Summary
In Greenway v. State, 144 Ga. App. 558 (241 S.E.2d 453) (1978), relied on by appellant, the trial judge took no action to advise Greenway, or see that he was advised, of his right to have his sentence reviewed.
Summary of this case from Webb v. StateOpinion
54783.
SUBMITTED NOVEMBER 8, 1977.
DECIDED JANUARY 5, 1978. REHEARING DENIED JANUARY 23, 1978.
Child molestation. Barrow Superior Court. Before Judge Dunahoo.
Thomas M. Spence, for appellant.
Nat Hancock, District Attorney, Richard J. Burkett, Assistant District Attorney, for appellee.
T. J. Moore, amicus curiae.
The defendant appeals his conviction and 15-year sentence for child molestation.
The defendant was visiting at his brother's home, where the victim, a 6-year-old girl, was playing with some other children. He drove off with the child in his car, returned approximately ten minutes later, let her out, upset and crying, and continued driving. She was taken to the hospital where a small tear was found in her vagina, although no evidence of intercourse was discovered. The child had a dollar bill which she said the "man" had given her. The defendant testified that he had been drinking heavily, that he did not know the child was in the car when he drove off with her, and that he did not hurt the child.
1. Although the evidence of guilt was certainly not overwhelming, we hold that it was sufficient to support the verdict. The jury evidently chose to disbelieve the defendant's testimony that he had not caused the injury, as was its prerogative. See Fox v. State, 238 Ga. 387 (1) ( 233 S.E.2d 341) (1977).
2. There is no merit in the contention that the trial judge improperly excluded evidence that the child had testified in a previous trial that the defendant had not harmed her. It was not shown that the girl was inaccessible as a witness, a prerequisite under Code § 38-314 to proof of her testimony at a former trial. See Hewell v. State, 136 Ga. App. 420 (2) ( 221 S.E.2d 219) (1975). Furthermore, the substance of the child's previous testimony was in fact disclosed to the jury.
We note that the trial judge did not inform the defendant of his right to seek review of his sentence by the sentence review board pursuant to Code § 27-2511.1. Although such review is still available following appeal, it is the better procedure for the trial court to advise eligible defendants of the right at the time of sentencing; and we urge this and other trial courts to do so in the future.
Judgment affirmed. Shulman and Birdsong, JJ., concur.