shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.1.
(Ga. L. 1950, p. 387, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 408, § 1; Code 1933, § 26-2019, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1984, p. 685, § 1; Ga. L. 1984, p. 1495, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1987, p. 617, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1993, p. 715, § 1; Ga. L. 1994, p. 1959, § 6; Ga. L. 1995, p. 957, § 4; Ga. L. 1997, p. 1578, § 1; Ga. L. 2006, p. 379, § 11/HB 1059; Ga. L. 2009, p. 729, § 1/HB 123.)
Cross references.- Actions for childhood sexual abuse, § 9-3-33.1.
Computer pornography and child exploitation prevention, § 16-12-100.2.
Televising testimony of child who is victim of offense under subsection (c) of this Code section, § 17-8-55.
Testimony as to child's description of sexual contact or physical abuse, § 24-8-820.
Visitation with minors by convicted sexual offenders while imprisoned, § 42-5-56.
Editor's notes.- Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994'."
Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:
"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and
"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."
Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."
Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides: "In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other sections, subsections, sentences, clauses, or phrases of this Act, which shall remain of full force and effect as if the section, subsection, sentence, clause, or phrase so declared or adjudged invalid or unconstitutional were not originally a part hereof. The General Assembly declares that it would have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional."
Ga. L. 1994, p. 1959, § 18, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 1995, upon ratification by the voters of this state at the 1994 November general election of that proposed amendment to Article IV, Section II, Paragraph II of the Constitution authorizing the General Assembly to provide for mandatory minimum sentences and sentences of life without possibility of parole in certain cases and providing restrictions on the authority of the State Board of Pardons and Paroles to grant paroles.... " That amendment was ratified by the voters on November 8, 1994, so the amendment to this Code section by this Act became effective on January 1, 1995.
Ga. L. 1995, p. 957, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Child Protection Act of 1995'. "
Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."
Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Law reviews.- For article recommending more consistency in age requirements of law pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 95 (1997). For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). For article, "Inconsistencies in Georgia's Sex-Crime Statutes Teach Teens that Sexting is Worse than Sex," see 67 Mercer L. Rev. 405 (2016). For note, "Pedophilia, Exhibitionism, and Voyeurism: Legal Problems in the Deviant Society," see 4 Ga. L. Rev. 149 (1969). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U. L. Rev. 519 (2005). For note, "Calling on the Legislature: Dixon v. State and Georgia's Statutory Scheme to Protect Minors from Sexual Exploitation," see 56 Mercer L. Rev. 777 (2005). For comment, "Civil Contempt and Child Sexual Abuse Allegations: A Modern Solomon's Choice?," see 40 Emory L.J. 203 (1991).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, annotations decided prior to the 1994 amendment of subsection (d) are included in the annotations for this Code section.
Constitutionality.
- Defendant was indicted for various acts that clearly were prohibited by statute as being immoral or indecent; therefore, defendant had statutory notice that the acts were prohibited. Davidson v. State, 231 Ga. App. 605, 499 S.E.2d 697 (1998).
No violation of due process or equal protection.
- Court rejected the contention that there is no rational basis for treating child molestation based on an act of sodomy differently from child molestation based on other acts and that the different treatment violates the equal protection and due process rights under the United States and Georgia Constitutions. The General Assembly could reasonably conclude that the psychological well-being of minors is more damaged by acts of sodomy than by acts of intercourse and that such acts warrant a greater punishment. Odett v. State, 273 Ga. 353, 541 S.E.2d 29 (2001).
Statutory scheme to protect children under 14 (now 16).
- Together, O.C.G.A. §§ 16-6-3,16-6-4, and16-6-5 provide a general statutory scheme giving protection to both male and female children under the age of 14 (now 16), regardless of the offender's gender, and thus are not invalid as depriving this defendant of equal protection of the law. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).
Juvenile male defendant convicted of statutory rape was not deprived of equal protection, even though the statutory rape law applies only to a male engaging in sexual intercourse with an underage female, since, under the statute on child molestation, a female who engages in sexual intercourse with a male under the age of 14 is subject to the same penalties. In re B.L.S., 264 Ga. 643, 449 S.E.2d 823 (1994).
Effect of amendment changing age of consent.
- Where defendant had lawfully engaged in consensual sexual activity with a minor prior to the amendment raising the age of consent, the amendment did not interfere with defendant's constitutional right of privacy so as to exempt defendant from its coverage of subsequent sexual activity with the minor. Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), cert. denied, 522 U.S. 1128, 118 S. Ct. 1079, 140 L. Ed. 2d 136 (1998).
Law existing at time of crime applies.
- Contrary to a defendant's claims, the defendant was properly convicted of aggravated child molestation pursuant to the law in effect at the time of the defendant's crimes as it has long been the law in Georgia that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of the crime's commission. Mangrum v. State, 285 Ga. 676, 681 S.E.2d 130 (2009).
Knowledge of victim's age not an element.
- When a defendant was charged with statutory rape and child molestation in violation of O.C.G.A. §§ 16-6-3 and16-6-4, the trial court properly excluded any evidence showing that defendant believed that the victim was over the age of consent; knowledge of the victim's age was not an element of either statute. Haywood v. State, 283 Ga. App. 568, 642 S.E.2d 203 (2007).
Statute not vague.
- Defendant's claim that O.C.G.A. § 16-6-4(c) was void for vagueness failed because a person of common intelligence would understand that an act of child molestation that results in the pregnancy of a 14 year old girl could, at the least, cause the victim to sustain physical injury in the event of a painful and traumatic childbirth. Daddario v. State, 307 Ga. 179, 835 S.E.2d 181 (2019).
O.C.G.A.
§ 16-6-4 does not set forth alternate methods. - O.C.G.A. § 16-6-4 does not set forth alternate methods of committing child molestation. Day v. State, 193 Ga. App. 179, 387 S.E.2d 409 (1989).
Although the defendant alleged that the state failed to prove that the defendant exposed the defendant's genitals to a child with the intent to arouse or satisfy both the defendant's and the child's sexual desires, there was no fatal variance between the indictment and the trial evidence in the defendant's trial for child molestation because the conjunctive form of the indictment, which charged that the defendant acted in order to arouse or satisfy both the defendant's and the child's sexual desires, did not mean that the state was not required to prove that the defendant intended to arouse both the defendant's and the child's sexual desires; rather, the state only had to prove that the offense was committed in one of the separate ways alleged, and the state's evidence was sufficient to do that where the evidence showed that the defendant touched the child's breast, and took the child to the defendant's "hideout" in the woods where the defendant touched the child's genitals and then exposed the defendant's genitals to the child. Hostetler v. State, 261 Ga. App. 237, 582 S.E.2d 197 (2003).
Constitutes forcible felony.
- Child molestation constitutes a forcible felony for the purpose of establishing the defense of justification pursuant to O.C.G.A. § 16-3-21(a). Brown v. State, 268 Ga. 154, 486 S.E.2d 178 (1997).
Proving statutory intent under O.C.G.A. § 16-6-4 does not require a showing of a "general plan." Branam v. State, 204 Ga. App. 205, 419 S.E.2d 86 (1992).
Unnecessary to find adult intent.
- In order to find juvenile defendant guilty of the delinquent act of attempted aggravated child molestation, the court must find defendant attempted aggravated child molestation with intent to satisfy defendant's own desires. Whether the juvenile defendant had the sexual intent or knowledge of an adult would be irrelevant. In re W.S.S., 266 Ga. 685, 470 S.E.2d 429 (1996).
Inference of intent.
- Although the defendant contended an absence of the requisite criminal intent, it could be inferred from defendant's act of openly engaging in sexual intercourse in the presence of children that defendant acted with the intent to arouse or satisfy defendant's sexual desires. Grimsley v. State, 233 Ga. App. 781, 505 S.E.2d 522 (1998).
Motion for a judgment of acquittal on charges of aggravated sexual battery, aggravated child molestation, and child molestation was properly denied as the defendant's testimony that the defendant blacked out during the incident did not demand a finding that the defendant lacked the requisite criminal intent; the victim testified that the defendant began rubbing the victim's legs, touched the victim's "private part" through the victim's clothing, pulled down the defendant's pants as well as the victim's pants, picked the victim up, and began rubbing the victim up and down against the defendant's "private part." Ward v. State, 274 Ga. App. 511, 618 S.E.2d 154 (2005).
Evidence was sufficient to support a defendant's conviction for child molestation in violation of O.C.G.A. § 16-6-4(a) and the trial court did not err in denying the defendant's motion for a directed verdict because the jury was entitled to infer from the defendant's act of masturbating in a child's presence that the defendant acted with the intent to arouse or satisfy the defendant's own sexual desires. Klausen v. State, 294 Ga. App. 463, 669 S.E.2d 460 (2008).
Defendant's conviction of child molestation was affirmed because the jury was entitled to infer from the direct and circumstantial evidence that the defendant acted with the intent to arouse or satisfy the defendant's own sexual desires. Parrott v. State, 318 Ga. App. 545, 736 S.E.2d 436 (2012).
Voluntary waiver of right to remain silent.
- Defendant's convictions were affirmed because the defendant was aware that the defendant was being questioned with regard to the victim's allegations of molestation; understood that the allegations were serious; was not under the influence of drugs or alcohol; and was advised of the defendant's Miranda rights, waived those rights, and signed a form confirming the waiver. Pendleton v. State, 317 Ga. App. 396, 731 S.E.2d 75 (2012).
Defendant cannot admit charges and be innocent as a matter of law.
- Defendant's general demurrer was properly denied when the indictment alleged that the defendant violated O.C.G.A. §§ 16-6-3 and16-6-4(c) over a period of time, some of which was after the victim turned 16, as the defendant could not admit the charges and still be innocent as a matter of law. Grizzard v. State, 258 Ga. App. 124, 572 S.E.2d 760 (2002).
Motion to withdraw Alford plea properly denied.
- Although defendant's motion to withdraw the defendant's Alford plea to two counts of child molestation was timely because it was filed during the term in which the trial court imposed its sentence, the trial court's judgment denying the motion was upheld because the record did not support defendant's claims that the defendant did not understand the nature of an Alford plea, that the defendant's plea was not entered voluntarily and intelligently, and that the defendant did not receive effective assistance of counsel. Whitesides v. State, 266 Ga. App. 181, 596 S.E.2d 706 (2004).
