Appellant was convicted of three counts of child molestation. Count 1 alleged that on January 1, 1986, appellant fondled the pubic area of Shanda Johnson, under age 14. Count 2 alleged that during November 1985, appellant fondled the breast of Jеnnifer Davis, also under 14 years of age. Count 3 alleged that during February 1986, appellant again fondled the breast of Jennifer Davis.
1. Appellant argues that the trial court erred in denying his motions for directed verdicts of acquittal on general evidentiary grounds аnd on the specific ground that the State did not establish venue of the offense involving Shanda Johnson in Upson County.
Jennifer Davis testified that during the Thanksgiving holiday in 1985, appellant, who was the choir director of a church in Upson County, approached her while they were alone in the church kitchen. He put his arms around her, fondled her breast, pulled her close to him, and told her she was pretty. She pushed him aside and ran away.
At a Valentine’s Day party at the church in 1986, appellant again approаched her while they were alone. He kissed her and again fondled her breast, telling her afterward she should not tell anyone. She became depressed and tried to kill herself by taking an overdose of pills. Eventually, she told her minister what had occurred аnd, at his urging, she told her parents.
Shanda Johnson testified that she also knew appellant through the church. She was spending the night at his home on New Year’s Eve on January 1, 1986, so as to babysit for appellant’s children the next day. As she was going to sleep in the living roоm, he approached her and put his hand down her underwear touching her pubic area. She fled to the bathroom where she remained until dawn.
The evidence was sufficient to authorize a rational trier of fact in finding appellant guilty of the offenses beyond a reasonable doubt.
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Jackson v. Virginia,
2. Appellant argues that the trial court erred in denying his pretrial motion for the disclosure of records of counseling and therapy sessions between Jennifer Davis and State’s witness Cheryl Cole. He also complains of the trial court’s refusal to allow him to examine these records during the course of the trial, on the ground that witness Cole had used the records to refresh her recollection.
(a) At the commencement of the trial, defense counsel argued that these records should be disclosed under
Bobo v. State,
At trial, Cole testified that she works as a “psychotherapist [and is] a master level psychologist.” In that capacity, she counsels children who have bеen physically or sexually abused, and she began counseling Jennifer in March of 1989. On cross-examination, defense counsel asked this witness how many times she had met with Jennifer, and she responded that they had been having regularly scheduled sessions every two weеks since March. In order to answer cross-examination about the exact number of times she had seen Jennifer, defense counsel suggested that the witness refresh her memory by re-
I viewing her case file which she had brought with her. After counting the number of dates aрpearing in her file, the witness testified that she had see Jennifer 23 times, whereupon defense counsel sought to examine the file. The prosecuting attorney objected on the ground that the contents of the file were confidential. The trial judge sustained this objection, noting that the witness had only counted the number of therapy sessions between her and Jennifer, and she had not otherwise reviewed the contents of the file. Appellant concedes that the records of witness Cole’s counseling and therapy sessions with Jennifer constitute confidential medical records.
Where, during the course of a trial or hearing, a witness in a criminal case examines a document in order to refresh the witness’
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recollection, the defendant has the right to exаmine the document.
Johnson v. State,
Moreover, since the examinаtion sought was based only on the witness’ use of the file to establish an incidental fact, any error in denying the examination would be harmless. That is, it was of little consequence whether the number of bi-weekly meetings between March and the time of trial was 23 or morе or less. Had counsel’s count differed upon review of the file, defendant would not have been aided.
(b) State’s witness Cole testified on cross-examination that Jennifer had told her she had attempted to commit suicide by taking an overdose of sinus mediсation and “[s]he indicated that it had occurred very recently before seeing me, within the last very few months. . . . [I]t was my understanding that she said that it was very recently.” The witness also acknowledged that Jennifer had told her she had recently been involved in a relatiоnship with a young man. Defense counsel argued that the young man’s ending the relationship is what caused Jennifer to attempt suicide. The witness testified that Jennifer had not made such statements to her.
Jennifer had previously testified on cross-examination that shе had been dating this young man, that he had unbuttoned her shirt while they were on a date, and that she had buttoned it back without further incident. She further testified that they did break up and that she tried to kill herself because of this by running a razor blade across her wrist one time, but the razor blade did not cut her. She testified that the first suicide attempt followed the incidents with appellant and occurred several years prior to trial, and the more recent suicide attempt followed her involvement with the young man. Cole testified that it was her understanding that the suicide attempt relating to appellant’s molestation of the victim was the more recent attempt.
Sosebee v. State,
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The trial judge denied the appellant’s pre-trial motion for an in-camera inspection of witness Cole’s records of counseling sessions with the victim because of the appellant’s uncertainty as to whether witness Cole would be testifying as an expert witness. When she was called to testify, appellant did not renew his motion. Consequently, the trial court did not err in failing to conduct the in-camera inspection. See
Swann v. State,
Bobo v. State, supra, is a plurality opinion holding that the statutory рsychiatrist-patient evidentiary privilege must yield to a criminal defendant’s constitutional right of confrontation, upon “a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailаble to him.” Id. at 360 (4).
The inconsistency between Jennifer’s statement concerning the date of the attempted suicide relating to appellant’s molestation of her and witness Cole’s understanding of that date was presented to the jury through the testimony of both witnesses. The evidence sought by appellant was not “critical,” within the meaning of Bobo.
3. Appellant argues that the trial court erred in denying his motion to sever Counts 2 and 3 of the indictment (11-year-old victim Jennifer Davis, November 1985 and February 1986, church relationship) from Count 1 (12-year-old victim Shanda Johnson, January 1986, church relationship).
Two or more offenses may be tried together when the offenses: “(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. . . .”
Dingler v. State,
What was true in
Jordan v. State,
4. Appellant argues that the trial court erred in imposing sentence on both Counts 2 and 3 (Jennifer Davis) of the indictment, because the offenses charged in these counts differed only as to the dates of the offenses and the dates were not alleged as essential aver-ments.
Counts 2 and 3 charged appellant with having committed separate acts of child molestation upon the same victim on different dates in different years. “Where an averment in one count of an accusation or indictment distinguishes it from all other counts, either by alleging a different set of facts
or
a different date which is made an essential averment of the transaction, the State may on conviction punish the defendant for the various crimes. . . .” (Emphasis supplied.)
Wiley v. State,
5. Appellant argues that the trial court erred in restricting his cross-examination of State’s witness Cole.
Appellant sought to ask witness Cole hypothetical questiоns in regard to whether a child who had been sexually molested might attempt to commit suicide because of a broken “serious” relationship with a young man. The state objected on grounds that the term “serious” is subject to varying connotations, see
Smith v. State,
Appellant stated he had a witness whose testimony would establish a foundation for this line of questioning, and the trial judge stated he would permit such witness to testify. Appellant asked if he could recall witness Cole after the other witness testified and pose the requested hypothetical question to her. The trial judge responded that he could. Appellant did not thereafter seek to recall Cole. We find no error.
6. Finally, appellant complains of the admission of testimоny by state’s witness Cole that as far as she could determine, Jennifer Davis and her parents were being truthful. See
State v. Oliver,
188 Ga. App.
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47, 50 (2) (
Judgment affirmed.