E. J., a 13-year-old juvenile, appeals an adjudication of delinquency based on her commission of a battery upon a schoolmate.
1. In her first enumeration of error, E. J. challenges the sufficiency of the evidence supporting the trial court’s adjudication of her delinquency.
In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile[ ] committed the acts charged. An appellate court does not determine the weight of the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt.
(Citations and footnotes omitted.) In the Interest of W. B.,
So viewed, the evidence adduced at the hearing shows that the battery arose out of a school bus fight involving E. J., her friend, and the victim, A. T., all of whom were schoolmates. One morning as the victim was boarding the school bus, E. J.’s foster brother, C. B., teased the victim about his mother having kissed and hugged him before he got on the school bus. The victim’s mother heard the teasing and retorted, “Well[,] at least he has one to give him one,” referring to C. B.’s foster care status. The victim also retorted, “and mine is my first!”
E. J. heard about the comments, confronted the victim and slapped him. E. J.’s friend joined in and hit the victim in his face with her purse. After E. J. learned that the victim stated that he would fight back if he was hit again, E. J. struck the victim again on his head and pulled his hair. A melee ensued in which the victim kicked E. J., and E. J. then repeatedly struck the victim about his head as he lay on the school bus floor. The victim sustained a bloody nose, a bruise above his eye, and a raised bruise on his forehead. This evidence was sufficient to authorize E. J.’s adjudication of delinquency for the offense of battery.
Although E. J. points to conflicting evidence as to whether or to what extent E. J.’s actions caused the victim’s injuries, “the trier of fact resolved that issue against [E. J.] and this court will not substitute its judgment for that of the trier of fact.” (Citation and punctuation omitted.) In the Interest of A. C.,
2. E. J. next contends that the trial court erred in failing to enforce the discovery provisions of OCGA § 15-11-75 (a) (7) and in failing to remedy a Brady violation, which allegedly occurred as a result of the state’s failure to provide a school bus videotape recording from the day the incident occurred. We find no error.
watched the entire videotape, but there’s nothing on it. We’ve had previously problems with this bus recordings not — whether it’s the tape that’s defective or the camera defective, I can’t tell you, but the tape is — it’s black pretty much the whole way through____There’s nothing. There’s no audible. There’s nothing.
In response to the trial court’s inquiry, the officer confirmed that the tape did not “show anything whatsoever about this incident.”
Even though the trial court noted that the “State doesn’t have to go out and get something that belongs to a third party that’s not a State employee or agency,” and that the defense could have subpoenaed the videotape, it nevertheless granted a two-hour and fifteen-minute recess to allow defense counsel to review the videotape. When the hearing reconvened, defense counsel announced that she had not had enough time to review the entire videotape, but conceded that there was only “snow” and no depiction of images in the 40-minute portion of the videotape that she had thus far reviewed. The trial court denied defense counsel’s request for a further continuance, ruling that the state did not have a duty to produce the videotape since it was not in its possession.
OCGA§ 15-11-75 (a) (7) provides:
In all cases in which a child is charged with having committed a delinquent act as defined in Code Section 15-11-2, the child shall, upon written request to the person or entity prosecuting the case having actual custody, control, or possession of the material to be produced, have full access to [photographs and any physical evidence which are intended to be introduced at the hearing] for inspection, copying, or photographing.
(Emphasis supplied.) Since the state did not have actual possession of the videotape and further because it did not intend to introduce the videotape into evidence at trial, it was not under any obligation to produce the videotape pursuant to E. J.’s discovery request.
Moreover, E. J. has failed to show that the prosecution was under any obligation to produce the videotape pursuant to the dictates of Brady v. Maryland,
Fundamental to any error based upon a violation oí Brady is that appellant must prove that: (1) the state possessed evidence favorable to the defense, i.e., true Brady material; (2) the defense did not possess the evidence, nor could she obtain it herself with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; (4) she was denied access to such evidence during trial; (5) the disclosure would have benefitted the defense by providing evidence for the defense or impeaching prior inconsistent statements; and (6) the denial deprived her of a fair trial, i.e., a reasonable probability exists that the outcome of the proceedings would have been different had disclosure been made.
(Citations omitted; emphasis in original and supplied.) Id. at 874 (3).
E. J.’s claim here fails for several reasons: the videotape was not in the custody and
3. Finally, E. J. contends that the trial court erred in limiting her closing argument to five minutes. OCGA § 17-8-72 provides that the closing arguments in misdemeanor cases and cases brought up from inferior judicatories are limited to one-half hour. Prior to the closing arguments in this case, the trial court informed the parties that they would each have five minutes to argue. Despite having notice that the closing arguments would be limited to five minutes rather than one-half hour, “[djefense counsel did not insist upon [her] right to the full time; instead, [she] remained silent. Thus, defense counsel acquiesced in the court’s ruling and waived this issue on appeal.” (Citations omitted.) Agee v. State,
Judgment affirmed.
Notes
“Aperson commits the offense ofbattery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). “[T]he term ‘visible bodily harm’ means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” OCGA § 16-5-23.1 (b).
The prosecution was instituted at the behest of the victim’s parents, who filed a complaint in juvenile court.