Motion to withdraw guilty plea properly denied.
- Trial court did not abuse the court's discretion in the denying the defendant's motion to withdraw the defendant's guilty plea to child molestation; rather than indicating that the defendant was impaired by medication, the defendant indicated that the medicine did not affect the defendant's ability to understand the proceedings. Brown v. State, 259 Ga. App. 576, 578 S.E.2d 188 (2003).
Trial court properly denied withdrawal of the defendant's guilty plea because the record sufficiently showed that: (1) the defendant entered a guilty plea to two counts of child molestation both knowingly and voluntarily, and in recognition of the rights being waived, absent any coercion or hope; and (2) the sentence was properly imposed, absent any proof that defense counsel was ineffective. Geyer v. State, 289 Ga. App. 492, 657 S.E.2d 878 (2008).
"Any immoral or indecent act."
- In O.C.G.A. § 16-6-4, the phrase "any immoral or indecent act" in conjunction with the requisite element of offense that the act be committed "with the intent to arouse or satisfy the sexual desires of either the child or the person" is sufficiently definite. Therefore, since the statute is definite and certain in its meaning, men of common intelligence would not differ as to application of the statute's provisions. McCord v. State, 248 Ga. 765, 285 S.E.2d 724 (1982).
When the defendant husband and wife openly engaged in sexual intercourse in front of their children, they converted their residence from a constitutionally protected zone of privacy into a public place where their consenting sexual activity was transformed from acceptable and protected marital conduct into an "immoral and indecent act" within the meaning of O.C.G.A. § 16-6-4. Grimsley v. State, 233 Ga. App. 781, 505 S.E.2d 522 (1998).
Defendant was properly convicted of child molestation under O.C.G.A. § 16-6-4(a); testimony indicated that defendant approached two young girls swimming in a lake and touched the girls and asked them personal questions while defendant was nude and had an erection, and the fact that the murky lake water obscured defendant's state of sexual arousal was irrelevant, as immoral or indecent acts for purposes of O.C.G.A. § 16-6-4(a) referred to acts generally viewed as morally indelicate or improper or offensive, and the testimony supported the conclusion beyond a reasonable doubt that defendant's actions were immoral or indecent. Further, the evidence was more than sufficient for the trier of fact to conclude that defendant touched the children with the intent to arouse his sexual desires. Wormley v. State, 255 Ga. App. 347, 565 S.E.2d 530 (2002).
"Act" may be merely verbal.
- Although it was never proved that the defendant looked up the child's shorts, the "act" required by O.C.G.A. § 16-6-4(a) may be merely verbal. Hicks v. State, 254 Ga. App. 814, 563 S.E.2d 897 (2002).
What constitutes an immoral or indecent act.
- Any act generally viewed as morally and sexually indelicate, improper, and offensive can constitute child molestation and whether an act is immoral or indecent is a jury question. Thomas v. State, 324 Ga. App. 26, 748 S.E.2d 509 (2013).
Alternate act allegedly committed by defendant that was not found by jury did not change sufficiency of conviction.
- As the indictment against the defendant placed the defendant on notice that the state was going to attempt to prove that the defendant committed child molestation in more than one manner, the jury's finding that the defendant committed molestation by showing the victim the defendant's penis was sufficient to support the conviction; the fact that there was an alternate act allegedly committed by the defendant that was not found by the jury did not change the sufficiency of the conviction. Hammontree v. State, 283 Ga. App. 736, 642 S.E.2d 412 (2007).
No penetration is required for child molestation to occur. Raymond v. State, 232 Ga. App. 228, 501 S.E.2d 568 (1998).
Penetration is not a required element of either child molestation or aggravated child molestation. Adams v. State, 299 Ga. App. 39, 681 S.E.2d 725 (2009), aff'd, 287 Ga. 513, 696 S.E.2d 676 (2010).
Plan to use child to gratify sexual desires is element in crime.
- General plan to use the child to gratify the defendant's lust or passions or sexual desires is an element in this crime. Staggers v. State, 120 Ga. App. 875, 172 S.E.2d 462 (1969).
Digital penetration sufficient.
- Evidence was sufficient to convict defendant of aggravated child molestation, O.C.G.A. § 16-6-4(c), where the victim's testimony, the victim's mother's testimony, and the doctor's testimony all established that defendant digitally penetrated the victim, causing physical injury. Gearin v. State, 255 Ga. App. 329, 565 S.E.2d 540 (2002).
When the defendant was acquitted of aggravated sexual assault based on penetrating the victim's vagina and was convicted of child molestation based on touching the victim's vagina, testimony from the victim and a detective that the victim claimed the defendant touched the victim's vagina with the defendant's finger was sufficient to support the conviction for child molestation under O.C.G.A. § 16-6-4(a), despite the acquittal on the other charge. Mitchell v. State, 262 Ga. App. 806, 586 S.E.2d 709 (2003).
Defendant's own admission that the defendant digitally penetrated a 15-year-old victim's vagina while masturbating was sufficient to sustain the defendant's convictions for aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), and child molestation, O.C.G.A. § 16-6-4(a). Driggers v. State, 291 Ga. App. 841, 662 S.E.2d 872 (2008).
Skin to skin contact not required for conviction.
- Evidence of skin-to-skin contact was not required to prove that a defendant touched a victim's vagina or made physical contact with the victim's genital area, as alleged in the indictment charging child molestation in violation of O.C.G.A. § 16-6-4 and sexual battery in violation of O.C.G.A. § 16-6-22.1(b). Evidence of contact with the victim's genital area through her panties was sufficient. Gunn v. State, 300 Ga. App. 229, 684 S.E.2d 380 (2009).
Extent of injury irrelevant.
- When the defendant was accused of child molestation under O.C.G.A. § 16-6-4, the trial court did not err under O.C.G.A. § 17-8-75 in admonishing the defense counsel not to suggest that the defendant's penetration of the victim and the resulting injury had been insignificant; the evidence was irrelevant, as O.C.G.A. § 16-6-4 did not distinguish between degrees of vaginal injury. Pickett v. State, 277 Ga. App. 316, 626 S.E.2d 508 (2006).
Presence of child as witness.
- Defendant need not have intended to actually use the child's body in some physical capacity in order to commit an act of molestation; it is sufficient if a person utilizes or capitalizes on a child's mere presence as a witness to the person's intentional immoral or indecent act, provided that the act is accomplished with the intent to arouse or satisfy the sexual desires of either the child or the person. Grimsley v. State, 233 Ga. App. 781, 505 S.E.2d 522 (1998).
Whether victim was clothed or unclothed is not a factor in determining whether an act is "immoral or indecent" so as to prove the crime of child molestation. Davidson v. State, 183 Ga. App. 557, 359 S.E.2d 372 (1987).
Touching beneath clothing not required.
- Conviction for child molestation does not require a showing that a victim was touched beneath the victim's clothing. Walsh v. State, 236 Ga. App. 558, 512 S.E.2d 408 (1999).
Victim's statement that the victim felt defendant's privates against her own privates, even through clothing, was sufficient proof that he rubbed his penis against the child's vaginal area with the intent to arouse his sexual desires, as alleged in the indictment. Knight v. State, 239 Ga. App. 710, 521 S.E.2d 851 (1999).
Child molestation conviction was supported by sufficient evidence which showed that the defendant touched the victim's underwear but not her genitalia because there was no requirement that the state present testimony that precisely tracked the language found in the indictment, and a conviction for child molestation did not require a showing that the victim was touched beneath her clothing. Dew v. State, 292 Ga. App. 631, 665 S.E.2d 715 (2008).
Victim too young to consent to sexual acts.
- Defendant's claim that the 15-year-old victim had consented to the defendant's sexual contact with the victim failed because a child of that age could not consent to acts that constituted child molestation. Driggers v. State, 291 Ga. App. 841, 662 S.E.2d 872 (2008).
Consent irrelevant.
- Considerations of "consent" and "force" and "against her will" are irrelevant in a child molestation case. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982); Hines v. State, 173 Ga. App. 657, 327 S.E.2d 786 (1985).
When the 14-year-old victim allegedly consented to having sex with the defendant, the sexual molestation conviction under O.C.G.A. § 16-6-4(a) was supported by sufficient evidence; under O.C.G.A. § 16-2-1, consent by the victim was irrelevant due to the inability of the victim to legally consent to intercourse, and it was for the jury to determine, in accordance with the testimony of at least a single witness pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), whether the defendant's conduct was immoral or indecent under O.C.G.A. § 16-6-4(a). Slack v. State, 265 Ga. App. 306, 593 S.E.2d 664 (2004).
No proof of force required.
- Conviction for aggravated child molestation does not require proof of force, since such a conviction requires only proof of child molestation that either physically injures a child or involves an act of sodomy, and neither child molestation nor sodomy require proof of force. House v. State, 236 Ga. App. 405, 512 S.E.2d 287 (1999).
"Force and arms" was not an element of the offenses of statutory rape, O.C.G.A. § 16-6-3, child molestation, O.C.G.A. § 16-6-4, or furnishing alcohol to a minor, O.C.G.A. § 3-3-23, and since an indictment was couched in the words of the statutes and correctly informed defendant of offenses charged, the indictment's allegation of use of force was mere surplusage and was properly disregarded. Colon v. State, 275 Ga. App. 73, 619 S.E.2d 773 (2005).
Crime of child molestation requires victim and accused to be in presence of each other.
- Victim and accused must be together in order for the crime of child molestation to be committed. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. 2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).
Defendant, who was underneath the defendant's house masturbating as the defendant watched the defendant's 10-year-old daughter's friend shower through a small hole in the bathroom floor, could not be convicted of child molestation because the defendant was not "in the presence of" the child as required under O.C.G.A. § 16-6-4(a)(1). Prophitt v. State, 336 Ga. App. 262, 784 S.E.2d 103 (2016).
Evidence of victim's sexual activity admissible.
