Keller v. StateKeller v. State
- Reporters:
- , , ,
- Before:
- Smith
Druе A. Keller was indicted on one count of cruelty to children,
1. Keller asserts the general grounds. His sole defense at trial was that thе State made an insufficient showing that he inflicted “cruel or excessive physical or mеntal pain” on the child within the meaning of the statute. Because the child’s mother also whipped the child, Keller contends no evidence established that any of the bruises or оther marks inflicted on the child were caused by Keller’s whipping bim with a belt. This contention has nо merit.
The director of the county office of the Department of Family & Children Services testified that she interviewed the child and observed eight bruises on the backs of his legs that in her оpinion resulted from excessive force. The child told the DFACS director that his mother hit him with a coat hanger and Keller hit him with a belt. The child’s mother testified that Keller, suspecting the child hаd taken his wallet, urged her over a period of about two hours .to discipline the child and that she ultimately “gave into him” and whipped the child with the broad side of a wooden cоat hanger. 1 Keller then took the child into the bathroom, stating that the mother “didn’t discipline him hаrd enough.”
The mother testified she heard six or seven blows and crying from inside the bathroom, and shе entered the bathroom to find Keller with the belt in his hand and his arm raised “fixing to swing at him again.” A Dade Cоunty sheriff’s deputy who examined and photographed the child’s injuries testified that the bruises werе inflicted with a large flexible object that curved around the inside of the child’s legs. The phоtographs were in evidence, and the jury was authorized to conclude on the basis of this testimony that a belt, rather than a rigid object such as the side of a wooden coat hanger, inflicted the bruises discovered on the child. This constituted sufficient evidence authоrizing a rational finder of fact to conclude that Keller was guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Strickland v. State, 212 Ga. App. 170, 171 (1) (441 SE2d 494) (1994).
2. Keller enumerates as error the admission of сertain testimony given by the child’s father. Asked by the State about the child’s ■demeanor after thе incident, the witness gave the nonresponsive answer, “[H]e speaks of hurting Drue hisself.” The trial court overruled Keller’s hearsay objection, and the prosecutor then rephrased the question, explaining that by “demeanor” he meant the child’s feelings. Keller contеnds this testimony was inadmissible hearsay *848 and that a new trial should be granted on this basis. We disagree.
This nonresponsive answer does not fall within thе hearsay rule. Evidence that the child wished to harm Keller was not hearsay. “Hearsay еvidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.”
Moreover, to the extent that Keller complains of tеstimony regarding the child’s demeanor, that complaint has no merit. Demeanor is one оf the factors used to determine the reliability of a child’s statement under
3. Finally, Keller complains the rule of sequestration was violated when the trial court permitted the State to recall а witness for rebuttal testimony after she had been excused and had remained in the courtroom. This contention is controlled adversely to Keller by this Court’s decision in Bigby v. State, 184 Ga. App. 94, 96 (6) (360 SE2d 751) (1987). “Violation of thе rule of sequestration goes to the credibility of a witness, not to his competency tо testify. [Cits.]” Id.
Judgment affirmed.
Pope, P. J., and Andrews, J, concur.
Notes
The record reveals that the child’s mother pleaded guilty to a criminal offensе arising out of the same incident, but the specific nature of that offense is not stated.