NEWPORT v. STATE

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Court of Appeals of Georgia.

NEWPORT v. The STATE.

No. A96A2505.

Decided: January 22, 1997

Mitchell & Mitchell, E. Neil Wester, III, Gee G. Vaughn, Dalton, for appellant. Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

Defendant was tried before a jury and convicted of aggravated child molestation and child molestation.   This appeal followed the denial of defendant's motion for new trial.   Held:

1. Defendant contends the trial court erred in sentencing him for two separate offenses, arguing that the two offenses involved the same conduct and the same victim.

 “ ‘If both convictions were based upon the same, single act, only one conviction could stand.  (Cit.)’ Garrett v. State, 188 Ga.App. 176(3) (372 S.E.2d 506) (1988).   See also LaPalme v. State, 169 Ga.App. 540(1) (313 S.E.2d 729) (1984).”  Huggins v. State, 192 Ga.App. 820, 821(2), 386 S.E.2d 703.   In the case sub judice, defendant was charged with aggravated child molestation based on his having placed his sex organ in contact with the child's vagina and vaginal area, “which did result in physical harm to said child,” and with child molestation based on his having touched the victim's breasts, vagina and vaginal area.   The aggravated child molestation offense was proved without reference to the act of child molestation and was factually and legally distinct from it.   Specifically, the child molestation conviction is supported by the 13-year-old victim's testimony that defendant touched her breasts, vagina and vaginal area on one occasion in May 1995, and the aggravated child molestation conviction is supported by the child's testimony that defendant placed his sex organ in contact with her vagina and vaginal area, causing the child physical trauma, on another occasion in May 1995.   Accordingly, since the indictment charged defendant with committing the two crimes by means of separate and different sexual acts-each factually and legally distinct from the other and proved without reference to the other-the trial court did not err in entering judgments of conviction and sentences against defendant on each of the two offenses.  Garrett v. State, 188 Ga.App. 176, 177(3), 372 S.E.2d 506, supra.

2. Next, defendant contends the trial court erred in failing to give the jury, without request, instructions that similar transactions evidence introduced by the State was admitted for a limited purpose and to describe that purpose.

 “When evidence is admitted for a limited purpose it is not error for the trial court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a proper request to so instruct the jury.  Moore v. State, 202 Ga.App. 476, 479(3), 480 (414 S.E.2d 705);  Thomas v. State, 199 Ga.App. 49, 50(4) (404 S.E.2d 315).”   Bell v. State, 219 Ga.App. 553, 554(2), 466 S.E.2d 68.   In the case sub judice, defendant made no such request to charge.   He therefore was not entitled to a limiting instruction upon admission of the similar transaction evidence or in the general charge.  Evans v. State, 201 Ga.App. 20, 28(8), 410 S.E.2d 146.

 3. Defendant's contention that the evidence is insufficient to sustain his conviction for aggravated child molestation is without merit.   The victim's testimony alone is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of aggravated child molestation as charged in the indictment.  Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560;  Hardy v. State, 210 Ga.App. 811, 813(4), 437 S.E.2d 790.

Judgment affirmed.

McMURRAY, Presiding Judge.

JOHNSON, J., concurs. RUFFIN, J., concurs in the judgment only.