- Given that the defendant was not charged with rape, evidence of the victim's sexual activity, and the fact that the victim had a love interest, with whom the victim allegedly had sexual intercourse during the time of the alleged sexual abuse, should not have been excluded under either the 2004 or 2005 version of the rape shield statute, as: (1) said evidence acted as a possible explanation for the victim's physical trauma, placing the victim's credibility and the defendant's guilt into question; (2) the jury's split verdict supported the defendant's argument that even without the excluded testimony, the state's case was far less than overwhelming; and (3) the appeals court could not determine what role the excluded evidence would have played in the jury's deliberations; hence, a new trial as to the charges of child molestation and incest was ordered. Gresham v. State, 281 Ga. App. 116, 635 S.E.2d 316 (2006).
Defendant's convictions for child molestation in violation of O.C.G.A. § 16-6-4(a) and sexual battery in violation of O.C.G.A. § 16-6-22.1(b) were vacated because the trial court erred by applying former O.C.G.A. § 24-2-3(a) (see now O.C.G.A. § 24-4-412) to the case and striking the testimony regarding the victim's previous alleged sexual conduct with the victim's brother based on the court's conclusion that the rape shield statute prohibited the defendant from presenting evidence regarding the victim's prior sexual history, and the error in excluding the evidence of the victim's prior sexual history could have contributed to the jury's verdict since the only direct evidence of the defendant's guilt was the victim's testimony that the defendant sexually abused the victim; former § 24-2-3, as the statute was currently written, did not apply to prosecutions for child molestation or sexual battery. Robinson v. State, 308 Ga. App. 562, 708 S.E.2d 303 (2011).
Trial court abused the court's discretion in excluding evidence that a child molestation victim had been having sex with her boyfriend because the evidence would provide an alternate explanation as to why the victim's hymen had been penetrated, and absent the evidence of the sexual relationship with the boyfriend, the obvious inference was that the defendant had caused the penetration injuries; the state decided to present evidence of the penetration damage to the victim's hymen, and it was the state's affirmative act of "opening the door" to the area that required the trial court to allow the defendant to present evidence that someone other than the defendant caused the injury. Tidwell v. State, 306 Ga. App. 307, 701 S.E.2d 920 (2010), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019).
County child abuse records should be provided.
- Trial court erred by failing to provide defendant with the county child abuse documents the defendant requested during the defendant's trial for child molestation, but the defendant was not denied due process since defendant failed to show that the trial court withheld any material, exculpatory information. Dodd v. State, 293 Ga. App. 816, 668 S.E.2d 311 (2008).
No reversible error in admitting character evidence via defendant's drug use.
- Defendant's convictions for various sexual offenses against a child were upheld on appeal because no reversible error occurred by the trial court allowing evidence of defendant's character as relevant via a police detective testifying that when the detective arrested defendant, the detective pulled from the defendant's pocket a suspected methamphetamine glass pipe containing methamphetamine residue; the reviewing court found that the challenged evidence was cumulative since the victim, the victim's mother, and another witness all testified to the defendant's drug usage. Quarles v. State, 285 Ga. App. 758, 647 S.E.2d 415 (2007).
Testimony regarding defendant's character trait of moral behavior and trustworthiness.
- In a child molestation case, the trial court did not restrict the defendant's character witnesses' ability to testify as to the defendant's character trait of moral behavior and trustworthiness with children as three witnesses testified as to that character trait and any additional testimony regarding the defendant's morality and trustworthiness with children would have been cumulative. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014).
Additional allegation admissible despite late disclosure.
- In a child molestation case, because the state immediately notified defense counsel approximately five days before trial of the additional allegation that the defendant had the victim, the defendant's daughter, perform oral sex on the defendant, and defense counsel had an opportunity to investigate the issue and/or request a continuance prior to trial, the defendant's challenge to the admissibility of the additional allegation based on the untimeliness of the state's disclosure lacked merit. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014).
Venue.
- Evidence that an investigator went to the locale described to her by defendant's daughters and concluded it was in Gwinett County was sufficient to prove venue, where no challenge to venue was raised at trial. Alexander v. State, 199 Ga. App. 228, 404 S.E.2d 616 (1991).
After the defendant was convicted of felony child molestation in violation of O.C.G.A. § 16-6-4 and misdemeanor sexual battery in violation of O.C.G.A. § 16-6-22.1 and defendant appealed, contending that venue was not sufficiently established, the Court of Appeals erred in relying on statements by defendant's counsel that were contained in defendant's motion for reconsideration of bond in order to find that venue was sufficiently established. In reviewing a claim that venue was not sufficiently proved, the appellate court was required to rely only on evidence in the record that had been presented to the jury as venue was an element to be proved by the state, and where there was no evidence before the jury as to where defendant's business was actually located, the crime of felony child molestation, which occurred in defendant's business, was not sufficiently proved. Thompson v. State, 277 Ga. 102, 586 S.E.2d 231 (2003).
Testimony of two child molestation victims indicating that the defendant lived with the victims in Gwinnett County at the time the sexual abuse occurred was sufficient to establish that Gwinnett County was the proper venue. Although the victims were quite young when the abuse occurred, the credibility of the victims was for the jury to determine. Ortiz v. State, 295 Ga. App. 546, 672 S.E.2d 507 (2009), cert. denied, No. S09C0803, 2009 Ga. LEXIS 269 (Ga. 2009).
Trial court did not err in denying the defendant's motion for directed verdict because the testimony, taken as a whole, was sufficient evidence from which the jury could conclude beyond a reasonable doubt that the child molestation was committed in Fayette County; during trial and the victim's forensic interview, the victim described that the molestation incident occurred during a visit to the victim's aunt's residence, which was located in Fayette County, Georgia, and two detectives testified that the referenced visit and molestation incident took place at a residence in Fayette County. Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011).
Evidence was sufficient to prove venue was proper in Coweta County as the child molestation occurred at the defendant's house; and it was for the jury, as factfinder, to determine whether to credit the victim's testimony that the victim thought the defendant's house was in Coweta County. Boyd v. State, 351 Ga. App. 469, 829 S.E.2d 163 (2019).
Liability insurance coverage denied.
- When a child who had been sexually molested brought an action against the convicted molester for past and future physical and mental pain and suffering, the defendant's homeowner's insurance carrier had no obligation to defend or provide coverage because the policy excluded coverage for bodily injury which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by the insured person. Allstate Ins. Co. v. Jarvis, 195 Ga. App. 335, 393 S.E.2d 489 (1990).
Venue issue meant evidence insufficient for conviction.
- Evidence was insufficient as to count four of the Coweta County indictment alleging child molestation because the victim of that offense testified without equivocation that the incident occurred in Carroll County; and the defendant waived venue only as to the crimes indicted in Carroll County, not the Coweta County offenses. Cavender v. State, 329 Ga. App. 845, 766 S.E.2d 196 (2014).
Juror not required to be excused for cause.
- Because a juror, who was both the daughter of a crime victim and a victim, stated that the juror could ultimately be fair and impartial, and would try to do so, the juror did not hold a fixed and definite opinion of the defendant's guilt or innocence requiring excusal. Walker v. State, 277 Ga. App. 485, 627 S.E.2d 54 (2006).
In response to a question from the trial court, a juror stated that the juror could decide the case based on the evidence presented. Given this response, the trial court did not abuse the court's discretion in refusing to strike the juror for cause. Huskins v. State, 294 Ga. App. 653, 669 S.E.2d 680 (2008).
Seven year limitations period.
- Trial court's denial of defendant's motion for a directed verdict of acquittal, pursuant to O.C.G.A. § 17-9-1, on two counts of child molestation in violation of O.C.G.A. § 16-6-4, was proper because the evidence of defendant's inappropriate sexual abuse of the victim sufficiently placed the dates of the charged offenses within the seven-year limitations period of O.C.G.A. §§ 17-3-1(c) and17-3-2.1(a)(5). Allen v. State, 275 Ga. App. 826, 622 S.E.2d 54 (2005).
Defendant indicted within statute of limitations period.
- Trial court erred in dismissing the counts of the indictment charging the defendant with aggravated child molestation, child molestation, and statutory rape with a child under the age of 16 because the indictment sufficiently invoked the tolling provision of O.C.G.A. § 17-3-2.1; pursuant to O.C.G.A. § 17-3-1(c), the state had seven years to indict the defendant, and the defendant was indicted within seven years. State v. Godfrey, 309 Ga. App. 234, 709 S.E.2d 572 (2011).
Untimely motion to suppress.
- In a prosecution on four counts of child molestation, the defendant's failure to file a timely motion to suppress waived the right to claim that the seized items were inadmissible as fruits of the poisonous tree. Walker v. State, 277 Ga. App. 485, 627 S.E.2d 54 (2006).
Motions to suppress.
- Trial court erroneously suppressed the statements given by the defendant to law enforcement, because, given the totality of the circumstances apparent from the record, the defendant: (1) spoke clearly; (2) did not appear to be under the influence of alcohol or drugs; (3) appeared to understand what was read; (4) was not threatened or coerced in any way; (5) appeared very calm; (6) was not promised anything by police in exchange for defendant's cooperation; (7) did not appear to have any mental issues; (8) had only been detained for approximately 20 minutes before defendant was Mirandized; and (9) asked the investigator to come back to speak with defendant after a brief interruption in the interview; the mere fact that there was no written Miranda waiver or electronic recording of the same did not render said waiver involuntary. State v. Hardy, 281 Ga. App. 365, 636 S.E.2d 36 (2006).
In a prosecution for two counts of child molestation, the trial court did not err in denying the defendant's motion to suppress a written statement given to police during the course of a pretrial interview, despite an argument that at the time the statement was given, the defendant invoked a right to counsel, as a defense objection to the admission of the same on this ground came after the statement was already admitted, and was thus untimely. Copeland v. State, 281 Ga. App. 656, 637 S.E.2d 90 (2006).
Motion to dismiss statutory rape and child molestation charges on jeopardy grounds properly denied.
- Trial court properly denied the defendant's motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury's not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008).
Ineffective assistance of counsel claim did not warrant new trial.
