Appellant was found guilty by a jury of child molestation and appeals from the judgment of conviction and sentence entered on the verdict.
1. Appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal, as there existed an alleged variance between the allegations of the indictment and the proof at trial. The indictment alleged that appellant committed child molestation “by placing his hands into the panties of the victim and touching her sex organ
and
making said victim touch his sex organ. ...” (Emphasis supplied.) At trial, evidence was presented of the former act, but not of the latter. “When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. [Cits.] Inasmuch as the evidence showed the defendant had molested the child in one of the ways alleged, a directed verdict of acquittal was not proper, and the court did not err in denying same. [Cit.]”
Henry v. State,
2. Appellant enumerates the general grounds. “After the jury has returned a verdict of guilty, where the defendant seeks a reversal of his conviction on appeal by . . . asserting the insufficiency of the evidence, the only question presenting itself to the appellate court is whether there is sufficient evidence to satisfy a rational trier of fact of the essential elements of the crime charged beyond reasonable doubt. [Cit.]”
Hudgins v. State,
3. Appellant asserts that the trial court erred in expressing opinions on the credibility of the alleged victim. At trial, however, appellant did not object or move for a mistrial. “Whenever improper con
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duct allegedly occurs in the presence of the jury, ‘ “it is necessary in order to make the same a basis for review, that . . . counsel make proper objection to it at the time made or invoke some ruling or instruction from the court . . . and if the court refuses to grant that remedy to the movant, then it is incumbent upon him to ask the court to declare a mistrial.” “A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” [Cit.]’ [Cit.]”
Edwards v. State,
4. Appellant contends that the trial court erred in failing to strike the testimony of one witness and in allowing the alleged victim to testify, because both were incompetent to testify. During the cross-examination of the seventeen-year-old sister of the alleged victim, appellant’s attorney questioned her regarding her understanding of the nature of the oath. The trial court examined her further, and ruled her competent to testify. Appellant’s attorney made no objection to the ruling and continued his examination of the witness. Next, the eight-year-old alleged victim took the stand. The trial court examined her to determine her competency to testify and ruled that she was competent. Appellant then objected to that ruling and also moved to strike the testimony of the seventeen-year-old witness.
“ ‘Where the trial judge examines a child as to its understanding of the nature of an oath, as was done in the instant case, and determines the child is competent to testify, the court’s discretion, absent manifest abuse, will not be interfered with by this court. [Cits.] The determining factor in deciding competency of a child witness is not age, but the child’s ability to understand the nature of an oath. [Cit.] It is not necessary that the child be able to define the meaning of an oath, but that she know and appreciate the fact that as a witness she assumes a solid and binding obligation to tell the truth when questioned at trial. [Cit.]’ [Cit.] While the answers of the child in the instant case were not always fully responsive or consistent, ‘[¡Inconsistency in a child’s testimony does not render her incompetent to testify. [Cits.] . . .’ [Cit.]”
Chadwick v. State,
5. Appellant contends that the trial court erred in sentencing him twice for the same crime, and in giving him a harsher second sentence. Appellant was initially sentenced to serve ten years on probation. As a special condition, he was to serve his probation through the Rome Diversion Center. The sentence was reduced to writing, signed by the trial court, and filed with the clerk of court. Before recessing and before appellant was released from custody, the trial court learned that the Diversion Center would not accept sex offenders. The trial court ordered appellant to be retained in custody over the weekend and to be returned to court for sentencing on Monday morning. On that day, appellant was again sentenced to ten years but with five years to be served in confinement followed by five years on probation.
“A sentence which has been reduced to writing and signed by the judge may not be increased
after the defendant has begun to serve that sentence.
[Cit.] This limitation on the court’s sentencing authority stems from the double jeopardy provisions of our constitutions. [Cit.]” (Emphasis supplied.)
Curry v. State,
Judgment affirmed.