Thomas v. State

334 S.E.2d 903, 175 Ga. App. 873, 1985 Ga. App. LEXIS 2897
Court of Appeals of Georgia·Decided September 10, 1985·No. 70521·Published·Cited by 37 cases

Opinions

Beasley, Judge.

A jury found Thomas guilty of child molestation and not guilty of enticing a child for indecent purposes. He appeals from the judgment of conviction and sentence.

1. In his first three enumerations of error, Thomas challenges the verdict upon the general grounds.

As to the general grounds, although the trial court has discretion to grant a new trial, we can only review the evidence to determine if there is any evidence to support the verdict. Drake v. State, 241 Ga. [874]*874583, 585 (247 SE2d 57) (1978), cert. denied, 440 U. S. 928 (99 SC 1265, 59 LE2d 485) (1979). Thomas maintains that there was insufficient evidence that the child molestation occurred within the statutory limitation for prosecution of the offense, and secondly that the testimony in support of the charge was “of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment could not convict” him.

Prosecution for felonies other than murder and other crimes punishable by death or life imprisonment must be commenced within four years after the commission of the crime. OCGA § 17-3-1. Child molestation is such a felony. See OCGA § 16-6-4.

The record contains testimony from various of the state’s witnesses, including the young victim, which would lead a rational trier of fact to conclude that the offense occurred in the summer of 1983. In addition, appellant’s own testimony at the trial, which commenced on November 28, 1983, showed that appellant became acquainted with the victim and her family when they moved into a house that had been built by Thomas approximately 100 feet from his trailer. He then stated: “I built that home about three years ago. . . .”

“In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” OCGA § 24-4-9. Thus the jury could find as fact that the incidents occurred within three years of November 1983, well within the four-year statutory period of life for prosecution. It is well settled that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitation for the prosecution of the offense. Carpenter v. State, 167 Ga. App. 634, 642 (307 SE2d 19) (1983), aff’d 252 Ga. 79 (310 SE2d 912) (1984).

With regard to appellant’s challenge to the quality of the evidence, it is beyond dispute that the weight of evidence and credibility of witnesses are matters for the jury. OCGA § 24-9-80; Harris v. State, 155 Ga. App. 530 (271 SE2d 668) (1980). In determining whether there is any evidence to support the verdict, all conflict in the evidence must, at this stage, be resolved in favor of the verdict. Drake v. State, supra at 585 (1).

Our review of the evidence reveals that it was not only sufficient but ample to enable any rational trier of fact to find the existence of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Maddox v. State, 170 Ga. App. 498, 499 (317 SE2d 617) (1984).

2. Appellant next maintains that the trial court erred in allowing the five-year-old victim to testify on the ground that she was incompetent to do so, because she did not know the significance of taking [875] an oath.

“ ‘[T]he standard of intelligence required to qualify a child as a witness is not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he [is required] ... to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished. . . .’ [Cits.].” Walls v. State, 166 Ga. App. 503, 504 (304 SE2d 547) (1983).

Even though there was some inconsistency in the child’s testimony, such inconsistency would not render her incompetent to testify. See Sprayberry v. State, 174 Ga. App. 574, 576 (1) (330 SE2d 731) (1985). The young girl testified that she knew she was promising to tell the truth, that she would tell “what really happened,” and that a person who did not tell the truth was punished, i.e., “put in jail.”

“It is within the sound discretion of the trial court to determine the competency of a child of tender years.” Walls v. State, supra at 504. The trial court here was satisfied that the child understood she was required to tell the truth, that she had promised to tell the truth, and that she was subject to being punished for lying. We find no manifest abuse of discretion by the court’s finding of competency. Id.

3. Appellant next enumerates as error the admission into evidence, over objection, of investigating officers’ testimony concerning a statement made by appellant during an in-custody interrogation. Thomas claims that the statement was not voluntary, in violation of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) and subsequent cases.

Prior to the admission of the statement, the trial court conducted a full scale Jackson v. Denno hearing in which Thomas and the interrogating officers testified at great length about what transpired at the interview. Thomas testified that he had been given his Miranda rights, that he remembered signing a waiver form, and that he understood what the waiver form meant. He further testified that he had wanted a lawyer but could not remember at what point he indicated this to anyone in authority to act upon the alleged request. Thus his complaint on this point fizzles.

During the hearing, defense counsel argued that, in the interrogation, appellant was coaxed or cajoled into making his statement by being told that it would help the young girl, and that it was therefore involuntary because it was made with the hope of benefiting the victim. The court recessed the proceeding for the evening to give counsel opportunity to research and provide authority for this proposition.

After considering the totality of the circumstances, the trial court ruled that the statutory and constitutional protections had been afforded to Thomas, and that even though the court had seen clearer [876] cases of voluntariness, the jury should be allowed to consider the statement and whether or not it was freely, voluntarily, and knowingly given. In other words, the court found the threshold standard met.

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Thomas v. State, 334 S.E.2d 903, 175 Ga. App. 873, 1985 Ga. App. LEXIS 2897 (Ga. Ct. App. 1985).

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