- In a prosecution against the defendant under O.C.G.A. § 16-6-4, because the defendant failed to show that trial counsel was ineffective in failing to present an alibi witness, and because the defendant failed to offer evidence that a medical examiner or witnesses from the Department of Family and Child Services would have been favorable to a defense, the defendant's ineffective assistance of counsel claims lacked merit. Herrington v. State, 285 Ga. App. 4, 645 S.E.2d 29, cert. denied, No. S07C1285, 2007 Ga. LEXIS 548 (Ga. 2007).
On appeal from convictions on two counts of child molestation and one count of aggravated sexual battery, the trial court properly found that the defendant was not entitled to a new trial based on allegations of the ineffective assistance of defense counsel because: (1) the manner in which counsel handled alleged exculpatory evidence pertaining to a similar transaction witness and the cross-examination of that witness was part of counsel's reasonable trial strategy; (2) the defendant's reciprocal discovery or due process rights were not violated; and (3) the existence of the information sought was known to the defendant, which could have been obtained with due diligence. Ellis v. State, 289 Ga. App. 452, 657 S.E.2d 562 (2008).
Ineffective assistance of counsel warrants new trial.
- Defense counsel's failure to present testimony of concern in the victim's many false allegations of child molestation and failure to present expert medical or psychological testimony regarding alleged molestation victim was ineffective assistance of counsel. Goldstein v. State, 283 Ga. App. 1, 640 S.E.2d 599 (2006), cert. denied, No. S07C0623, 2007 Ga. LEXIS 338 (Ga. 2007).
Trial court did not abuse the court's discretion in granting the defendant a new trial based on the ineffective assistance of trial counsel, as: (1) counsel's pretrial investigation was deficient; (2) counsel made no effort to investigate or to obtain the criminal records of the state's similar transaction witness before trial, and did not ask for more time or a continuance upon learning that the defendant did not have the records; (3) the defendant pointed out that the jury had doubts about the victim's testimony based on their verdict of guilt to sexual battery, as a lesser-included offense of child molestation, the crime the defendant was charged with committing; (4) there was evidence that the victim had reason to lie; (5) the charged incident was not reported until after the defendant's wife hired a divorce lawyer, who then arranged the first interview between the victim and investigators; and (6) given that the evidence against the defendant was not overwhelming, this impeachment evidence was particularly crucial. State v. Lamb, 287 Ga. App. 389, 651 S.E.2d 504 (2007), overruled on other grounds, O'Neal v. State, 285 Ga. 361, 677 S.E.2d 90 (2009).
Defense counsel not ineffective.
- In a child molestation prosecution, defense counsel's questioning of a victim about the entire circumstances of the victim's outcry, including an allegation that the defendant had used drugs, was part of a valid trial strategy. That the strategy was unsuccessful in securing an acquittal on all charges did not show that counsel's actions were objectively unreasonable. Farris v. State, 293 Ga. App. 674, 667 S.E.2d 676 (2008).
During the defendant's trial for child molestation, defense counsel was not ineffective for failing to request charges on sexual battery and the defense of accident or on mistake of fact because under the evidence, charges on those subjects were not authorized; counsel testified that counsel did not seek a charge on sexual battery because the defendant denied touching the victim, and as all of the charges the defendant contended should have been requested would require that the defendant admit that the defendant touched the victim as alleged, the charges would have been inconsistent with the defense's theory that there was no touching at all and were inconsistent with the defendant's adamant denial that the defendant touched the victim as the victim contended. Kay v. State, 306 Ga. App. 666, 703 S.E.2d 108 (2010).
As to the defendant's convictions for child molestation, sexual battery, and enticing a child for indecent purposes, the defendant failed to establish that trial counsel's performance prejudiced the defense for failing to investigate the victim receiving prior parental discipline as trial counsel got the victim to admit to being afraid of getting into trouble for coming home late on the night of the incident. Carstaffin v. State, 323 Ga. App. 354, 743 S.E.2d 605 (2013).
Retrial did not violate due process.
- Retrial on child molestation charge did not violate due process given the legislature's clear intention to prosecute sexual intercourse only as statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008).
Double Jeopardy did not bar retrial.
- Double Jeopardy Clause, Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, did not bar retrial of a defendant as the evidence supported the defendant's conviction under O.C.G.A. § 16-6-4(a) when: (1) the victim told the victim's sister that the defendant had gotten on top of the victim; (2) the sister told the mother, and the victim laid on the bed and moved up and down to show the mother what the defendant did to the victim; (3) the mother told an acquaintance, who reported the incident to an officer; (4) the officer reported the incident to the officer's supervisor, and also spoke with the mother; and (5) the victim told the forensic investigator that the defendant took his clothes off, got on top of the victim as the victim was fully clothed, moved his body up and down, and rubbed his penis against the victim's buttocks. Wadley v. State, 317 Ga. App. 333, 730 S.E.2d 536 (2012).
Severance of offenses.
- Defendant's motion to sever the failure to register as a sex offender counts under former O.C.G.A. § 42-1-12 from the remaining aggravated sodomy and child molestation counts was properly denied as: (1) the defendant was not entitled to severance as a matter of right since the charges involved a series of acts which were connected together; (2) the case was not so complex as to impair the jury's ability to distinguish the evidence and to apply the law intelligently to the counts as joined; and (3) the failure to sever the failure to register as a sex offender counts was proper, even applying an analogy to cases involving possession of a firearm by a convicted felon, as the failure to report charges were legally material to the crimes against two children because the failure constituted evasive conduct that was circumstantial evidence of guilt and evidence of the conduct underlying the defendant's conviction of a sex offense in North Carolina was admissible as a similar transaction. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).
Trial court did not abuse the court's discretion in denying the defendant's motion to sever the offenses of child molestation, O.C.G.A. § 16-6-4(a)(1), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), tattooing the body of a minor, O.C.G.A. § 16-5-71(a), and the defendant's motion for new trial on that basis because all of the sex offenses were similar and showed the defendant's common motive, plan, scheme, or bent of mind to satisfy the defendant's sexual desires, and the circumstances surrounding the tattooing offenses would have been admissible at the trial of the sex offenses to show the defendant's lustful disposition and bent of mind; the case was not so complex as to impair the jury's ability to distinguish the evidence and apply the law intelligently as to each offense. Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011).
Trial court did not abuse the court's discretion in denying the defendant's motion to sever the offenses involving two child molestation victims because although the charged offenses involved different victims and occurred on different dates, the actions showed the defendant's common motive, lustful disposition, and bent of mind to satisfy the defendant's sexual desires; the defendant gained access to the second victim through a familial relationship with the first victim, and the molestation of the first victim came to light during the investigation of the molestation of the second victim. Stepho v. State, 312 Ga. App. 495, 718 S.E.2d 852 (2011).
Severance of four counts of child molestation and enticing a child, O.C.G.A. §§ 16-6-4(a)(1) and16-6-5, was not required because the evidence regarding the events was not confusing or complicated, and each of the incidents would have been admissible as a similar crime in a trial of the other incidents. Heck v. State, 313 Ga. App. 571, 722 S.E.2d 166 (2012).
Sufficiency of the evidence.
- Evidence was sufficient to find the defendant guilty of statutory rape and child molestation under O.C.G.A. §§ 16-6-3(a) and16-6-4(a)(1) because the minor victim's testimony was corroborated by the medical evidence, the defendant's opportunity to commit the alleged crimes, the defendant's statements during a phone call, and the defendant's admission to one incident of sexual intercourse. Sanchez v. State, 316 Ga. App. 40, 728 S.E.2d 718 (2012).
Defendant's claim that the state failed to prove the offense because the victim was asleep during the entire incident lacked merit, because the child's actual sight of the sexual organs was not required for a child molestation conviction. Clemens v. State, 318 Ga. App. 16, 733 S.E.2d 67 (2012).
