Ward v. State

368 S.E.2d 139, 186 Ga. App. 503, 1988 Ga. App. LEXIS 419

• Court: Court of Appeals of Georgia
• Decided: March 18, 1988
• Docket: 75864
• Status: Published

Opinions

Deen, Presiding Judge.

The appellant, Donald Ward, was convicted of molesting his daughter. On appeal, he contends that the trial court erred in certain evidentiary rulings, and that the evidence did not support the conviction. Held:

1. The trial court found the seven-year-old child victim incompetent to testify. Prior to that finding, however, the trial court had allowed the child’s mother and grandfather to testify about the child’s out-of-court statements relating how her father had molested her. Had the child been a competent witness, and thus “available to testify in the proceedings,” this testimony clearly would have been admissible under OCGA § 24-3-16, and as prior consistent or inconsistent statements. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). When confronted by the dilemma of having this prerequisite foundation crumble, the trial court found the testimony admissible as part of the res gestae.

The alleged molestation occurred on a Friday, when the child did not attend school because of illness and before the appellant went to work early in the afternoon. When the appellant left for work, the child remained at home with the appellant’s mother, who lived with them. The child’s mother returned home later that afternoon from her own job. The next day, the child’s mother took the child (and her other children) to visit the child’s grandfather, and it was during this visit that the child first made remarks indicating that she had been sexually molested by her father.

The child’s grandfather was allowed to testify that after lunch he was bouncing the child in his lap, when he understood her to ask him to stop, because her daddy had “hit” her there and it hurt. He asked her if she had told her mother about this, and she replied that she had not because her daddy had told her not to tell her mother. He immediately told the child’s mother, to whom the child explained that the day before, while in the bedroom, her daddy had licked her “straddle” and had her lick him “on the straddle.” (The grandfather had a hearing problem and had misunderstood the child.)

Under OCGA § 24-3-3, “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” The admissibility of declarations as part of the res gestae is left to the sound discretion of the trial court, considering the time, circumstances, and statements in question. Wallace v. State, 151 Ga. App. 171 (259 SE2d 172) (1979). It is a determination in which very often no precise time when the res gestae ends may be fixed. Kilgore v. State, 177 Ga. App. 656 (2) (340 SE2d 640) (1986); Millwood v. State, 174 Ga. App. 113 (329 SE2d 273) (1985).

In this case, the child’s initial utterance apparently was spontaneous, precipitated by pain when her grandfather bounced her in his lap, and made to the first person she came in contact with who was unconnected with the appellant’s household. Considering the spontaneity of and circumstances around the remark, we are unable to conclude that the trial court abused its discretion in finding, despite the fact that the child’s statement was made a day after the molestation, that the statement was so nearly connected in time with the act of molestation as to be free of device and afterthought. See Kilgore v. State, supra, and Millwood v. State, supra.

2. The appellant also contends that the trial court erred in allowing a child psychologist, called by the State as an expert witness, to testify about the child’s identifying her father as the one who committed the act of molestation. If the psychologist’s testimony had been offered solely under OCGA § 24-3-4, regarding statements made for purposes of medical diagnosis or treatment, admission of that portion of the testimony identifying the appellant as the molester would have been improper. Johnson v. State, 149 Ga. App. 544 (254 SE2d 757) (1979); see also Butler v. State, 256 Ga. 448 (349 SE2d 684) (1986). However, this testimony was also offered as expert opinion testimony, which generally may also include the facts upon which the expert’s opinion is based. See Keri v. State, 179 Ga. App. 664 (347 SE2d 236) (1986).

In this case, the expert stated that in her opinion the child had been sexually molested. In part, the expert’s opinion was based upon the child’s drawings in which she indicated what her father had done to her and what her father had her do to him. In view of Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987), it is not at all clear that the expert’s opinion did not impermissibly invade the province of the jury; but that was not enumerated as error on appeal. Concerning the psychologist’s testimony recounting the child’s identifying her father as the one who had molested her, that evidence, even if objectionable, was cumulative and therefore insufficient to warrant reversal. See Johnson v. State, supra.

3. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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