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DUDLEY v. THE STATE.
A90A1865.
BEASLEY, Judge.
Cruelty to children. Bibb Superior Court. Before Judge Bell, Senior Judge.
Defendant appeals his three convictions of cruelty to children, OCGA 16-5-70.
1. One of the counts of cruelty was that defendant used scalding water to cause burns to the body of a named child, who was then eight months old. When the State sought to introduce 12 photographs depicting injuries suffered by the child defendant objected on the grounds that the pictures were repetitive because there had already been evidence from the presence of the child in court and testimony as to the injuries the child suffered by the doctor who treated the victim. The State argued that the photographs, six of which were taken when the victim was first brought to the hospital and six a few days later, were offered to show the injuries, their extent and what resulted from the delay in obtaining treatment. After hearing both sides, the trial court denied the objection.
Defendant contends in argument to this court that the admission of the second six photographs was error because they were repetitious of the first six, a new ground, and because they were prejudicial, serving only an inflammatory purpose. When a defendant argues one basis at the trial and another on appeal, both arguments are lost. Brin- son v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989); Floyd v. State, 188 Ga. App. 24 (1) (372 SE2d 287) (1988). See MacDonald v. MacDonald, 156 Ga. App. 565 (1) (275 SE2d 142) (1980).
Even on the merits as to each ground, we find no error. Miller v. State, 179 Ga. App. 100, 101 (2) (345 SE2d 647) (1986); Frink v. State, 177 Ga. App. 604, 608 (3) (340 SE2d 631) (1986); Brown v. State, 250 Ga. 862, 866 (5) (302 SE2d 347) (1983); Love v. State, 259 Ga. 468 (2) (383 SE2d 897) (1989); Jones v. State, 249 Ga. 605, 608 (2a) (293 SE2d 708) (1982).
2. Defendant contends that as to the other two convictions there was a variance between the allegations of the indictment and the proof offered at trial. In view of the rule expressed in DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969), this argument is rejected. See Dobbs v. State, 235 Ga. 800, 801 (3) (221 SE2d 576) (1976); Kelly v. State, 188 Ga. App. 362 (2) (373 SE2d 63) (1988); Shackelford v. State, 179 Ga. App. 595, 596 (347 SE2d 346) (1986).
Willis B. Sparks III, District Attorney, Sharon T. Ratley, Howard Z. Simms, Assistant District Attorneys, for appellee.
Nancy A. Atkinson, for appellant.
DECIDED DECEMBER 4, 1990.
Saturday May 23 07:00 EDT


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