Cited in Butler v. State, 132 Ga. App. 750, 209 S.E.2d 28 (1974); Disharoon v. State, 288 Ga. App. 1, 652 S.E.2d 902 (2007); Weaver v. State, 234 Ga. 890, 218 S.E.2d 750 (1975); Neel v. State, 140 Ga. App. 691, 231 S.E.2d 394 (1976); Cole v. State, 162 Ga. App. 353, 291 S.E.2d 427 (1982); Massengale v. State, 164 Ga. App. 57, 296 S.E.2d 371 (1982); Jackson v. State, 170 Ga. App. 172, 316 S.E.2d 816 (1984); Chapman v. State, 170 Ga. App. 779, 318 S.E.2d 213 (1984); Wilcher v. State, 171 Ga. App. 10, 318 S.E.2d 760 (1984); Winter v. State, 171 Ga. App. 511, 320 S.E.2d 233 (1984); American Booksellers Ass'n v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984); Jordan v. State, 172 Ga. App. 496, 323 S.E.2d 657 (1984); Howell v. State, 172 Ga. App. 805, 324 S.E.2d 754 (1984); Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985); McLamb v. State, 176 Ga. App. 727, 337 S.E.2d 360 (1985); Seymour v. State, 177 Ga. App. 598, 340 S.E.2d 244 (1986); Hunt v. State, 180 Ga. App. 103, 348 S.E.2d 467 (1986); Cooper v. State, 180 Ga. App. 37, 348 S.E.2d 486 (1986); Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986); Cooper v. State, 256 Ga. 631, 352 S.E.2d 382 (1987); Banther v. State, 182 Ga. App. 333, 355 S.E.2d 709 (1987); Clark v. State, 184 Ga. App. 417, 361 S.E.2d 549 (1987); Thompson v. State, 187 Ga. App. 563, 370 S.E.2d 819 (1988); Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368, 373 S.E.2d 23 (1988); Harris v. State, 189 Ga. App. 49, 375 S.E.2d 122 (1988); Daniel v. State, 194 Ga. App. 495, 391 S.E.2d 128 (1990); Hunter v. State, 194 Ga. App. 711, 391 S.E.2d 695 (1990); Rayburn v. State, 194 Ga. App. 676, 391 S.E.2d 780 (1990); Franklin v. State, 195 Ga. App. 696, 394 S.E.2d 621 (1990); Rodgers v. State, 261 Ga. 33, 401 S.E.2d 735 (1991); Black v. State, 199 Ga. App. 819, 406 S.E.2d 258 (1991); Green v. State, 206 Ga. App. 539, 426 S.E.2d 65 (1992); Burke v. State, 208 Ga. App. 446, 430 S.E.2d 816 (1993); Cooper v. State, 212 Ga. App. 34, 441 S.E.2d 448 (1994); Harper v. State, 213 Ga. App. 505, 445 S.E.2d 548 (1994); Deal v. State, 241 Ga. App. 879, 528 S.E.2d 289 (2000); Couch v. State, 248 Ga. App. 238, 545 S.E.2d 685 (2001); Roland v. Meadows, 273 Ga. 857, 548 S.E.2d 289 (2001); McCrickard v. State, 249 Ga. App. 715, 549 S.E.2d 505 (2001); Craft v. State, 252 Ga. App. 834, 558 S.E.2d 18 (2001); Moreno v. State, 255 Ga. App. 88, 564 S.E.2d 505 (2002); State v. Ware, 258 Ga. App. 564, 574 S.E.2d 632 (2002); Hunter v. State, 263 Ga. App. 747, 589 S.E.2d 306 (2003); Tompkins v. State, 265 Ga. App. 760, 595 S.E.2d 599 (2004); Grovenstein v. State, 282 Ga. App. 109, 637 S.E.2d 821 (2006); Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006); Wallace v. State, 288 Ga. App. 480, 654 S.E.2d 442 (2007); Payne v. State, 290 Ga. App. 589, 660 S.E.2d 405 (2008), overruled on other grounds by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); Rouse v. State, 290 Ga. App. 740, 660 S.E.2d 476 (2008); Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740 (2008); Finnan v. State, 291 Ga. App. 486, 662 S.E.2d 269 (2008); Miller v. State, 291 Ga. App. 478, 662 S.E.2d 261 (2008); In the Interest of A.S., 293 Ga. App. 710, 667 S.E.2d 701 (2008); Cash v. State, 294 Ga. App. 741, 669 S.E.2d 731 (2008); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008); Dyer v. State, 295 Ga. App. 495, 672 S.E.2d 462 (2009); Golden v. State, 299 Ga. App. 407, 683 S.E.2d 618 (2009), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019); Lee v. State, 300 Ga. App. 214, 684 S.E.2d 348 (2009); Marshall v. Browning, 310 Ga. App. 64, 712 S.E.2d 71 (2011); Bolton v. State, 310 Ga. App. 801, 714 S.E.2d 377 (2011); Kaylor v. State, 312 Ga. App. 633, 719 S.E.2d 530 (2011); Brown v. Parody, 294 Ga. 240, 751 S.E.2d 793 (2013); Calhoun v. State, 327 Ga. App. 683, 761 S.E.2d 91 (2014); Henderson v. State, 333 Ga. App. 759, 777 S.E.2d 48 (2015); Spikes v. State, 353 Ga. App. 454, 838 S.E.2d 121 (2020); State v. Williams, 308 Ga. 228, 838 S.E.2d 764 (2020).
Indictment
Indictment sufficient.
- Trial court properly denied the defendant's motion for arrest of judgment because the indictment charged attempted aggravated child molestation based on the defendant's act of asking the victim if the victim performed a certain sexual action and referred to the statutory language for attempt and aggravated child abuse as well as specifically alleged that the victim was under the age of sixteen, thus, the indictment sufficiently placed the defendant on notice of the charges. Ashmore v. State, 323 Ga. App. 329, 746 S.E.2d 927 (2013).
Indictment failing to allege specific intent sufficient.
- Indictment which charged that defendant solicited a child to engage in certain sexual conduct but failed to allege specific intent was sufficient to charge child molestation. Bowman v. State, 227 Ga. App. 598, 490 S.E.2d 163 (1997).
Indictment that attempted to charge aggravated child molestation, but failed to do so, was sufficient because it described the offense of child molestation, the crime for which defendant was convicted and sentenced. Jones v. State, 240 Ga. App. 484, 523 S.E.2d 73 (1999).
Indictment alleging year range sufficient.
- Indictment for child molestation was not insufficient because the indictment did not specify the dates on which the charged offenses occurred and instead alleged that the molestation occurred between August 1, 1991, and June 25, 2002. The victim could recall only that the abuse began when the victim was about nine and ended when the victim was thirteen; given the defendant's concessions that the defendant lived with the victim for much of the time between 1995 and 1999 and that the victim visited the defendant's house regularly thereafter, the defendant could not show that the defendant was prejudiced in the preparation of the defendant's defense by the indictment's range of dates concerning the indictment's three counts. Mullis v. State, 292 Ga. App. 218, 664 S.E.2d 271 (2008).
Indictment sufficient despite absence of specific date.
- Trial court did not err in denying the defendant's plea in abatement because the state was unable either to identify a specific date on which an offense of child molestation occurred or to narrow the range of possible dates as the evidence produced during the hearing only concerned the date of the defendant's arrival in the victim's neighborhood, that the molestation began thereafter, and the date upon which the victim disclosed the molestation. Watkins v. State, 336 Ga. App. 145, 784 S.E.2d 11 (2016).
Indictment was not flawed for charging several ways of committing the crime.
- Child molestation defendant's behavior in the indictments occurred during the time alleged in the indictments, and the evidence, including testimony from the victims, was sufficient to show that the defendant committed child molestation in at least one of the ways alleged in the indictments. Therefore, even though the indictment used the conjunctive rather than the disjunctive form, the indictment was sufficient. Cain v. State, 310 Ga. App. 442, 714 S.E.2d 65 (2011).
Fatal variance in indictment and conviction.
- While the victim's testimony that the defendant engaged the victim in sexual activity and inserted the defendant's penis into the victim's anus was sufficient to prove aggravated child molestation, the defendant was entitled to reversal of that conviction because there was a reasonable possibility that the jury convicted the defendant of that crime in a manner not alleged in the indictment. The indictment alleged that the defendant committed the crime by engaging in sodomy, the evidence at trial included both evidence of sodomy and evidence that the victim was physically injured as a result of sexual intercourse with the defendant, which could also support such a conviction, and the jury was not instructed to limit the jury's consideration to the commission of the crime as alleged in the indictment. Smith v. State, 319 Ga. App. 590, 737 S.E.2d 700 (2013).
Indictment sufficient with regard to Internet sting operation allegations.
- With regard to an indictment charging the defendant with computer pornography, attempted aggravated child molestation, and attempted child molestation arising from an Internet sting operation, the appellate court erred by finding that a second indictment was insufficient to withstand a special demurrer because the indictment identified the victim by the only name which the defendant knew the intended victim by and informed the defendant that the intended victim was not an actual child. State v. Grube, 293 Ga. 257, 744 S.E.2d 1 (2013).
Indictment defective.
- Trial court erred in not granting special demurrer where indictment only identified the victim with the victim's initials. Sellers v. State, 263 Ga. App. 144, 587 S.E.2d 276 (2003).
No error by defense counsel in failing to protest indictment.
- Any attempt by trial counsel to file a demurrer to the count of an indictment charging the defendant with child molestation, O.C.G.A. § 16-6-4(a)(1), would have been futile because nothing in the child molestation statute specifically prohibited the state from prosecuting the defendant on the ground that the defendant engaged in sexual intercourse with the victim; while sexual intercourse is not an element of child molestation, an adult's act of sexual intercourse with a child falls within the parameters of the child molestation statute. Burke v. State, 316 Ga. App. 386, 729 S.E.2d 531 (2012).
No fatal variance.
- Evidence supported a defendant's conviction for child molestation as there was not a fatal variance between the indictment and the evidence presented at trial since there was evidence that the defendant molested the victim when the defendant's teenaged child baby-sat the victim in June 2004, even though there was also evidence that the defendant's teenaged child only baby-sat for the victim once, in 2002. Tadic v. State, 281 Ga. App. 58, 635 S.E.2d 356 (2006).
Defendant argued that a child molestation indictment charged the defendant with touching a child's genital area with the defendant's sexual organ, but the evidence showed that the touching was with the defendant's hand. The difference between the defendant's touching the child's private area with the defendant's hand as opposed to the defendant's private part was not a fatal variance as it would not have misled the defendant in defending against the molestation charge. Flores v. State, 298 Ga. App. 574, 680 S.E.2d 609 (2009), cert. denied, No. S09C1796, 2010 Ga. LEXIS 27 (Ga. 2010).
Testimony by the defendant's child that the defendant put the defendant's sex organ "in my face" in a specific month and year authorized the jury to find that the defendant committed child molestation in the required time frame. Therefore, there was no fatal variance between the allegations of the indictment and the proof at trial. Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009).
There was no fatal variance between an indictment charging the defendant with child molestation and the proof at trial because although the evidence differed somewhat from the allegation in the indictment, there was no material difference; the law does not require a showing that the victim was touched beneath his or her clothing, and the issue of whether the touching was sexual in nature is for the jury to decide. Kay v. State, 306 Ga. App. 666, 703 S.E.2d 108 (2010).
Defendant was properly convicted of aggravated child molestation in violation of O.C.G.A. § 16-6-4(c) because there was no fatal variance between the allegations and the proof at trial; the indictment was sufficient to put the defendant on notice that the defendant could be convicted for an act of oral sodomy involving the victim's mouth and the defendant's sex organ; the allegation that the defendant did perform an immoral and indecent act of sodomy to a child did not necessarily require that the act involve the defendant's mouth and the victim's sexual organ. Weeks v. State, 316 Ga. App. 448, 729 S.E.2d 570 (2012).
Claim that there was a fatal variance between the aggravated child molestation allegations in the indictment and the evidence presented at trial lacked merit because the indictment sufficiently apprised the defendant of the charges, did not mislead the defendant as to the criminal action with which the defendant was charged, and the victim's reference to the victim's "lower private area" was sufficient to allow the jury to infer that the victim was referring to the victim's vagina, the body part which the indictment alleged that the defendant touched. Hernandez v. State, 319 Ga. App. 876, 738 S.E.2d 701 (2013).
