of insanity, and the trial court’s omission of the specific Code section from its charge was not error. See Yeargin v. State, 164 Ga. App. 835, 838 (298 SE2d 606) (1982).

2. The trial court did not err in denying Taylor’s motion for a directed verdict of acquittal. The evidence is overwhelming as to the completed sexual activity with which Taylor was charged. A psychiatrist, appearing as an expert witness for the defendant, testified that the defendant’s behavior in molesting children was not intentional and that he had not been cured of pedophilia. The psychiatrist also testified that he did not consider him a criminal at all, and he further stated that the difference between right and wrong was not an issue with the appellant’s behavior. Compare the right-wrong standard with that of determinism, which some psychiatrists advance as a theory of predetermined choice. Shirley v. State, 149 Ga. App. 194, 195, 201 (253 SE2d 787) (1979).

The psychiatrist in the instant case indicated that defendant’s activities with children would somehow rid him of his curse, which, in this case, was his mother’s teasing. He stated further that defendant was not under a delusion as to what he was doing with the victims in this case. The jury was authorized to reject all or any part of this expert’s testimony and instead rely on the general presumption of sanity, and could have believed the child’s testimony as to the detailed sexual offenses committed by the defendant. See Moses v. State, 245 Ga. 180 (263 SE2d 916) (1980). The evidence was certainly sufficient to enable a rational trier of fact to find Taylor guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The appellant’s remaining enumerations of error are without merit.

Judgment affirmed.

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