Karl Howell McGee appeals from the verdict and sentence, and from the denial of his motion for new trial. Appellant was convicted of one count of child molestation of E. M., one count of rape of M. M., and one count of cruelty to children by hitting M. M., striking her when she refused to get in bed with him, and threatening to whip her if she told anyone about his sexual advances. E. M. and M. M. are appellant’s daughters.
At the time of the alleged incidents E. M. was age 12 and M. M. was age 14. At the time of trial E. M. was age 13 and was attending a special class for children with an I.Q. of 45 and below; M. M. was age 16 and was moderately mentally handicapped. Both children were liv *723 ing with appellant’s mother at trial time. On the witness stand, E. M. recanted and denied that appellant had sexually assaulted her; she admitted telling her teacher that appellant had touched her “private,” but claimed M. M. told her to say that; and she denied telling anyone that appellant sexually abused her. M. M. testified in the vernacular that appellant had penetrated her “private” with his penis and threatened to whip her if she told of his activity, but denied he had actually struck her. The State introduced two videotapes and an audio tape of the victims’ prior, out-of-court statements describing inter alia certain sexual acts perpetrated by appellant upon them.
Appellant enumerates 17 separate errors, several of which have sub-parts. Held:
1. The following general rules will be applied, as appropriate, in the disposition of this appeal:
(a) “[I]f evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories.”
Boatright v. State,
(b) On appeal the evidence must be viewed in the light most favorable to the verdict.
Guffey v. State,
(c) Rules of evidence are framed with a view toward obtaining the “discovery of truth.” OCGA § 24-1-2. And, certain rules of evidence have been most liberally extended regarding sexual crimes, particularly those involving children. See, e.g.,
Oller v. State,
2. E. M.’s schoolteacher, Ms. Allen, testified without objection to certain statements made by E. M. Appellant’s attorney elicited from Ms. Allen’s testimony that E. M. stated appellant was making her do certain things, that “ ‘he
makes us
[she and M. M.] go into the bedroom.
We have to sleep with him, and he does things to my sister and
myself.’ ” (Emphasis supplied.) Any issue relating to the admissibility of this testimony under OCGA § 24-3-16 was waived by appellant’s trial procedure and by his not taking any timely and specific objection thereto.
Lawton v. State,
3. As State’s Exhibit No. 1, a medical report, was admitted after “no objection” was posed by appellant’s counsel, appellant cannot complain of the report’s admission on appeal. See
Bruce v. State,
4. Whether and when to allow a witness to be recalled for further examination rests in the sound discretion of the trial court. See
Andrews v. State,
5. Appellant contends prejudicial error occurred when he was not allowed to cross-examine M. M. regarding whether she had ever run away from home. The record reflects that appellant acquiesced to the State’s objection and abandoned voluntarily that line of questioning, without obtaining a ruling as to the objection from the trial court. “Because counsel for the defendant agreed to proceed as requested by the state, there is no issue here for our review.”
Easterwood v. State,
6. Appellant asserts the trial court erred in instructing the jury that when an indictment charges that a crime was committed in more than one way, the State is not required to prove the commission of that crime in every way alleged but may prove the crime was committed in any one of the ways alleged. This is a correct statement of law. See, e.g.,
Gordon v. State,
7. Notwithstanding OCGA § 5-6-40, appellant’s enumeration of error number 13 asserts two separate errors therein, to-wit that the trial court failed to give a complete charge on the crime of rape and failed to charge the jury on constructive force. Exercising our discretion
(Robinson v. State,
The trial court instructed that “in Count 3 of the indictment the defendant is charged with the offense of rape. Rape is defined by law as follows:
‘A
person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.’ . . . If . . . you should find and believe beyond a reasonable doubt that. . . the defendant did . . . commit the offense of rape
as charged
in Count 3 of the indictment, you would be authorized to find the defendant guilty of that offense. . . . On the
*725
other hand, if you do not believe that the defendant is guilty of rape
as charged
in Count 3 of this indictment, or if you have any reasonable doubt as to his guilt of
that
offense, then it would be your duty to acquit the defendant of that offense.” (Emphasis supplied.) The court also instructed the jury inter alia as to Count 3 that “ ‘the grand jurors . . . further charge and accuse Karl Howell McGee with the offense of rape for that the said accused . . . did unlawfully have carnal knowledge of [M. M.], a female, forcibly and against her will.’ ” When examined in toto
(Hambrick v. State,
Phelps v. State,
8. Only after the charging of the jury did appellant enter two motions for mistrial as to two specific comments made to the jury by the State during its closing argument. No objections or mistrial motions were posed during argument when the trial court could have promptly and effectively taken any corrective action deemed necessary. “ ‘The time to object to improper closing argument
is when the impropriety occurs at trial,
when the trial judge may take remedial action to cure any possible error. . . . When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of trial.’ ” (Emphasis supplied.)
Tharpe v. State,
9. Appellant asserts the trial court erred in allowing Detective Wade to testify repeatedly as to statements made to her by M. M. This error as enumerated is without merit.
At trial appellant objected to this testimony on the grounds that an exception to the hearsay rule applies only to a child witness who has not yet reached her fourteenth birthday at the time the out-of-court statement was made. Appellant also enumerates as error that the testimony concerning M. M.’s prior statements was admitted to impeach without proper foundation, and that such statements were being used to prove a crime. As these latter two enumerations were not timely raised by objection, at trial, appellant cannot now raise them for the first time on appeal.
Lawton,
supra at 856 (2);
Norman v. State,
Where the veracity of a witness is expressly or impliedly at issue (M. M.’s veracity was so placed in issue during appellant’s cross-examination of her), and that witness is present at trial, under oath, and subject to cross-examination, the prior
consistent
out-of-court statement of the witness is admissible.
