Tharpe v. StateTharpe v. State
- Reporters:
- , ,
- Before:
- Pope
Dеfendant Charles Tharpe was convicted of the offense of sexual battery.
1. We find no merit to defendant’s contention that
2. Defendant contеnds the trial court improperly restricted his cross-examination of the victim in this case by disallowing сertain questions concerning the victim’s testimony before the Grand Jury. Contrary to defendant’s contеntions on appeal, the record shows the trial court allowed the defendant to question the victim about inconsistencies between her trial and Grand Jury testimony. Moreover, the trial cоurt allowed the jury to hear a tape recording of the victim’s testimony before the Grand Jury therеby providing an additional opportunity for the jury to compare the testimony the victim gave in *901 that proceeding with that given at trial. This enumeration is without merit.
3. It is abundantly clear from the record in this сase that part of defendant’s trial strategy was to discredit the victim’s testimony by showing inconsistencies between her trial testimony and her pre-trial statements, including her testimony before the Grand Jury. The veracity of the victim was clearly at issue in this case and the State was thus entitled to introduce testimony concerning the prior consistent statements of the victim. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); see also Carroll v. State, 261 Ga. 553 (1) (408 SE2d 412) (1991). Defendant’s third enumeration is therefore without merit.
4. Defendant argues that the trial court abused its discretion because it did not allow the defendant to recall the victim after the State rested. “ ‘The conduct of the trial in this respect lies within the discretion of the trial judge, and in the absence of a showing of an abuse of thе discretion, his actions must be affirmed.’ [Cit.] The transcript reveals no abuse in this case.” Mize v. State, 152 Ga. App. 190, 192-193 (4) (262 SE2d 492) (1979). Although the defеndant posits in his brief to this court that he should have been allowed to recall the witness after the introduction of the tape of the Grand Jury proceedings “for the purpose of demonstrаting to the jury the inconsistencies which would make her credibility suspect,” the record shows that the defendant’s request to recall the witness and the trial court’s denial of that request occurred before the tape was played. When the State objected to the witness being recalled, defendant responded that he was entitled to call the witness “unless there is some point of lаw which would prevent me from calling her for the specific purpose of laying a foundatiоn for my part of the case.” The defendant did not renew his request to recall the witness for the рurpose of additional cross-examination after the tape was played. Moreоver, as noted above, the court previously allowed the defendant to cross-examinе the witness about alleged inconsistencies between her Grand Jury and trial testimony and the jury was able, through the playing of the tape of the Grand Jury proceedings, to compare the victim’s testimony in both proceedings. Under the circumstances described herein, we find the trial court did not abuse its discretion by refusing to allow the defendant to recall the victim for additional testimony.
5. During clоsing argument to the jury the prosecutor improperly referred to the standard of reasonable doubt as “something defense lawyers use as some kind of mystical thing . . .” and argued to the jury that they cоuld convict the defendant if they were “pretty certain” of his guilt. The defendant objected to these improper statements and the trial court overruled the objection and instructed the jury thаt what the lawyers said in argument was not the law, and that the court would instruct the jury concerning the aрplicable law. De *902 fendant did not renew his objection, ask for additional curative instructions or move for a mistrial following these instructions. “It is well established that if [defendant] deemed the remedy inаdequate, it was incumbent upon [him] to seek [additional] curative instructions or move for a mistrial, which [he] did not do.” Timberlake v. State, 200 Ga. App. 64, 65 (1) (406 SE2d 537) (1991). Consequently, we are without authority to address defendant’s fifth enumeration of error, inаsmuch as defendant failed to take the necessary steps to preserve this issue for appellate consideration. See, e.g., Johnson v. State, 197 Ga. App. 384 (2) (398 SE2d 432) (1990); Livingston v. State, 193 Ga. App. 502 (1) (388 SE2d 406) (1989); Dorsey v. State, 188 Ga. App. 695 (2) (374 SE2d 102) (1988).
6. Contrary to defendant’s final enumeration of error, the evidence adduced against him at trial was sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. Johnson, J., and Justice George H. Carley concur.