Potts v. StatePotts v. State
The defendant, John Christopher Potts, was convicted by a jury
At trial, one of the victims, the ten-year-old daughter of the defendant’s former girl friend, testified that during the school year of 1991, the defendant pulled down her panties and put his finger in her vagina. On that evening, she went into the bedroom where the defendant and her mother were sleeping and got into the bed with them because she was afraid. However, the defendant was not charged as a result of this incident.
On or about July 13 and 14, 1991, while this victim was visiting the home of the defendant’s sister, the defendant got into the bed where the victim and the defendant’s daughter had been sleeping, and pulled down her panties. The victim immediately moved the defendant’s hand. The next day, she informed her mother of this incident and later that day, reported the incident to the police department.
The defendant’s eleven-year-old daughter testified that during that same time period, the defendant got into the bed where she and the ten-year-old victim had been sleeping and rubbed her buttocks as well as other parts of her body. He put his finger in her rectum and got on top of her back while she was lying on her stomach. This victim pushed the defendant off her back and went upstairs to the bathroom. The next day, she discussed the incident with the ten-year-old victim who had informed her that the defendant had touched her also. The defendant’s daughter discussed this incident with her mother on the next day and they reported it to the police department. The defendant had touched her vagina before in 1987 and stopped when his female roommate entered the room.
The mother of the ten-year-old victim testified that her daughter informed her of the July 1991 incident the day after it occurred. She picked up her daughter from the home of the defendant’s sister and took her to the police station. The victim informed her that the defendant had put his hand in her rectum. The mother was aware of the 1987 incident during which the defendant touched her daughter’s vagina.
Detective Lisa Sikes of the Gwinnett County Police Department testified that on July 14, 1991, she obtained a statement from the defendant and the victims. In his statement, the defendant asserted that he had been drinking on July 13, 1991, and woke up the next morning in the bed where the victims had been sleeping. He did not remember how he wound up in the bed with the victims. The 11-year-old victim indicated in her statement that the defendant put his finger in her rectum and laid on top of her while she was lying on her
During the trial, the defendant testified that he did not remember what happened between the time that he headed downstairs where the victims were sleeping on or about July 13, 1991, and the time that he woke up the next morning in their bed. He did not remember putting his finger in his daughter’s rectum or pulling down the panties of the ten-year-old victim.
1. In his first enumeration of error, the defendant contends that the trial court erred in charging the jury that the immoral and indecent acts could be performed with the intent to arouse or satisfy the sexual desires of either the child or the person when the indictment only asserts that the acts were done with the intent to arouse the accused. The defendant asserts that this error committed by the trial judge warranted a new trial. We disagree.
“In criminal prosecutions the court’s instructions to the jury must be tailored to fit the charge in the indictment and the evidence admitted at trial. [Cits.]”
Walker v. State,
2. In his second enumeration, the defendant contends that the trial court erred in failing to grant his motion for directed verdict as to Count 2 because the evidence was insufficient to support the verdict. We disagree.
“Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence. . . .”
In this appeal, the evidence presented by the prosecution shows that the defendant pulled down the panties of the ten-year-old victim, although the defendant testified that he did not remember what happened after he descended the stairs in the direction of where the victims were sleeping due to his alcohol consumption. The defendant did not specifically deny that the incidents took place as the victims testified. “The question of witness credibility ... is for the jury. [Cit.] . . . [T]his court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility. [Cit.]”
Daniel v. State,
, 3. In his third enumeration, the defendant asserts as error the trihl court’s addendum to the probationary portion of the sentence prohibiting the defendant’s contact with any child under the age of 16. However, the trial court only limited the defendant from having contact with children under 16 years of age in volunteer activities and seeking employment which requires regular contact with children under 16.
“The imposition of terms of probation is within the trial court’s discretion. [Cit.]”
Hardman v. Hardman,
4. In his fourth enumeration of error, the defendant contends that the trial court erred in ordering restitution without holding a restitution hearing. We agree.
In the case sub judice, no such hearing was conducted and no written findings were made by the trial court with regard to restitution. Consequently, as this court held in Thompson, supra, that portion of defendant’s probationary sentence which imposes reimbursement for psychological counseling of the victims must be vacated and the case remanded to the trial court with direction that a hearing on the issue of restitution be made in accordance with the above-referenced Code sections.
5. The defendant contends that the trial court erred in considering a sentence improperly before it in the sentencing portion of the trial. The defendant asserts that the trial court erred in considering a sentence from the State of Kentucky which was similar to a first offender sentence and subject to discharge. This enumeration is without merit.
During a pre-sentence hearing, the trial judge can hear additional evidence on aggravation of punishment including the record of any prior criminal convictions and pleas of guilty or nolo contendere.
6. The defendant asserts that the trial court erred in allowing hearsay evidence during pre-sentencing concerning whether his prior conviction in Kentucky was given first offender status. We disagree.
In this case, the trial judge permitted the prosecutor to discuss the contents of an affidavit obtained from a district attorney in Kentucky as to whether the defendant’s prior conviction would be under a first offender type program similar to the one in this state. The information was provided by the prosecutor after the defendant raised the possibility that the conviction was under a first offender plan in Kentucky. “Assuming [arguendo that] the testimony [is] hearsay, . . . we conclude that its admission, under the facts of this case, was
7. Lastly, the defendant contends that it was error for the trial court to deny his motion for new trial because the state failed to give him potentially exculpatory information. Specifically, he asserts that the prosecution failed to give him the name of his former roommate who was not called by or interviewed as a witness for the prosecution. This individual walked into the room during the 1987 incident. We find that this enumeration is also without merit.
On November 15, 1991, the defendant made a general request for anything exculpatory in nature. “In response to this type of request, the prosecutor must disclose evidence which creates a reasonable doubt of guilt which did not otherwise exist. [Cits.]”
Radford v. State,