Kilgore v. StateKilgore v. State
Kilgore appeals his convictions and sentence for two counts of aggravated sodomy, three counts of child molestation and one count of incest. His stepdaughter was the victim of all the offenses. Kilgore was sentenced to two terms of life imprisonment and an additional 100 years confinement. All sentences are to run consecutively. Held:
1. Kilgore contends the trial court erred by excluding Exhibit D-8, under the Rape Shield Statute,
2. Kilgore also alleges that the trial court erred by allowing testimony by his sister-in-law about an instance when he molested her and attempted to have sexual intercourse. Kilgore argues that the
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transactions were not similar because the instance with his sister-in-law allegedly occurred at night with his wife sleeping in the same room, and the instances with his stepdaughter allegedly occurred in the daytime with no one else present. Kilgore also alleges that his sister-in-law’s testimony was not worthy of belief. The lack of similarities Kilgore asserts are meaningless distinctions. Evidence of similar transactions is admissible when there is sufficient similarity or connection between the independent crime and the offenses charged so that proof of the former tends to prove the latter. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony.
Tucker v. State,
3. Kilgore also contends that the trial court erred by allowing a nurse, who had examined the victim, to testify even though she was not on the witness list. The transcript discloses that a special prosecutor was appointed in this case because of a potential conflict of interest involving the district attorney and that this appointment may have been responsible for this omission rather than any bad faith, the special prosecutor promptly informed the defense as soon as he became aware of the omission, the witness’ name was shown on a medical report previously furnished the defense, and the trial court provided Kilgore the opportunity to interview the witness before she testified. Under the circumstances, the purposes of
4. Kilgore contends that the trial court erred by admitting a statement he made in evidence because he was allegedly in custody at the time the statement was made and no warnings of his
Miranda
rights were given before the statement was made. Review of the transcript shows that no objection to this testimony was made in the trial court, and this matter may not be raised for the first time on appeal.
Scott v. State,
5. Kilgore asserts that the trial court erred by allowing testimony about hearsay statements made by the victim to a witness from the Department of Family & Children Services. This assertion is without merit. This testimony was authorized by
Cuzzort v. State,
6. Kilgore asserts that the trial court erred by allowing the prosecutor to read the indictments as part of the swearing of the witnesses. Since Kilgore objected to this procedure only during the swearing of the State’s rebuttal witness and not during the prior swearing of numerous other witnesses, we find that the issue was waived. Further, the trial judge has inherent authority to supervise the course of the trial.
Palmer v. State,
7. Kilgore alleges that the trial court erred by allowing impeachment without a proper foundation. The record reflects, however, that the trial court sustained Kilgore’s objection on this issue, and the matter was not pursued thereafter. Accordingly, there was no error.
8. Kilgore also contends that the trial court erred by permitting a medical witness to testify that examination of the victim indicated that she was sexually active, but then forbidding examination about with whom the victim was sexually active. Review of the transcript shows that Kilgore did not object at trial and, in fact, acquiesced to the trial court’s ruling. Under the circumstances, no issue is presented for review.
Whisnant v. State,
9. Kilgore contends the trial court erroneously ignored the jury’s question concerning time limits on its deliberation. The transcript shows, however, that the trial court questioned the foreman about the matter and apparently answered the question. Since there is no factual premise for this enumeration, it is without merit.
10. Kilgore contends that the trial court erred by denying his motion for a directed verdict of acquittal. In regard to those counts of the indictments of which Kilgore was acquitted, any such error committed was harmless.
Hazelrig v. State,
Considering this issue on appeal, we view the evidence in the
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light most favorable to the verdict.
Watts v. State,
11. Kilgore contends that the trial court erred by denying “an acquittal notwithstanding the verdict.” Pretermitting whether such action is authorized in this state, we found in Division 10, ample evidence to support Kilgore’s convictions. Accordingly, this enumeration is without merit.
12. Kilgore contends that the trial court erred by giving him an “unduly severe” sentence. The sentence imposed was within the statutory limits, and transcript shows that the trial court imposed a sentence which it believed to be appropriate in the exercise of its discretion. Although it is true that the trial judge expressed his opinion that he believed an even more severe sentence was warranted by the offenses Kilgore committed and the attitude Kilgore displayed throughout the trial, these are not grounds for reversal.
Rogers v. State,
Judgment affirmed.