There was no variance between the state's proof and the act alleged in the indictment despite the fact that the victim testified that the defendant touched her breasts and thighs while the indictment alleged that the defendant placed his hand on the victim's "female sex organ," as the victim also testified the defendant cleaned her vaginal area with a towel and a forensic interviewer testified that the victim's initial allegation was that the defendant touched her vaginal area. Stephens v. State, 323 Ga. App. 699, 747 S.E.2d 711 (2013).
Testimony from the victim's mother that the defendant hurriedly put the defendant's genitals back in the defendant's pants after the mother flung the door open to the victim's room and that the vaginal area of the victim's underwear was indented as if someone had touched it, and the victim's testimony that the defendant touched the victim's "tootie," the victim's word for vagina, supported the defendant's convictions for child molestation and aggravated child molestation. Sowell v. State, 327 Ga. App. 532, 759 S.E.2d 602 (2014).
Application
No corroboration is required for a conviction of child molestation under O.C.G.A. § 16-6-4. Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980).
Corroboration is not required to warrant a conviction for the offense of incest, sodomy, and child molestation, and trial court's failure to charge the jury that corroboration was required was not error. Scales v. State, 171 Ga. App. 924, 321 S.E.2d 764 (1984); Padgett v. State, 175 Ga. App. 818, 334 S.E.2d 883 (1985), aff'd, 258 Ga. 662, 374 S.E.2d 532 (1988).
There is no requirement that the testimony of the victim of child molestation be corroborated. Adams v. State, 186 Ga. App. 599, 367 S.E.2d 871 (1988).
Corroboration is not required for a conviction of child molestation. Weeks v. State, 187 Ga. App. 307, 370 S.E.2d 344, aff'd, 258 Ga. 662, 374 S.E.2d 532 (1988).
O.C.G.A. § 16-6-4 does not require corroboration of a child molestation victim's testimony. Burrage v. State, 234 Ga. App. 814, 508 S.E.2d 190 (1998).
Child molestation statute does not require corroborating evidence for a conviction. Chastain v. State, 236 Ga. App. 542, 512 S.E.2d 665 (1999).
Trial court did not err by denying the defendant's motion for a directed verdict of acquittal on a child molestation charge, despite a claim that no physical evidence of other support for the victim's claims was presented, as: (1) Georgia law did not require corroboration of a child molestation victim's testimony; and (2) the victim's testimony was sufficient to support the defendant's conviction. Keith v. State, 279 Ga. App. 819, 632 S.E.2d 669 (2006).
Child molestation and aggravated child molestation convictions were upheld on appeal, as a videotaped statement from the victim of said crimes accusing the defendant of requiring the victim to place the defendant's penis in the victim's mouth was corroborated by another witness; hence, the defendant was not denied due process and the child hearsay statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) did not require corroboration of child hearsay. Simpson v. State, 282 Ga. App. 456, 638 S.E.2d 900 (2006).
Rape, incest, child molestation, aggravated child molestation, and aggravated sodomy convictions were all upheld on appeal, given that the elements of child molestation and aggravated child molestation, including venue, were supported by the female victim's testimony. Forbes v. State, 284 Ga. App. 520, 644 S.E.2d 345 (2007).
While a doctor's examination of a 13-year-old victim two days after the defendant's alleged molestation of the victim found no evidence of vaginal trauma and no semen was found in the victim's vagina, on the victim's skin or clothes, or in the hotel room, the testimony of the victim did not need to be corroborated to convict the defendant of aggravated child molestation under O.C.G.A. § 16-6-4(c) and three counts of child molestation under O.C.G.A. § 16-6-4(a). Moe v. State, 297 Ga. App. 270, 676 S.E.2d 887 (2009).
Victim's testimony alone is sufficient to sustain conviction under O.C.G.A. § 16-6-4. - See Putnam v. State, 231 Ga. App. 190, 498 S.E.2d 340 (1998); Johnson v. State, 231 Ga. App. 823, 499 S.E.2d 145 (1998); Grooms v. State, 261 Ga. App. 549, 583 S.E.2d 216 (2003).
Evidence amply supported defendant's conviction for child molestation; the 12-year old victim's testimony alone was sufficient to sustain the conviction. Gibbs v. State, 256 Ga. App. 559, 568 S.E.2d 850 (2002).
Victim's testimony alone was sufficient to support defendant's convictions for incest and child molestation, and the evidence was sufficient to support defendant's statutory rape conviction as it was corroborated when the victim testified that the defendant, the victim's step-parent, began to ask the victim to masturbate and use sex toys, including vibrators, dildos, and other objects, and would use them on the defendant and on the victim when the victim was eight or nine years old; defendant began having sexual intercourse with the victim when the victim was about 12, even though the victim told the defendant that it was not right and that the victim did not like it; after one of the final acts of intercourse with defendant, the victim wiped the victim with a sock and kept the sock until the day the victim ran away to a friend's home and told the victim's friend about defendant's conduct, the semen stains on the sock were consistent with defendant's semen, and the state's expert's opinion was that epithelial cells present on the sock came from the victim's vaginal area; and when the victim was in the ninth grade, the victim told a friend about defendant's behavior but made the friend promise not to tell anyone. Eley v. State, 266 Ga. App. 45, 596 S.E.2d 660 (2004), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
Evidence of the victim alone was sufficient to authorize a guilty verdict in a child molestation case; there was no requirement that the victim's testimony be corroborated, and defendant's convictions of child molestation, aggravated child molestation, rape, aggravated sexual battery, and cruelty to children were affirmed. McKinney v. State, 269 Ga. App. 12, 602 S.E.2d 904 (2004).
Evidence was sufficient to support a defendant juvenile's adjudication of delinquency for child molestation as the victim testified that: (1) the defendant juvenile followed the victim down the steps and then pushed the victim against a railing as the defendant juvenile tried to unbutton the victim's pants; (2) the defendant juvenile unbuckled the defendant juvenile's belt, and tried to rub the defendant's genitals against the victim's genitals and make the victim touch the defendant's genitals; (3) the victim pulled away and began to cry; (4) the defendant juvenile asked the victim to give the defendant juvenile a hug twice and the victim complied because the victim wanted the defendant juvenile to let the victim go; and (5) the defendant juvenile told the victim to go to class and when the victim arrived at class, the victim laid the victim's head down on the desk and cried. In the Interest of Q.F., 280 Ga. App. 812, 635 S.E.2d 209 (2006).
Evidence that a defendant asked the victim to perform sex acts on the defendant supported a conviction for attempted child molestation, the evidence that the defendant put the defendant's tongue into the victim's mouth supported the defendant's child molestation conviction, and the evidence that the defendant asked the victim to scratch the defendant's genitals and to put the defendant's genitals in the victim's mouth, made the victim suck on the defendant's genitals, and made the victim swallow the defendant's semen supported the aggravated child molestation conviction; there was no requirement that the testimony of the victim of child molestation be corroborated. Redman v. State, 281 Ga. App. 605, 636 S.E.2d 680 (2006).
Despite the defendant's contrary claim, the child molestation and aggravated child molestation convictions were upheld on appeal, as supported by sufficient evidence provided by the child victim that the defendant touched the child's genitals and that defendant's "pee" went into the child's mouth. Manders v. State, 281 Ga. App. 786, 637 S.E.2d 460 (2006).
Sufficient evidence supported the defendant's convictions of child molestation under O.C.G.A. § 16-6-4 and aggravated sexual battery under O.C.G.A. § 16-6-22.2; the testimony of the victim and the defendant conflicted, but the testimony of the victim, alone, was sufficient to authorize the jury to find the defendant guilty. Goldstein v. State, 283 Ga. App. 1, 640 S.E.2d 599 (2006), cert. denied, No. S07C0623, 2007 Ga. LEXIS 338 (Ga. 2007).
Victim's testimony alone was sufficient under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) to establish the elements of a charge against the defendant of child molestation, in violation of O.C.G.A. § 16-6-4(a), as the victim testified that while she was at the defendant's home visiting his daughter, he requested that she kiss him and have sexual intercourse with him, and that he showed her his erect penis; there was also testimony from a jail nurse who confirmed that the defendant had a tattoo on his penis as described by the victim, and there was an internet instant-message conversation between the defendant and the victim, during which he apologized to her for his actions. Hammontree v. State, 283 Ga. App. 736, 642 S.E.2d 412 (2007).
Because sufficient direct evidence was presented via the victim's testimony that the defendant improperly touched and digitally penetrated the victim's vagina, convictions upon charges of aggravated sodomy, aggravated child molestation, and other crimes arising from that contact were upheld on appeal; further, any error related to the admission of the victim's videotaped statement was harmless, as such statement would have been admissible as res gestae or to prove the defendant's lustful disposition. Morrow v. State, 284 Ga. App. 297, 643 S.E.2d 808 (2007).
Victim testified that the defendant performed oral sex on the victim on two separate occasions; although that testimony represented the only evidence against the defendant, the testimony was sufficient to authorize the jury to find the defendant guilty of aggravated child molestation. Johnson v. State, 284 Ga. App. 147, 643 S.E.2d 556 (2007).
Victim's testimony that the defendant, the victim's cousin, engaged in an act of oral sodomy with the victim was sufficient to support the defendant's conviction of aggravated child molestation under O.C.G.A. § 16-6-4; it was not necessary that the victim's testimony be corroborated, and the victim's credibility was a matter for the jury. Flanders v. State, 285 Ga. App. 805, 648 S.E.2d 97 (2007).
Child molestation conviction was supported by sufficient evidence that during the middle of the night the defendant entered the bedroom where the 10-year-old victim was staying, laid down beside and behind the victim, rubbed the victim's back until the defendant's hand went down the victim's pants, pulled up the victim's pajama top, rubbed the victim's stomach area until the defendant's hand went under the victim's waistband and began toward the victim's private area, and only stopped when the victim demanded the defendant do so, at which time the defendant admitted the wrongfulness of the actions; a jury could have found such actions immoral and indecent and done with the intent to sexually arouse the defendant. Kolar v. State, 292 Ga. App. 623, 665 S.E.2d 719 (2008).
