Allen v. State

163 Ga. App. 586 (1982)

295 S.E.2d 549

ALLEN v. THE STATE.

64552.

Court of Appeals of Georgia.

Decided September 17, 1982.

Ellis C. Smith, Jr., Franklin H. Thornton, for appellant.

Arthur E. Mallory III, District Attorney, Gerald S. Stovall, Assistant District Attorney, for appellee.

BANKE, Judge.

The defendant was tried upon a 2-count indictment for child molestation and found guilty on one count. On appeal, he enumerates *587 as error, among others, the admission over objection of evidence that he had committed other acts similar to those charged in the indictment. Held:

1. The victim named in the indictment was the 9-year-old sister of the defendant's wife. The testimony at issue concerned the attempted sodomy of the victim's 12-year-old brother and a number of rapes in which the victim's then 15-year-old sister was the complainant. As we recently held in Phelps v. State, 158 Ga. App. 219 (2) (279 SE2d 513) (1981), "[t]he sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible." This enumeration of error is without merit.

2. Next, the defendant contends that the trial court erred in refusing to sever the two counts charged in the indictment. Regardless of the merits of this contention, however, "it is clear that no harm resulted to this defendant from the consolidation because the jury returned a verdict of not guilty on one of the . . . [counts] . . ." Bell v. State, 141 Ga. App. 277 (1) (233 SE2d 253) (1977).

3. Finally, the defendant contends that the trial court erred in his determination that the 9-year-old victim was competent to testify. "`It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness.' `The determining factor in deciding the competency of a witness to testifying is not age, but the ability to understand the nature of an oath. The decision as to the ability or competency of the witness (child or otherwise) to testify is left to the sound discretion of the trial court, and this court will not interfere with its judgment, where it does not appear such discretion has been manifestly abused.' [Cit.]" Zilinmon v. State, 234 Ga. 535 (4) (216 SE2d 830) (1975). Our review reveals no abuse of discretion.

Judgment affirmed. McMurray, P. J., and Birdsong, J., concur.