McGuire v. State

McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of statutory rape (Count 1), incest (Count 2), two counts of child molestation (Counts 3 and 4), and aggravated child molestation (Count 5). The *814charges of Counts 1 and 2 of the indictment merged for purposes of sentencing. This appeal followed denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for directed verdict of acquittal with regard to Count 5, arguing that fatal variances exist between the allegata and probata.

(a) Defendant first contends the State failed to prove that he committed aggravated child molestation by “placing his sex organ on and against the anus of [the victim].” Defendant argues that the offense could not have occurred as alleged because the victim testified that the criminal act occurred while the victim was wearing “jeans.”

At trial, the five-year-old victim testified that defendant used his hands to touch the victim’s penis, anus and chest. On cross-examination, the victim explained as follows: “[DEFENSE COUNSEL:] What did [defendant] do to you? A. He stick [sic] his private parts in my private parts. Q. He stuck his private part to your private part? . . . Q. So what did you have on when [defendant] touched you — touched you with his private parts? A. My jeans. Q. You had on your jeans.” This evidence and testimony from several adults that the victim reported defendant’s sexual assault in the manner charged in Count 5 of the indictment is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Richardson v. State, 194 Ga. App. 358, 359 (1a) (390 SE2d 442); OCGA § 24-3-16.

(b) Next, defendant contends the State failed to prove that the alleged incident of aggravated child molestation occurred on the date alleged. “ ‘ “[A]ssuming . . . that there was a variance between the allegata and the probata in regard to the time of the commission of the crime, a motion for directed verdict was not the proper vehicle for obtaining relief. The [defendant] should have made a motion for continuance, postponement or recess if surprised by a time variance.” (Cit.)’ Mann v. State, 167 Ga. App. 829 (1) (308 SE2d 12) (1983). See also Whittington v. State, 184 Ga. App. 282 (4) (361 SE2d 211) (1987). Accordingly, we find no error with the trial court’s denial of [defendant’s] motion for directed verdict of acquittal on [Count 5] of the indictment.” Martin v. State, 196 Ga. App. 145 (1), 146 (395 SE2d 391).

2. In his fourth enumeration, defendant contends the trial court erred in failing to give him access to exculpatory or impeaching material in the State’s file and the investigation records of the City of Roswell Police Department and Department of Family & Children Services.

The record reveals that the State provided defendant all material required pursuant to defendant’s pre-trial discovery motions. See *815Stewart v. State, 199 Ga. App. 157, 158 (2) (404 SE2d 461). The record also reveals that the trial court found no impeaching or exculpatory material after an in-camera examination of records from the City of Roswell Police Department and the Department of Family & Children Services. We have examined these sealed records and find no such exculpatory or impeaching information. Consequently, this enumeration is without merit. See Davidson v. State, 183 Ga. App. 557, 559 (4b) (359 SE2d 372).

3. Defendant contends in his sixth enumeration that the trial court erred in denying his request to charge on the law of circumstantial evidence.

In Whittington v. State, 252 Ga. 168 (313 SE2d 73), the Supreme Court held that “it is not error to fail to charge on circumstantial evidence where there is some direct evidence[,] Johnson v. State, 235 Ga. 486, 491-92 (220 SE2d 448) (1975)[, b]ut if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request. Stanley v. State, 239 Ga. 260, 261 (236 SE2d 611) (1977).” Id. at 176 (7). However, the Supreme Court changed this rule in Robinson v. State, 261 Ga. 698 (410 SE2d 116), recognizing that it is impossible to determine whether the jury did or did not believe a State’s witness (i.e., determine whether the witness was or was not impeached) and enunciating that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. [The Supreme Court then emphasized that t]his rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Id. at 699.

In the case sub judice, there was circumstantial evidence pointing to the conclusion that defendant committed at least one of the crimes charged. Since it is impossible to determine whether the jury rejected the direct evidence, Robinson requires reversal of defendant’s conviction based on the trial court’s failure to give defendant’s requested charge on circumstantial evidence. Russ v. State, 204 Ga. App. 689 (1) (420 SE2d 373).

4. The errors alleged in defendant’s remaining three enumerations are unlikely to occur upon retrial.

Judgment reversed.

Birdsong, P. J., Cooper, Andrews and Smith, JJ., concur. Pope, C. J., Beasley, P. J., and Blackburn, J., concur in part and dissent in part. Johnson, J., not participating.