Eugene Sherman II was charged by accusation with criminal trespass, family violence battery, family violence simple battery, and cruelty to children in the third degree arising out of an incident of violence between Sherman and his estranged wife. The jury found Sherman guilty of simple battery and trespass but not guilty on the other charges. Sherman contends the trial court erred with regard to three evidentiary issues and one jury charge.
Construed in favor of the verdict the evidence shows that Sherman and his wife Vericka were separated and that they exchanged physical custody of their three children on Sunday afternoons. On Sunday, May 25, 2008, Sherman drove to Vericka’s apartment and rang the doorbell, and Vericka, who was on the phone, let him in. Sherman was angry because Vericka was on the phone, and he threw her phone out a window and started choking her. He slammed her on the floor and continued to punch and choke her. An officer witnessed red marks on Vericka’s arm and right elbow. There was evidence that the ten-year-old son heard his parents fighting. Sherman appeared to leave but then hit and broke a window in the children’s room of the apartment in an effort to find one of his children. Sherman admitted breaking the window and having entered through the same window on a prior occasion.
1. Sherman contends the trial court erred by compelling Vericka to testify after she invoked her marital privilege. The trial court ruled that she was required to testify under the statutory exception to the privilege that applies “in proceedings in which the husband or wife is charged with a crime against the person of a minor child. ...” OCGA § 24-9-23 (b). Sherman was charged with cruelty to children in the third degree under OCGA § 16-5-70 (d). That Code section outlaws an aggressor from allowing or having knowledge of a child witnessing certain crimes including family violence. A person commits the offense when:
(1) Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or
(2) Such person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.
The issue here is whether OCGA § 16-5-70 (d) is a “crime against *313 the person of a minor child,” given that no physical contact is involved.
This Court recently held that the crime of sexual exploitation of children by knowingly possessing and controlling photographs that depict a minor or a portion of a minor’s body engaged in sexually explicit conduct under OCGA § 16-12-100 (b) (8), was a “crime against a person of a minor child” for the purposes of the exception to the marital privilege.
Peck v. State,
Here, the trial court construed the term “crime against the person of a minor child” as intending to distinguish crimes against the property of a minor; it also reasoned that the phrase “against the person of a minor” was not restricted to physical contact but could also include mental or emotional pain.
“[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” (Citations and punctuation omitted.)
Hollowell v. Jove,
2. Sherman contends the trial court improperly prevented him from asking Vericka during cross-examination, “What is the maximum penalty for perjury?” The State objected, and the court sustained the objection on the ground that it called for a legal *314 opinion. Sherman’s counsel then was allowed to ask “Do you want to be convicted of or punished for perjury?” as well as other questions about whether she had changed her story.
The trial court did not abuse its discretion by prohibiting the witness from testifying as to what the law is.
Cheesman v. State,
3. Sherman contends the trial court erred by refusing to charge on “grave suspicion,” which charge is entitled “Bare Suspicion” in the pattern jury instructions.
1
But the evidence raised more than a bare suspicion of guilt.
Hodo,
4. Finally, Sherman contends the court erred by compelling his son to testify over his, Sherman’s, objection. He argues that OCGA § 24-9-27 (a) applies. That Code section provides:
No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family.
But the Supreme Court has made clear that the rule does not apply “if the proposed evidence is material to the issues in the case” as opposed to “where the proposed answer has no effect on the case except to impair the witness’ credibility.”
Brown v. State,
Judgment affirmed.
Notes
See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.20.20 (“Facts and circumstances that merely place upon the defendant a grave suspicion of the crime charged or that merely raise a speculation or conjecture of the defendant’s guilt are not sufficient to authorize a conviction of the defendant.”).