Christopher and Katrina Thompson, husband and wife, were jointly tried and found guilty on two counts of child cruelty and one count of contributing to the deprivation of a minor. Following the denial of their motion for new trial, the Thompsons appeal, citing several enumerations of error. Having examined their enumerations and discerning no error, we affirm.
1. In four enumerations, the Thompsons argue that the evidence was insufficient to sustain the convictions. They contend that the trial court erred in denying their motion for directed verdict on all counts and in denying their motion for new trial. The test established in
Jackson v. Virginia,
So viewed, the evidence showed that C. T, the daughter of Christopher and Katrina Thompson, was primarily cared for by her parents, but had a babysitter a few times per week for about one month in June 1996. At this time, C. T. was about eight months old and could not crawl. Thе babysitter noticed scratches on the child’s body and brought it to the attention of the Thompsons. On another occasion, the babysitter noticed a bruise on the left side of C. T.’s face when Christopher dropped off the child at the babysitter’s home. Christоpher explained that Katrina informed him that the child had “crawled” into a wall. The babysitter became uncomfortable caring for C. T. and was concerned that at eight months old, C. T. could not crawl and would frequently cry. On the advice of her aunt, the bаbysitter stopped babysitting C. T. Several months later in September 1996, Katrina Thompson called the babysitter and explained that C. T. was not moving. The babysitter advised Katrina to call 911. *18 Katrina apparently did not do so, as a few days later Katrina showed up at the babysitter’s home with C. T. and stated that C. T. seemed to be in pain when she moved her arm.
On September 17, 1996, Katrina finally took C. T. to a doctor for a swollen arm. An x-ray was taken of C. T.’s arm, and she cried in pain during the procedure. It was discovered that C. T. hаd fractures to both bones in her right forearm. The fractures were a few weeks old at the time of the x-ray. The x-ray further revealed that C. T. also had four-month-old fractures to her left arm as well, and a chip fracture on her left ankle. A doctor opined that C. T.’s injuries were not accidental. Both Christopher and Katrina were evasive when questioned about C. T.’s injuries, and neither could explain how C. T. received the injuries nor name anyone who might have caused them.
The indictment alleged that the Thompsons caused C. T. excessive physical pain by breaking her bones and by denying her necessary and appropriate medical care. Under OCGA § 16-5-70 (b), a person “commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” The evidence showed that (i) while in the care of the Thompsons, C. T. suffered fractures to her arm causing manifest physical pain, (ii) the Thompsоns refused to seek medical treatment for C. T. even when advised to do so (see
Wolf v. State,
Chung v. State,
In determining the sufficiency of the circumstantial evidence to support a conviction of cruelty to a child (or to withstand a motion for a new trial), the trial court as well as this court will apply a “reasonable hypothesis rule.” This is to say that a conviction based solely upon circumstantial evidence must be supported by facts which not only are consistent with guilt of the accused, but should exclude every reasonable hypothesis save that of the guilt of the accused. This does not mean that the [S]tate must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence. The yardstick by which we determine what in a given case is a reasonable hypothesis is in the first instance a question for the jury. Thus, except where the guilty verdict is unsupportable as a matter of law, this court will not substitute its judgment as to what is a reasonable hypothesis for that of the jury or the trial court.
(Citation omitted.) The evidence, although circumstantial, was suffi
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cient to sustain the convictions for cruelty to children as alleged in the indictment. See
Lackes v. State,
The Thompsons’ argument that the evidence was insufficient to sustain Count 3 is moot in light of the fact that the trial court merged Count 3 into Count 2 for purposes of sentencing. See
Joachim v. State,
2. In their fifth enumeration of error, the Thompsons argue that the court erred in admitting certain similar transaction еvidence. Although they objected to such evidence during a pretrial hearing, they failed to object to the testimony of the witnesses at trial and thereby waived the issue. See
Jones v. State,
3. In four enumerations of error, the Thompsons argue that the court erred in denying their various motions for mistrial. “We review for manifest abuse of discretion a trial court’s denial of a motion fоr a mistrial. We will reverse the trial court’s ruling only if a mistrial is essential to the preservation of the right to a fair trial.” (Citation, punctuation and footnote omitted.)
