Andraus Austin was convicted in Douglas County of armed robbery, OCGA § 16-8-41; aggravated assault, OCGA § 16-5-21; escape, OCGA § 16-10-52; possession of a firearm during the commission of a felony, OCGA § 16-11-106; and possession of a firearm by a convicted felon, OCGA § 16-11-131.1 Following the denial of his motion for new trial, Austin appeals, contending the trial court erred in allowing and admitting the victim’s deposition; Austin also challenges the sufficiency of the evidence. Finding no error, we affirm. 1. In related claims of error, Austin contends the trial court erred in allowing the State to take a deposition of the victim and to introduce the deposition in lieu of calling her to testify at trial. Austin contends the deposition was not authorized by OCGA § 24-10-130 b 4 because the victim was not “so sick or infirm as to afford reasonable grounds to believe that such witness would be unable to attend the trial.” In addition, Austin contends introduction of the deposition was not authorized by OCGA § 24-10-135 because the trial court did not find that the victim was unavailable to testify at trial. The question of whether a witness is unavailable is a matter within the sound discretion of the trial court, and a trial court’s decision will be reversed only for an abuse of that discretion. See Tanner v. State , 213 Ga. 820, 821 3 102 SE2d 176 1958 inaccessibility of witness under predecessor to OCGA § 24-3-10, “Testimony of witness on former trial”.
At the hearing at the State’s motion to take the victim’s deposition, the victim’s doctor testified that the victim is 80 years old and has a brain tumor which predisposes her to have episodes of dizziness and vertigo. In addition, the victim has generalized anxiety disorder such that when she is exposed to unfamiliar or stressful public situations she sometimes suffers “spells” which involve chest pains, shortness of breath, blurred vision, confusion, and loss of consciousness. The victim’s condition was not expected to improve. The doctor predicted that the victim would suffer these symptoms if made to appear in a courtroom and such would be detrimental to her health. The trial court found that OCGA § 24-10-130 b 4 was satisfied because the victim’s brain tumor, vertigo, and general anxiety disorder physically prevented the victim from attending the trial and could affect her ability to testify in future proceedings. Based on the evidence received, the trial court was authorized to find that the victim was “so sick or infirm as to afford reasonable grounds to believe that such witness would be unable to attend the trial.” OCGA § 24-10-130 b 4. Under these circumstances, the trial court did not abuse its discretion in granting the State’s motion to take the victim’s deposition. Davis v. State , 238 Ga. App. 84, 86 2 517 SE2d 808 1999.
