Bell v. State

180 Ga. App. 170 (1986)

348 S.E.2d 712

BELL v. THE STATE (two cases).

72653, 72654.

Court of Appeals of Georgia.

Decided September 2, 1986.

*171 L. James Weil, Jr., for appellants.

Lewis R. Slaton, District Attorney, H. Allen Moye, A. Thomas Jones, Assistant District Attorneys, for appellee.

CARLEY, Judge.

The respective appellants in these two appeals are a husband and wife who were separately indicted but jointly tried for two counts of child molestation. The jury returned guilty verdicts, upon which judgments of conviction and sentences were entered. After their respective motions for new trial were denied, each appellant filed a separate notice of appeal. Because both appeals raise identical issues, they have been considered as companion cases and are hereby consolidated for disposition in this single opinion.

1. The general grounds are enumerated. After a review of the entire record, we find that a rational trior of fact could reasonably have found, from the evidence adduced at trial, proof of appellants' guilt beyond a reasonable doubt of either the actual commission or the aiding and abetting of the commission of acts of child molestation. See generally Padgett v. State, 175 Ga. App. 818 (334 SE2d 883) (1985); Carter v. State, 168 Ga. App. 177 (3) (308 SE2d 438) (1983).

2. Appellants enumerate as error the denial of their motion for mistrial. The motion was predicated upon a comment made by the assistant district attorney during the cross-examination of appellant Troy Bell. The contention is that the comment erroneously intimated that the burden of proof was somehow on the defense. However, a review of the transcript shows that the comment was merely an oral supposition on the part of the assistant district attorney that a named individual was "out in the hall and [was] going to testify." It is permissible to comment upon whether a defendant has failed to produce witnesses. See Wood v. State, 159 Ga. App. 221, 222 (3) (283 SE2d 79) (1981). There was no intimation that appellants had any burden to produce the individual as a witness in their defense. The instant comment was not erroneous and the trial court did not err in denying appellants' motion for mistrial. See Creamer v. State, 168 Ga. App. 790, 791 (4) (310 SE2d 560) (1983).

Judgments affirmed. McMurray, P. J., and Pope, J., concur.