Testimony of an 11-year-old child that the defendant had sodomized the child on several occasions was sufficient by itself to convict the defendant of aggravated child molestation, O.C.G.A. § 16-6-4(c), as it was the jury's role to resolve any inconsistencies in the child's testimony or conflicts between the child's testimony and that of others. Terry v. State, 293 Ga. App. 455, 667 S.E.2d 109 (2008).
Evidence was sufficient to convict a defendant of child molestation and aggravated child molestation under O.C.G.A. § 16-6-4(a) and (c), respectively, because, even assuming the victim recanted the accusations on cross-examination, the victim testified on re-direct that the victim had not fabricated the story and was nervous about being in court and seeing the defendant. The victim's testimony alone, as it was believed by the jury, was sufficient to convict the defendant. Green v. State, 293 Ga. App. 752, 667 S.E.2d 921 (2008).
Evidence that a defendant forced himself on one young child and had intercourse with the child and that the defendant disciplined that child and the child's two siblings by forcing the children to take their clothes off, whipping the children with a belt, and beating or choking the children was sufficient to convict the defendant of child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children, O.C.G.A. § 16-5-70(b). Williams v. State, 293 Ga. App. 617, 668 S.E.2d 21 (2008).
Victim's trial testimony and evidence about the victim's outcry established that the defendant had the victim touch the defendant's sex organ and that the defendant ejaculated on the victim's face. This evidence authorized the jury to find the defendant guilty of two counts of child molestation in violation of O.C.G.A. § 16-6-4(a). Stillwell v. State, 294 Ga. App. 805, 670 S.E.2d 452 (2008), cert. denied, No. S09C0493, 2009 Ga. LEXIS 222 (Ga. 2009).
Sufficient evidence was presented to support a defendant's conviction for child molestation under O.C.G.A. § 16-6-4(a) because the victim's testimony, in and of itself, could support the conviction; the victim testified that the defendant got into the victim's bed, moved the victim's panties, and rubbed the defendant's private part against the victim's private part. Hughes v. State, 297 Ga. App. 581, 677 S.E.2d 674 (2009).
As a 14-year-old victim's testimony of being sexually abused by the defendant was sufficient, standing alone, to support the defendant's convictions of aggravated child molestation, even assuming that testimony about the content of text messages between the defendant and the victim was improperly admitted hearsay, the defendant was not entitled to a new trial. Hollie v. State, 298 Ga. App. 1, 679 S.E.2d 47 (2009), aff'd, 287 Ga. 389, 696 S.E.2d 642 (2010).
Despite the absence of any physical evidence, the victims' testimonies were sufficient to find defendant guilty of aggravated child molestation and child molestation under O.C.G.A. § 16-6-4; counsel's strategic decisions in failing to call impeachment witnesses did not amount to deficient performance. Barnes v. State, 299 Ga. App. 253, 682 S.E.2d 359 (2009).
Evidence from a 13-year-old victim that defendant, a friend of the victim's step-father, gave the victim bourbon and marijuana, then put fingers inside the victim's privates and also touched the victim's privates with the defendant's privates was sufficient to establish child molestation. Bright v. State, 301 Ga. App. 204, 687 S.E.2d 208 (2009).
Victim's testimony that the defendant penetrated her sexual organ with his finger was alone sufficient to prove the defendant guilty of child molestation (O.C.G.A. § 16-6-4(a)) and aggravated child molestation (O.C.G.A. § 16-6-22.2(b)), pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8). The testimony of the victim's cousin, two school friends, and the interviewing detective was admissible as substantive evidence under the former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820). Vaughn v. State, 301 Ga. App. 391, 687 S.E.2d 651 (2009).
Evidence from a defendant's nine-year-old daughter that the defendant placed defendant's hand and defendant's privates on her privates and that something like pee came out of the defendant's private was sufficient to convict the defendant of two counts of child molestation in violation of O.C.G.A. § 16-6-4(a)(1). Hernandez v. State, 304 Ga. App. 435, 696 S.E.2d 155 (2010).
Evidence was sufficient to sustain the defendant's convictions for child molestation and aggravated child molestation because the victim testified that the defendant kissed her on the mouth many times, fondled her breasts, licked her vagina and touched her vagina with his fingers, rubbed his penis against her vagina, and placed her mouth on his penis; although the defendant challenged the victim's motives and credibility on appeal, the jury, not the court of appeals, was tasked with determining witness credibility, and the jury was authorized to resolve any credibility issues against the defendant. Fogerty v. State, 304 Ga. App. 546, 696 S.E.2d 496 (2010).
Evidence that a defendant had sexual intercourse with his niece from age 14 to 17, touched her breasts and vagina with his mouth, touched her with sex toys, showed her pornography, and placed her mouth on his penis was sufficient to convict him of child molestation and incest in violation of O.C.G.A. §§ 16-6-4(a) and16-6-22(a)(6). Stott v. State, 304 Ga. App. 560, 697 S.E.2d 257 (2010).
Testimony of one of the minor victims, standing alone, as to the acts the defendant committed with the victim was sufficient for the jury to find the defendant guilty beyond a reasonable doubt of aggravated child molestation, in violation of O.C.G.A. § 16-6-4(c), and child molestation, in violation of O.C.G.A. § 16-6-4(a)(1). Cobb v. State, 309 Ga. App. 70, 709 S.E.2d 9 (2011).
Testimony from the victim that the defendant touched the victim, that the defendant touched the victim's chest, and that the defendant used the defendant's hand and mouth and evidence in the form of the victim's forensic interview that the defendant touched the victim's vaginal area with the defendant's hand was sufficient to find the defendant guilty of child molestation and sexual battery. Reyes v. State, Ga. App. , S.E.2d (Aug. 6, 2020).
Victimized by stepparent.
- Victim's testimony that when she was 14 years old, the defendant, her step-father, entered her bedroom, laid on top of her, rubbed her breasts, and kissed her on the mouth, neck, and breasts was sufficient to support a jury verdict that the defendant was guilty of child molestation in violation of O.C.G.A. § 16-6-4(a). Damerow v. State, 310 Ga. App. 530, 714 S.E.2d 82 (2011).
Sexual abuse by grandparent.
- Defendant's convictions for child molestation, aggravated child molestation, and two counts of cruelty to children in the first degree, in violation of O.C.G.A. §§ 16-5-70(b) and16-6-4(a), (c), as well as the defendant's conviction for attempt to commit rape, were supported by evidence, including testimony by the defendant's two grandchildren who were the victims of the instant crimes, as well as the introduction of similar transaction evidence, including sex offense convictions and similar acts by defendant against other minor victims; evidence of the similar transaction was properly admitted, as any issue as to its remoteness went to the weight of the evidence, not its admissibility. Shorter v. State, 271 Ga. App. 528, 610 S.E.2d 162 (2005).
Evidence supported the defendant's child molestation conviction when: (1) the defendant's 15-year-old grandchild testified that defendant molested the child in the defendant's home and in the defendant's pickup truck between the time the child was in kindergarten until about the time the child was in the sixth grade by fondling and inserting the defendant's finger into the child; (2) a physician testified that the physician found physical evidence that was consistent with penetration and sexual abuse; (3) an older grandchild testified that the older grandchild was molested by the defendant 25 years ago; and (4) evidence was presented that the defendant molested the defendant's five-year-old great-grandchild. Delk v. State, 274 Ga. App. 261, 619 S.E.2d 310 (2005).
Sufficient evidence supported defendant's conviction for child molestation in violation of O.C.G.A. § 16-6-4 because the nine-year-old victim testified that defendant touched the victim improperly and inserted the defendant's genitals into the victim, and a physician who examined the victim testified that the victim exhibited signs of subjection to repeated sexual contact. Alvarez v. State, 276 Ga. App. 105, 622 S.E.2d 453 (2005).
Evidence of defendant's prior sexual battery of a juvenile was properly admitted in defendant's trial for child molestation and attempted child molestation of a nine-year-old child to show defendant's lustful disposition toward molesting young children because several years earlier, defendant had pled nolo contendere to charges arising out of the touching the breast of a 16-year-old child and placing a hand on defendant's genitals. Cook v. State, 276 Ga. App. 803, 625 S.E.2d 83 (2005).
Trial court properly admitted evidence of defendant's prior child molestation conviction in a trial on a similar charge, as it was a similar transaction that was admitted for the purpose of showing defendant's course of conduct, lustful disposition, and bent of mind in dealing with children. Copeland v. State, 276 Ga. App. 834, 625 S.E.2d 100 (2005).
Convictions for child molestation, aggravated child molestation, and statutory rape were upheld as: (1) sufficient evidence was presented, via the three victims' testimony, to support the convictions; (2) testimony from one of the defendant's other children concerning similar transactions committed against the child was properly admitted in order to show the defendant's bent of mind and lustful disposition towards the defendant's own children; and (3) the defendant's trial counsel was not ineffective. McCoy v. State, 278 Ga. App. 492, 629 S.E.2d 493 (2006).
Defendant's child molestation conviction was upheld on appeal, as supported by sufficient evidence that defendant grabbed the victim's hand and rubbed it against the defendant's genitals, along with the similar transaction evidence presented by the victim's older sibling that defendant had previously touched the sibling high on the sibling's leg and on the sibling's chest in such a way that the sibling felt uncomfortable, and that on one occasion, defendant placed the sibling's hand on the defendant's genitals; moreover, the trial court properly admitted the latter evidence to establish defendant's state of mind, lustful disposition, and intent to commit the charged act. Cowan v. State, 279 Ga. App. 532, 631 S.E.2d 760 (2006).
Convictions of child molestation and aggravated child molestation were supported by sufficient evidence since the four minor victims testified about various sexual acts that the defendant had committed against them, including touching their genitals with the defendant's fingers, mouth, genitals, and a vibrator; three of the children told a school counselor about the sexual abuse, and all four victims told a Department of Family and Children Services case manager how the defendant had sexually molested them. Clements v. State, 279 Ga. App. 773, 632 S.E.2d 702 (2006).
