Hill v. StateHill v. State
Defendant was charged in a seven-count indictment for acts committed on his eleven-year-old daughter on three days within a 9-day period: rape (
1. Defendant first contends that the jury’s verdict of not guilty of rape is repugnant to and inconsistent with the verdicts of guilty for aggravated sodomy and child molestation, involving the September 18 incident. The inconsistent verdict rule has been abolished in Georgia and this ground is without merit.
Milam v. State,
2. Defendant moved to suppress magazines, including Playgirl and Hustler, found during a search of his business, L. C.’s Bargain Store. The motion, based on the contention that the consent to search was coerced, was denied and the evidence was admitted.
After defendant was arrested on the night of September 27, he was fully advised of his Miranda 1 rights at the Henry County Sheriff’s office. A Butts County officer had taken him there in order to return a Henry County officer who assisted in the arrest and to attempt to question defendant. Defendant indicated he wanted a lawyer and the officer told defendant they could take care of that upon reaching Butts County. No questioning occurred at this time. The officer testified that upon arrival in Butts County, he gave defendant the opportunity to use the telephone, but defendant said he did not want to. It was at this point that the officer asked defendant if he would consent to the search of the store and defendant signed the consent form which is relied upon by the state to justify the warrant-less search of the store. The key was obtained from defendant.
The basis of illegality asserted in the motion to suppress is the fourth amendment to the federal constitution. Defendant argues that since his request for counsel was not honored before the consent to search form was signed, this shows that the consent was coerced rather than voluntary. 2
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In the fourth amendment context, “[w]here the state seeks to justify a warrantless search on grounds of consent, it ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ [Cit.] A valid consent eliminates the need for either probable cause or a search warrant. [Cit.] The voluntariness of a consent to search is determined by looking to the ‘totality of the circumstances,’
Schneckloth v. Bustamonte,
The record of the motion to suppress hearing shows that the trial court evaluated these factors and determined that the consent was voluntarily given to search the store. On appeal, the trial court’s ruling on disputed facts and credibility must be accepted unless clearly erroneous.
Muff v. State,
3. During the trial, numerous items and photos were introduced over defendant’s objections, including the following: exhibits #4, false glasses with a penis shaped rubber nose; #6, a collection of photos of nude adults and children, otherwise unidentified; #7, The Best of Playgirl Magazine; #8, Hustler Magazine; #9, The Sex Book; #10-12, nude photos of defendant; #13, Harvey Magazine; #14, Bound to Serve Magazine; #15, Cheating Wives Magazine; and #16, two pictures, one depicting an act of sodomy and one an act of bestiality. On
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appeal, defendant claims that the evidence should not have been admitted on the ground that it was so inflammatory as to deprive him of a fair trial. A review of the trial transcript shows that this objection was made only with regard to exhibits ##7, 8, 9, 13, 14, 15, and 16. Thus, only the objections to these exhibits are before us for consideration.
Turner v. State,
The victim testified that defendant showed her various magazines depicting sexual acts during his molestation of her and that he kept the pictures and magazines in the house and at his store and had also shown the pictures to her. The trial court instructed the jury that these materials were introduced solely to indicate the state of mind of the defendant with regard to the charged sexual crimes.
Magazines depicting natural and unnatural sex acts and devices and paraphernalia for sexual stimulation can have a tendency to show a bent of mind toward similar sexual activity and are relevant and admissible for that purpose.
Tyler v. State,
4. At the close of the state’s case, defendant made a motion for directed verdict, claiming that the offenses charged in Counts 5 & 6 merged into Count 7. The court refused to so rule at that time and advised counsel to bring the matter up again if defendant was convicted. This was a correct ruling.
Few v. State,
At the sentencing hearing, defendant did renew his arguments concerning Counts 2 & 3. No motion concerning Counts 5, 6, & 7 was made at the sentencing. The motion for new trial contained as a ground the failure of the court to grant the merger motion as to Counts 2 & 3 and a claim that defendant was entitled to have his conviction on Counts 5 & 6 set aside as merged into Count 7. Defendant also contended that he was entitled to a new trial on Counts 2 & 7 due to the merger argument. No motion in arrest of judgment as to Counts 5, 6, & 7 was made. See
“Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. [Cit.] Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. [Cit.]”
Fowler v. State,
As to Counts 2 & 3, the argument made by defendant at his sentencing was that Counts 2 & 3 should be “stricken” because it would be inconsistent for the court to sentence him on those counts in that the jury returned a not guilty verdict on the rape count (Count 1). To the extent that this is an argument based on inconsistent verdicts, see Division 1.
Defendant argued that the events in Counts 2 & 3 were “one continuous series of acts. ...”
Defendant reiterates this argument in the motion for new trial as being that “Count 3 merged with the aggravated sodomy in Count 2, . . . Count 3 being a crime that is included in the other crime charged in Count 2.” This argument also fails.
Count 3 charged a violation of
The cases cited by defendant in this regard do not require a different result. In
McCranie v. State,
The indictment as drawn supports conviction and sentence for both aggravated sodomy and child molestation. See
Copeland v. State,
5. Finally, defendant claims the trial court erred in failing to give, upon request, the much maligned and questioned “two theories” principle. Since the charges here were proven by direct evidence, the victim’s testimony as well as the mother’s eyewitness report, the evidence was not solely circumstantial and the charge was not appropriate.
Robinson v. State,
Judgment affirmed.
Notes
Miranda v. Arizona,
Note should be made of the questions not involved in this appeal. Nothing said by the defendant during his giving of consent to the search was introduced before the jury. Thus, this is not a situation involving
Edwards v. Arizona,