Opinion
A90A1865.
DECIDED DECEMBER 4, 1990.
Cruelty to children. Bibb Superior Court. Before Judge Bell, Senior Judge.
Nancy A. Atkinson, for appellant.
Willis B. Sparks III, District Attorney, Sharon T. Ratley, Howard Z. Simms, Assistant District Attorneys, for appellee.
Defendant appeals his three convictions of cruelty to children, OCGA § 16-5-70.
1. One of the counts of cruelty was that defendant used scalding water to cause burns to the body of a named child, who was then eight months old. When the State sought to introduce 12 photographs depicting injuries suffered by the child defendant objected on the grounds that the pictures were repetitive because there had already been evidence from the presence of the child in court and testimony as to the injuries the child suffered by the doctor who treated the victim. The State argued that the photographs, six of which were taken when the victim was first brought to the hospital and six a few days later, were offered to show the injuries, their extent and what resulted from the delay in obtaining treatment. After hearing both sides, the trial court denied the objection.
Defendant contends in argument to this court that the admission of the second six photographs was error because they were repetitious of the first six, a new ground, and because they were prejudicial, serving only an inflammatory purpose. When a defendant argues one basis at the trial and another on appeal, both arguments are lost. Brinson v. State, 191 Ga. App. 151, 152 (2) ( 381 S.E.2d 292) (1989); Floyd v. State, 188 Ga. App. 24 (1) ( 372 S.E.2d 287) (1988). See MacDonald v. MacDonald, 156 Ga. App. 565 (1) ( 275 S.E.2d 142) (1980).
Even on the merits as to each ground, we find no error. Miller v. State, 179 Ga. App. 100, 101 (2) ( 345 S.E.2d 647) (1986); Frink v. State, 177 Ga. App. 604, 608 (3) ( 340 S.E.2d 631) (1986); Brown v. State, 250 Ga. 862, 866 (5) ( 302 S.E.2d 347) (1983); Love v. State, 259 Ga. 468 (2) ( 383 S.E.2d 897) (1989); Jones v. State, 249 Ga. 605, 608 (2a) ( 293 S.E.2d 708) (1982).
2. Defendant contends that as to the other two convictions there was a variance between the allegations of the indictment and the proof offered at trial. In view of the rule expressed in DePalma v. State, 225 Ga. 465, 469 (3) ( 169 S.E.2d 801) (1969), this argument is rejected. See Dobbs v. State, 235 Ga. 800, 801 (3) ( 221 S.E.2d 576) (1976); Kelly v. State, 188 Ga. App. 362 (2) ( 373 S.E.2d 63) (1988); Shackelford v. State, 179 Ga. App. 595, 596 ( 347 S.E.2d 346) (1986).
Judgment affirmed. Deen, P. J., and Pope, J., concur.