Richards v. State,
(a) The Thompsons first claim that the trial court erred in denying their motion for mistrial made after а prosecution witness referred to the Thompsons’ refusal to submit to a polygraph examination. They argue that the State intentionally solicited the statement by asking the witness what was the “gist” of a conversation he had with Katrina Thompson. In response to an objection, the State rephrased the question, asking what Katrina said. The witness answered, “Mrs. Thompson said that they would not come in for a polygraph test.” The State argues that it did not intend to solicit such information, and that the witness was asked, prior to testifying, not to mention the polygraph examination. Immediately following the statement, the trial court gave a curative instruction to the jury.
This Court has held that where the defendant and the State do not stipulate that the results of a polygraph test taken by a witness would be admissible at trial, the questioning of a witness regarding those test results is impermissible.
Dorminey v. State,
(b) The Thompsons argue that the court erred in denying their motion for mistrial when counsel for the State commented that he was seeking testimony that C. T. did not sustain any broken bones while in the custody of the Department of Family and Childrеn Services. However, the trial court gave a curative instruction to the jury admonishing them to disregard the comment. Thus, in this instance, the trial court did not manifestly abuse its discretion, and we will not disturb its decision denying a motion for mistrial. See
Glaze v. State,
(c) The Thompsons also mоved for a mistrial when the trial court asked whether the Thompsons denied being the parents of the child. This inquiry by the trial court followed a line of questioning of a witness as to who were the biological parents of C. T. The Thompsons argue that this testimony was allowed in violation of
Bruton v. United States,
4. The Thompsons argue that the court “erred by stopping and continuing the trial, sua sponte, until the next day to allow the [Sítate to obtain x-rays that were not furnished to the appellants as required by the rules of discovery. . . .” They further argue that the court erred in admitting such evidence.
The trial court concludеd proceedings one day at 3:40 p.m., stating that “because of problems beyond the Court’s control we’re going to close for the evening at this point to return in the morning at 9 o’clock.” The record does not reflect that the court conсluded trial for the purpose of allowing the State to acquire x-rays of C. T. When court reconvened the next morning, counsel for the State sought to admit the x-rays into evidence. The State explained that it had acquired the x-rays that same morning. The Thompsons sought to exclude such evidence on the ground that the State failed to provide them the evidence ten days prior to trial as required by OCGA § 17-16-4 (a) (4).
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The Thompsons’ “failure to request a continuance to cure any prejudice which mаy have resulted from the State’s failure to comply with the requirements of OCGA § 17-16-1 et seq. waived [their] right to assert error on appeal stemming from the State’s alleged failure to comply with discovery statutes.” (Citation and punctuation omitted.)
Shelton v. State,
The Thompsons further argue that the court erred in allowing the admission of a photograph of C. T. However, although the photograph was used by a witness to identify C. T., it was not admitted. Therefore, we see no error.
5. The Thompsons argue that еxpert witnesses for the State were allowed to base their opinions on the opinions of other experts in violation of
Jordan v. Ga. Power Co.,
6. The Thompsons’ twelfth enumeration of error is deemed abandoned as it is not supported by citation to authority or argument. See Court of Appeals Rule 27 (c) (2);
Brackins v. State,
7. The Thompsons argue that the trial court erred in overruling their demurrers to the indictment. They complain that the indictment was not specific as to the dates of the alleged offenses. The indictment alleges that the crimes occurred between February 7, 1996, and September 19, 1996. “The test as to the definiteness of the indictment is whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.” (Citation omitted.)
Schwindler v. State,
Where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations, as long as the defendant is not surprised or prejudiced by presentation of evidence that the offenses occurred at a *22 time substantially different from that alleged in the indictment.
(Footnote omitted.)
Demetrios v. State,
8. The Thompsons waived their contention that the State made improper argument during closing statements, by failing to renew their objection or move for mistrial following the trial court’s curative instruction and its invitation to renew the objection if needed. See
Seidenfaden v. State,
Judgment affirmed.