Cuzzort v. State,
Further, when the credibility and veracity of a witness, who is under oath and subject to cross-examination, is under express or implied attack, the State may show that the witness has made prior consistent statements, and such statements are admissible as substantive evidence.
Gibbons v. State,
Portions of M. M.’s out-of-court statement were admissible as prior
inconsistent
statements (for example, M. M. testified with a negative response when asked if her dad ever hit or struck her), and other portions were admissible as prior consistent statements (for example, M. M. testified that her dad had touched her private by inserting his penis therein and he also touched her private with something besides his penis). Appellant
requested,
after the trial court elected to admit testimony concerning the out-of-court statement, that the detective’s testimony be limited either to M. M.’s prior statements which were consistent or to those that were inconsistent with her testimony at trial. This
request
was not in the proper form of an objection or motion. See
Gully v. Glover,
Although, as above discussed, all types of foundation objections were waived at trial, we emphasize that, contrary to appellant’s assertions, surprise no longer is required to be shown to impeach one’s own witness by use of prior inconsistent statements. See generally
Pryor v. State,
10. Appellant asserts that the trial court erred in allowing the admission in evidence of the audio tape of a conversation he had with M. M. Appellant objected at trial to the admission of the tape on the grounds that it was taken when M. M. was 14 years of age, that he had not been provided with a copy of the tape prior to trial notwithstanding his timely motion for discovery, that some of the people *728 listed on the tape were not present in court, and that it would improperly bolster the testimony of a live witness. All other grounds for objection, including but not limited to those relating to foundation and the adding of new evidence, not having been timely and specifically raised at trial are waived. Lawton, supra; Norman, supra.
After hearing the audio tape outside the presence of the jury, the trial court admitted the tape, but informed appellant it would make both M. M. and E. M. available for further cross-examination if requested. As the trial court gave appellant an opportunity to hear the tape before allowing it to be played by the jury, there was no
Brady
violation.
“Brady
[v.
Maryland,
Appellant’s remaining contentions, which were not waived at trial by failure to make specific and timely objection, have been adversely decided against him in Division 9 above. The tape was admissible as substantive evidence. Cuzzort, supra; Gibbons, supra.
11. Appellant’s contention that the trial court erred in allowing the jury to hear again, after commencing deliberation, the audio tape of M. M., is without merit. The tape was admissible as discussed in Divisions 9 and 10 above. The trial court did not abuse its discretion in allowing its replay.
Stephens v. State,
12. Appellant’s assertion that the trial court erred in allowing the *729 videotape of the interview of M. M. in evidence is without merit. At trial appellant timely objected to the admission of the tape only on the grounds that M. M. was 14 years of age when the interview occurred (thus tacitly claiming no hearsay exception existed as to the statement). Accordingly, all other objections, including but not limited to improper bolstering, lack of adequate foundation, and double hearsay (statement attributed to E. M. in M. M.’s tape) were waived. Lawton, supra; Norman, supra. Appellant’s remaining arguments have been resolved against him. See Division 9 above. The videotape of M. M. was admissible. Cuzzort, supra; Gibbons, supra.
13. Appellant’s assertion that the trial court erred in allowing the videotape of the interview of E. M. to be admitted in evidence, because of lack of proper foundation and double hearsay (hearsay statement of M. M.), is without merit. Appellant made neither of these specific objections to the admission of the tape at trial. Thus, these grounds were waived and cannot be considered on appeal. Lawton, supra; Norman, supra.
14. The trial court did not commit error in charging that “should you find that any witness, prior to his or her testimony . . . has made any statement inconsistent with or to his or her testimony ... and that such prior inconsistent statement is material to the case and the witness’ testimony, then you are authorized to consider same not only for purposes of impeachment, but as substantive evidence in the case.” The charge was not misleading and correctly stated the law. Compare Cuzzort, supra with Gibbons, supra.
15. Appellant contends inter alia that the record is void of any evidence from which a reasonable inference can be drawn that appellant had carnal knowledge with his daughter, M. M., forcibly and against her will. We disagree. The various out-of-court statements of M. M. were duly admissible as above discussed, and provided substantive evidence from which the jury could find the essential elements of both rape and cruelty to children. M. M. testified inter alia at trial that her father had placed his penis within her vagina, and that she told two ladies her father had
sex
with her. This conversation was recorded. The defense elicited from her that she got
raped
when living with her father. Detective Wade testified that M. M. told him that “she told her dad she did not want that thing in her body, [that her dad] was having
sex
with her, [and that he would] whip her with a belt if she refused to get into bed with him.” (Emphasis supplied.) In the videotape of M. M., she stated: “I tell him no. I say, ‘You [are] going to make me pregnant.’ . . . But he won’t leave me alone, so he
grabbed
my hand. . . . And then he . . .
grabbed me in there
and told me to pull my clothes off and got on top of me . . . and started doing
sex
with me . . . and I told him, ‘Get off of me!’ and he said no.” (Emphasis supplied.) She further stated that her fa
*730
ther “put his [penis] in my private, and
that’s when he would have sex with me.
... I told him to get off, and I’d say, T don’t want to have
sex
with you.’ ” (Emphasis supplied.) Thus, the jury could reasonably infer appellant had carnal knowledge with his daughter, M. M., by force and against her will. Compare
Carroll,
supra at 554 (1) with
Gross v. State,
On appeal an appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
Grant v. State,
16. Appellant contends the trial court erred in denying his motion for new trial. For all the reasons above discussed, we disagree. There was no reversible error committed in the trial of this case.
Appellant’s remaining unaddressed contentions in support of his enumerated errors also are without merit, and the authority he relies upon is not controlling.
Judgment affirmed.