Defendant James Arnold Roberson was convicted by a jury of two counts of child molestation. The victims were two brothers who were three and five years old when the crimes occurred. Roberson appeals following the denial of his motion for new trial.
1. (a) Roberson first argues the trial court erred in denying his motion for new trial because the evidence was insufficient as a matter of law to support his convictions. Viewed in a light most favorable to the verdict, the evidence showed that in June 1989 the victims, Jonathon and Joshua S., and their parents went to stay with their paternal grandparents. Roberson was living with the grandparents at that time. On the evening of June 25, Jonathon started screaming that his rear end hurt while his mother was giving him a bath. She noticed the area around his anus was red and, when she asked him what was wrong, he said “Robby stuck his finger up me.” Jonathon made the same statement to his father when he questioned Jonathon. The parents contacted the authorities and took Jonathan to the emergency room that night. Jonathon also told the attending physician that Robby had put his finger in his rear. The physician, who found irritation with redness around Jonathon’s anus, testified this was consistent with anal penetration and revealed to him the possibility of child abuse. Jonathon testified that his mother had been bathing him in the tub and had left the room to get his clothes when Robby came in and stuck his finger in his rear. Joshua testified that Robby had put his finger in his butt while he was in the bathroom being bathed and his mother was turned around. He did not immediately tell anyone because Robby threatened to hurt him if he did. The mother testified that Robby would sometimes assist her in bathing the children. Roberson denied having molested either of the children. Although not overwhelming, the evidence was sufficient to authorize rational jurors to find Roberson guilty beyond a reasonable doubt of both counts of child molestation.
Jackson v. Virginia,
(b) Roberson next argues the evidence was insufficient as to Count 1 because the State failed to prove he committed the offense on the date alleged in the indictment. Count 1 of the indictment charged Roberson with committing the offense of child molestation on Jonathon S. on June 25, 1989. “In proving the time of the commission of an offense the State is not, as a general rule, restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations. The date here was not alleged as material so as to require its proof with specificity.” (Citations and punctuation omitted.)
Moore v. State,
(c) Roberson also argues the evidence was insufficient to establish venue in Spalding County. Where, as here, the defendant has not contested venue at trial, slight evidence of venue is sufficient.
Vincent v. State,
2. Roberson next argues the trial court erred in not allowing him to have an independent examination conducted as to the competency of the two minor children. He contended in his motion that such an examination was necessary to test the reliability of the children’s testimony. On appeal, however, he contends the trial court was required to hold a competency hearing pursuant to the Supreme Court’s decision in
Sizemore v. State,
3. Roberson claims the trial court erred in allowing the State to introduce evidence of his homosexual relationship with the children’s grandfather. Evidence of homosexuality (and indications of such sexual preferences) are admissible to show a defendant’s bent of mind toward the sexual activity with which he was charged. See
Cunning
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ham v. State,
4. He next argues the trial court erred in allowing Carolyn Harmon, a clinical social worker who treated the children, to give her opinion as to the children’s credibility. During the State’s direct examination of Harmon, the prosecutor asked if she had an opinion as to the children’s ability to understand the nature of an oath and to testify in court. The trial court overruled Roberson’s objection to the question and the witness responded that she believed the children understood the difference between the truth and a lie and the consequences of lying. This case is controlled by our decision in
State v. Oliver,
While an expert may testify generally about the ability of children of a certain age group to distinguish between the truth and a lie, Harmon’s testimony that she believed the victims were capable of distinguishing truth from fantasy essentially amounted to her testifying as to their credibility. Because the evidence against Roberson was not overwhelming and credibility of the witnesses was a key issue in the case, we cannot hold this error to be harmless. See
Guest v. State,
5. We will address Roberson’s remaining enumerations since they are capable of recurring on retrial. He next contends the trial court erred in admitting, pursuant to OCGA § 24-3-16 third-party testimony concerning out-of-court statements made by the children without making a finding of “sufficient indicia of reliability” as required by the statute. We disagree. “[W]e have held that it is implicit in the [trial court’s] admission of statements pursuant to OCGA § 24-3-16 that the trial court made the necessary finding [of sufficient indicia of reliability].”
Calloway v. State,
6. In a related enumeration, he claims the trial court erred in allowing Harmon to testify that Joshua told her Robby put his finger in his butt and touched his private in front and that he saw Robby put his finger in Jonathon’s butt. Harmon’s testimony that Joshua told her Robby had molested him was properly admitted under OCGA § 24-3-16. Even assuming Harmon’s testimony that Joshua told her he saw Robby molest Jonathon was not permissible under this section, the admission of this testimony was harmless error since it was cumulative of other testimony presented at trial. See
Kelly v. State,
7. The next enumeration is that the trial court erred in admitting the testimony of an investigator that the grandfather told him that he and Roberson were involved in a homosexual relationship. Roberson objected to the testimony as hearsay which the trial court overruled because the grandfather had already testified to the relationship. Even assuming the investigator’s testimony was inadmissible hearsay, we find no reversible error since “[e]vidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence. [Cits.]”
Lynn v. State,
8. Roberson claims the trial court erred in allowing the emergency room physician to answer a hypothetical question which assumed facts not in evidence. On redirect, the prosecutor asked the doctor whether conducting a rectal examination of a child using a sanitary glove and lubrication would likely cause an inflammation of the rectal area. The doctor responded that it should not. Roberson claims this testimony was prejudicial because it implied that unlawful insertion of a dirty finger could cause such inflammation. We find no error here since defense counsel himself asked the doctor a similar question on cross-examination. In any event, the fact that an expert’s opinion may be based in part on facts not in evidence goes to its weight, not its admissibility.
Krause v. Vance,
9. In his next enumeration, Roberson argues the trial court erred in allowing the State to ask a character witness whether she would still believe Roberson’s character was good if it was proved to her that he had in fact molested the two boys. We have held that it is not error to allow the State to pose such a hypothetical question to a character witness on cross-examination. See
Mathis v. State,
10. Roberson argues it was error to refuse to give one of his jury instructions on the competency of the children to testify. We find no error in the refusal to give the charge as it contained an incorrect
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statement of the law concerning the competency of child witnesses. See OCGA § 24-9-5 (b);
Syfrett v. State,
11. In his last enumeration, Roberson contends the trial court erred in charging the jury from Volume 2 of the Suggested Pattern Jury Instructions for Criminal Cases that direct evidence includes exhibits admitted during trial. He argues the charge was confusing because it instructed the jury that exhibits are direct evidence pointing immediately to the question at issue (his guilt of the crimes charged) when, in actuality, exhibits are real or physical evidence which may or may not be direct evidence. Although Roberson does not target any particular exhibits, he appears to argue that several of the exhibits admitted (which included magazine pictures showing men engaged in homosexual activity) were not direct evidence but circumstantial evidence which did not point immediately to his guilt.
The trial court charged the jury as follows: “As to direct evidence, ladies and gentlemen, that is the testimony given by a witness who has seen, or who has heard the facts to which he has testified. It includes any exhibits that have been admitted during the trial of the case. It is that evidence which points immediately to the question at issue.” This charge is a correct statement of the general law and a charge on direct evidence was warranted.
Moore v. State,
Judgment reversed.