The appellant was tried before a jury and found guilty on an indictment charging that he had committed the offense of cruelty to children by maliciously causing his then seven-year-old son “cruel and excessive physical and mental pain.” See OCGA § 16-5-70 (b). He •brings this appeal from the denial of his motion for new trial.
The evidence established without dispute that after causing the child to be awakened and brought before him on the night in question, the appellant beat him with a metal studded belt for a period of 15 to 20 minutes as punishment for perceived misbehavior which had occurred during the day, inflicting severe bruises on his lower back, buttocks and legs. The jury was presented with photographs of the bruises, and the police officer who took these photographs testified that in his 15 years on the police force he had never before seen such severe bruises caused by a whipping. A protective services worker from the Department of Family & Children Services who had observed the child some two weeks later at a hospital emergency room offered similar testimony concerning the severity of the bruises. She further testified that when she saw the child in the emergency room he was “rolling around on the [examining] table” in a “trance-type” state, screaming, “Daddy, stop; daddy please don’t, don’t hit me; daddy please don’t hit me again.”
1. We hold that a rational trier of fact could reasonably have concluded beyond a reasonable doubt from the evidence presented at trial that the appellant had maliciously caused the child cruel or excessive physical or mental pain in violation of OCGA § 16-5-70. See generally
Jackson v. Virginia,
2. The appellant contends that the trial court erred in allowing the child’s mental health counselor, a clinical social worker with a masters degree in psychiatric social work, to testify, over the appellant’s objection and motion for mistrial, that in his opinion the victim had suffered “excessive physical pain and emotional abuse.” We agree that this testimony should not have been admitted.
“[A]n expert may not testify as to his opinion as to the existence
vel non
of a fact . . . unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. [Cit.]”
Allison v. State,
The jury in the present case was presented with extensive evidence as to the severity of the beating and the extent of the child’s resulting injuries. We hold that it was not beyond the ken of the average juror to determine from this evidence whether the appellant had caused the child excessive physical or mental pain. Accord
Cohn v. State,
3. The appellant contends that the trial court erred in denying his request for an in camera inspection of the district attorney’s investigator’s file regarding the case. The trial court denied the request on the ground that it was untimely in that it was not made until after the jury had been selected and the opening arguments delivered. We find no error. See generally
Tribble v. State,
4. In his fourth enumeration of error the appellant contends that the trial court “violated due process in commenting and charging on the evidence to the effect that there were similar transactions when, in fact, there were not, and the state failed to give any notice of similar transactions.” We find this enumeration of error somewhat confusing in that if no evidence of similar transactions was admitted, then *32 the appellant is in no position to complain of the state’s failure to give notice of its intention to introduce such evidence; whereas, if such evidence was admitted, he is in no position to complain of the court’s action in charging the jury on the proper weight to be given such evidence. Because the appellant asserts unequivocally in his statement of facts that “the state did not put on evidence of similar transactions,” we shall treat this enumeration of error as being directed to the court’s charge, which was, in pertinent part, as follows: “Evidence of the defendant’s conduct with reference to similar transactions about the same time is admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved if you think it does so illustrate it and for that purpose alone. You are not to consider it for any other purpose. The Court does not intimate or express to you any opinion whatsoever as to whether the defendant has had any other transactions at any time similar to the charge . . . contained in this special presentment. Whether the accused has or has not committed other similar offenses is a matter solely for your determination.”
Generally speaking, “an erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the record, does not require or demand a reversal. [Cit.] ”
Jones v. State,
5. After the jurors had been selected but before they were sworn, the trial court excused two of them on grounds of hardship — one because he had arranged for a vacation which could not be rescheduled and the other because he ran a pharmacy and had no employee to take his place. However, three alternate jurors had been selected, and the trial consequently proceeded with a full panel. Citing
Neal v. State,
This court has previously held that OCGA § 15-12-172 “implicitly authorizes the trial court to exercise its discretion with regard to excusing a juror from the panel.”
Baptiste v. State,
Judgment affirmed.