Butler v. State

Deen, Presiding Judge,

concurring specially.

While concurring fully with what is said in the majority opinion, we offer the following additional observations.

As to the charge

“This instruction was given at the close of a lengthy charge in which the court had correctly given the charge on proof of guilt beyond a reasonable doubt eight times. This incorrect phrase within an otherwise correct statement of law could not have misled the jury where they had previously heard the correct rule over and over again.” Leonard v. State, 146 Ga. App. 439, 443 (246 SE2d 450). “We are aware of the rule of Leonard v. State, 146 Ga. App, 439, 444 (246 SE2d 450), which was also written by the author of this opinion, but under the different facts of that case we found harmless error.” Johnson v. State, 148 Ga. App. 702, 704 (252 SE2d 205). The instant case *170under consideration falls more under the Leonard case than within the whole-court-cited Johnson case.

I further concur with the majority opinion regarding waiver. When the trial court inquired, “Any slip-of-the-tongue changes or any deletions or additions?”, appellant’s counsel replied, “I listened as carefully as I could; I have no exceptions at this time that I know of.” (Emphasis supplied.) Any attempt to reserve objections in the cited response falls far short of the minimum standard set forth in Gaither v. State, 234 Ga. 465, 466 (216 SE2d 324), to wit: “ T will reserve my objections to the charge for motion for new trial.’ ” See also White v. State, 243 Ga. 250 (253 SE2d 694), and Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) reaffirming the rule of Gaither.

As to the evidence

The dissenting opinion states that the evidence is not overwhelming; to this I cannot agree. The evidence is clear, convincing, and perhaps even overwhelming that the defendant actually did molest the child, specifically by having her perform fellatio on two occasions. The child’s mother stated that when she was looking for her child in the neighbor’s house, the defendant also grabbed her hand and asked her for a kiss.

The defendant testified that he had sexual intercourse with his steady girl friend at least three or four times a week. Thereafter an expert witness on homosexual and heterosexual pedophiles stated that, given defendant’s normal sexual activities with his girl friend as related by him, and on the basis of statistical probability projections, these habits would be inconsistent with child molestation and that rarely would the two types of sexual behavior coexist. See Graham v. State, 168 Ga. App. 23 (308 SE2d 413) (1983). The expert here was discussing comparative sexual normality, not sexual morality (although the two are frequently inseparable), but the jury may have chosen to disregard the conclusions of the expert and believe the child and her mother.

Even if error existed here, which we hold it does not under the record before us, “it is ‘highly probable that the error did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

The judgment of the trial court should be affirmed.

I am authorized to state that Judge Benham joins in this special concurrence.