Hurst v. State

166 Ga. App. 852 (1983)

305 S.E.2d 663

HURST v. THE STATE.

66005.

Court of Appeals of Georgia.

Decided June 8, 1983.

T. Michael Martin, for appellant.

Robert E. Keller, District Attorney, Mary Jane Stewart, *853 Assistant District Attorney, for appellee.

POPE, Judge.

Claude Burnette Hurst brings this appeal from his conviction of child molestation. Held:

1. Defendant first enumerates as error the trial court's refusal to charge the jury as to the limited purpose for which certain testimony was being admitted prior to its being admitted. The subject testimony was given by a nine-year-old girl and related to her experiences with the defendant. This testimony was admitted for the purpose of showing defendant's motive, scheme, design and bent of mind since the witness' experiences corresponded closely to the experiences testified to earlier by the victim in this case. "In sexual offense crimes evidence of similar prior acts [and also, as in this case, contemporaneous acts] is admissible to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the acts charged." Phelps v. State, 158 Ga. App. 219 (2) (279 SE2d 513) (1981).

The record discloses that the trial court gave proper, limiting instructions to the jury shortly after the conclusion of the nine-year-old witness' testimony; the court also gave these instructions again during its general charge to the jury. In our view, the fact that these instructions were given after the testimony had been given rather than before is of no consequence, the critical issue being that the instructions were in fact given. Cf. Harrell v. State, 241 Ga. 181 (2) (243 SE2d 890) (1978); Morris v. State, 228 Ga. 39 (8) (184 SE2d 82) (1971).

2. Defendant's remaining enumeration asserts as error the trial court's determination that the nine-year-old witness was competent to testify. However, our review of the trial transcript in light of the test set forth in Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981), persuades us that the trial court was authorized in finding the child competent to testify.

Judgment affirmed. Quillian, P. J., and Sognier, J., concur.