Weldy v. State

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521 S.E.2d 858 (1999)

239 Ga. App. 849

WELDY v. The STATE.

No. A99A1539.

Court of Appeals of Georgia.

August 27, 1999.

Reconsideration Denied September 8, 1999.

*859 Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

Defendant Michael Calvin Weldy appeals his jury conviction for two counts of aggravated child molestation and two counts of child molestation.

1. Defendant contends the trial court erred in excluding evidence that the four-year-old victim may have falsely accused another person (her babysitter) of child molestation.

Before admitting proof of a victim's false allegation of sexual misconduct by another, the trial court must make a threshold determination outside the presence of the jury in the exercise of its discretion and determine whether a reasonable probability of falsity exists. Smith v. State, 259 Ga. 135, 136(1), 377 S.E.2d 158. The definition of "reasonable probability" in such context has been said to be a probability sufficient to undermine confidence in the outcome. Strickland v. State, 205 Ga.App. 473, 474, 422 S.E.2d 312. At a hearing on this subject in the case sub judice, it was shown that the victim, when she was three years of age, affirmed during an interview with a Department of Family & Children Services ("DFCS") caseworker that her babysitter touched her "bottom." There is no indication in the record, however, that this allegation is false, or that it even related to a prior act of child molestation. The trial court recognized these deficiencies and excluded defendant's use of the victim's statement regarding her babysitter. Under such circumstances, we cannot say the trial court abused its discretion in excluding defendant's use of the victim's prior statement regarding her babysitter. See Eason v. State, 215 Ga.App. 614, 451 S.E.2d 820. It is highly unlikely that introduction of this evidence would have aided defendant's cause or otherwise undermined the State's case. See Strickland v. State, 205 Ga.App. at 474, 422 S.E.2d 312, supra.

2. Defendant contends in his second enumeration of error that "[t]he trial court erred in its determination that the alleged victim's taped statements were reliable." An examination of the trial transcript reveals that defendant waived his right to raise this assertion on appeal by failing to object at trial to admission of an audiotape and a videotape of the victim's interview with DFCS caseworkers. Indeed, the trial transcript reveals that defendant's trial attorney insisted that the jury consider these recordings and follow along with a transcript of the victim's taped interview. A criminal defendant cannot complain of errors or rulings which his own conduct procured or aided in causing. See Hawkins v. State, 195 Ga.App. 739(2), 395 S.E.2d 251. Arguments challenging the admission of statements by the victim other than her taped interview constitute unauthorized expansions of defendant's second enumeration of error. Krebsbach v. State, 209 Ga.App. 474, 475(2), 433 S.E.2d 649.

3. Defendant's final enumeration of error challenges the Hall County Sheriff's practice of greeting prospective jurors as they enter the courthouse for jury duty. We reject this assertion for the same reasons this Court rejected an identical assertion in House v. State, 237 Ga.App. 504, 506(2)(a), 515 S.E.2d 652.

Judgment affirmed.

ANDREWS, P.J., and RUFFIN, J., concur.