Child molestation and aggravated child molestation convictions were upheld because: (1) sufficient evidence established the reliability of a child's hearsay statement to the child's aunt, and said statement was supported by other evidence; (2) any claimed Brady violation was waived and did not entitle defendant to a new trial; (3) denial of defendant's motion for a mistrial was harmless error given the strong evidence supporting defendant's guilt; and (4) testimony from an unlicensed psychologist was admissible, as the mere fact that the state's expert witness was not a licensed psychologist did not affect the admissibility of said testimony. Nelson v. State, 279 Ga. App. 859, 632 S.E.2d 749 (2006).
Defendant's convictions for aggravated child molestation and two counts of child molestation were supported by sufficient evidence, including the child victim's testimony that the defendant licked the victim's genitals, and masturbated in front of the victim twice; additionally, a videotape of the victim's interview by a case coordinator was played for the jury, and a detective testified regarding another interview of the victim, each describing acts of molestation by the defendant. Berman v. State, 279 Ga. App. 867, 632 S.E.2d 757 (2006).
Testimony presented by an 11-year-old child victim as to the defendant's act of oral sodomy, which was corroborated by the outcry witnesses and a doctor who examined the victim, was sufficient to permit the jury to find the defendant guilty of aggravated child molestation. Frankmann v. State, 281 Ga. App. 1, 635 S.E.2d 272 (2006).
Evidence that the defendant touched the defendant's grandchild in a sexual manner on several occasions, the defendant's admission to police that the defendant had fondled the grandchild, and the defendant's efforts to lure the grandchild into sexual situations with chocolate while attempting to secure the grandchild's silence sufficed to sustain the defendant's convictions of five counts of child molestation under O.C.G.A. § 16-6-4(a). Haynes v. State, 281 Ga. App. 81, 635 S.E.2d 370 (2006).
Although one conviction against the defendant for aggravated child molestation, in violation of O.C.G.A. § 16-6-4(a), was sustained because it was based on sufficient evidence of his ongoing sexual conduct against one of the minor daughters, another conviction on the same charge had to be reversed because there was no evidence to establish venue; the reversed charge was based on the defendant's having kissed one of the daughters on the lips, but there was no evidence that established when or when the incident occurred and the conduct was not ongoing. Cardenas v. State, 282 Ga. App. 473, 638 S.E.2d 866 (2006).
Evidence was sufficient to sustain a defendant's convictions on two counts of aggravated child molestation, although the defendant denied the allegations and numerous witnesses testified on the defendant's behalf; viewed in support of the verdict, there was evidence that the defendant and the 15-year-old victim had a relationship that began with romantic feelings on the victim's part toward the defendant, progressed to kissing and petting, and finally led to sexual intercourse and oral sodomy on numerous occasions. Maynard v. State, 282 Ga. App. 598, 639 S.E.2d 389 (2006).
During a defendant's trial for aggravated child molestation and related charges, evidence of the defendant's sexual misconduct against two younger children at the age of 12 was improperly admitted because it was more prejudicial than probative; there was no logical connection between the charged offenses and the prior misconduct because no pattern of continuous conduct or periods of incarceration between the incidents were shown, the defendant was a child when the previous events occurred and an adult at the time of the charged events, and no sexual misconduct was alleged to have occurred in the intervening years. Maynard v. State, 282 Ga. App. 598, 639 S.E.2d 389 (2006).
In a child molestation case, the trial court did not err in denying the defendant's motion for a directed verdict on two counts; a victim's statement that the defendant had touched her "chest" supported allegations that the defendant had touched her "breast," and allegations that the defendant had touched a victim's vagina were supported by the victim's statement that the defendant had touched "all my private stuff" and her pointing between her legs to indicate where the defendant had touched her. Cherry v. State, 283 Ga. App. 700, 642 S.E.2d 369 (2007).
Trial court's admission of the defendant's actions towards a victim during a night when she was visiting his daughter and sleeping at their home were properly admitted without notice and a hearing under Ga. Unif. Super. Ct. R. 31.3, as all of the actions were part of the res gestae of the defendant's child molestation crime, in violation of O.C.G.A. § 16-6-4, that resulted from his exposure of his penis to the victim; evidence of a prior difficulty between the defendant and the victim that occurred a week prior to the criminal incident was also properly admitted without notice and a hearing, as the evidence was admissible to show the defendant's motive, intent, and bent of mind in committing the act against the victim which resulted in the charge. Hammontree v. State, 283 Ga. App. 736, 642 S.E.2d 412 (2007).
Rational trier of fact could have found defendant guilty of child molestation against two victims beyond a reasonable doubt; defendant inserted a smooth, hard, pudding-covered object that one victim said felt like a finger into the victim's mouth seven times, and the other victim testified that the victim "heard a zipper," and defendant then touched the victim's lips with an unknown object. Ayers v. State, 286 Ga. App. 898, 650 S.E.2d 370 (2007), cert. denied, 2008 Ga. LEXIS 117 (Ga. 2008).
Because the defendant's prior sexual abuse of a young male relative was sufficiently similar to the sexual abuse of a young female relative, which was the subject of the convictions the defendant appealed from, to make evidence of that prior abuse admissible, no abuse of discretion resulted from the admission of that evidence to warrant reversal of convictions for both child molestation and aggravated child molestation. Howard v. State, 287 Ga. App. 214, 651 S.E.2d 164 (2007).
In defendant's conviction for child molestation, the trial court properly denied defendant's motion for directed verdict of acquittal as sufficient evidence existed based on testimony of the child victim's parent, who testified as to discovery of defendant on top of the victim; further evidence in support of defendant's conviction included the child's videotaped police interviews describing what happened. Lopez v. State, 291 Ga. App. 210, 661 S.E.2d 618 (2008).
In a prosecution for aggravated sexual battery and aggravated child molestation involving a 12-year-old child, evidence that the defendant had sexual intercourse with a 15-year-old child shortly before committing the charged crimes was properly admitted as the evidence was relevant to show bent of mind, course of conduct, and to corroborate the victim's testimony; the prejudicial effect of the evidence did not outweigh the probative value. Martin v. State, 294 Ga. App. 117, 668 S.E.2d 549 (2008).
Evidence supported a conviction of child molestation under O.C.G.A. § 16-6-4(a). The seven-year-old victim's testimony that the defendant showed the victim the defendant's "private part," corroborated by the testimony of witnesses to whom the child reported the incident soon thereafter was competent evidence, even though contradicted, to support the state's case. Brown v. State, 295 Ga. App. 542, 672 S.E.2d 514 (2009).
There was sufficient evidence to support a defendant's convictions for aggravated child molestation, child molestation, and false imprisonment with regard to allegations that the defendant forced a romantic friend's minor child to perform oral sex on the defendant several times over a three year period, based on the testimony of the victim (which alone was sufficient), the videotaped forensic interview of the victim, the testimony of the police investigator and the victim's mother concerning what the victim told them, as well as the testimony of the victim's siblings, who were eyewitnesses to one incident. Further, the testimony of the victim that the defendant locked the victim in the house and would not let the victim leave supported the conviction on the false imprisonment charge. Finally, the trial court was not required to merge the defendant's false imprisonment and aggravated child molestation convictions since the false imprisonment and aggravated child molestation were proven by different acts. Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377 (2009).
Evidence, including that defendant had access and opportunity to infect a victim at least two weeks prior to her exhibiting symptoms, and that the victim's immediate outcry was consistent with her statement to a doctor identifying defendant, and excluding the hypothesis that the victim's father was present prior to the onset of the victim's symptoms, was sufficient to convict defendant of aggravated child molestation in violation of O.C.G.A. § 16-6-4(c). Zuniga v. State, 300 Ga. App. 45, 684 S.E.2d 77 (2009), cert. denied, No. S10C0169, 2010 Ga. LEXIS 125 (Ga. 2010).
When the defendant appealed the defendant's conviction on multiple counts of violating O.C.G.A. §§ 16-6-3,16-6-4,16-6-5, and16-6-5.1, the defendant unsuccessfully argued that the trial court erred in admitting two similar transactions. As to the first similar transaction, the defendant induced any alleged error in that defendant's own counsel was the first to elicit the testimony of that transaction, and as to the second transaction, the trial court did not clearly err in finding that, because the transaction involved a sexual act by the defendant in the defendant's counseling office with a female whom the defendant was counseling, the transaction was sufficiently similar to one of the crimes at issue which alleged a sexual act by the defendant in the defendant's counseling office with a female. Evans v. State, 300 Ga. App. 180, 684 S.E.2d 311 (2009), cert. denied, No. S10C0215, 2010 Ga. LEXIS 304 (Ga. 2010).
Evidence was sufficient to convict a defendant of child molestation in violation of O.C.G.A. § 16-6-4(a)(1), although the four-year-old victim testified at trial that the defendant had not done anything to the victim. The jury could believe the forensic evidence that the victim's DNA was under the defendant's fingernails and the child's videotaped statement. McIntyre v. State, 302 Ga. App. 778, 691 S.E.2d 663 (2010).
Even though it involved boys, a prior child molestation conviction was properly admitted as similar transaction evidence in defendant's child molestation trial involving defendant's granddaughter because the prior conviction involved children, and the fact that the conviction was remote in time only affected the conviction's weight and credibility, and not the conviction's admissibility. Waters v. State, 303 Ga. App. 187, 692 S.E.2d 802 (2010).
Victim, who was age eighteen at the time of trial, testified that between the ages of seven and fourteen, the defendant molested her, putting his hand and his penis into her vagina and touching her all over her body. This evidence supported the defendant's convictions for child molestation, aggravated child molestation, and aggravated sexual battery. Wilson v. State, 304 Ga. App. 623, 697 S.E.2d 275 (2010).
Evidence was sufficient to support a sexual exploitation of children charge because the victims' testimony, although the testimony varied as to details, was consistent throughout that it was the defendant who touched the children and the defendant who took photographs of the children, and the interviewers stated that the girls did not appear to be coached; although one of the victims refused to testify at trial, the victim told a psychologist that the victim was afraid of the defendant, and the jury viewed the forensic interview of that victim and could make the jury's own determinations as to the victim's credibility. Vaughn v. State, 307 Ga. App. 754, 706 S.E.2d 137 (2011).
Evidence was sufficient to support the jury's findings that the defendant committed the offense of child molestation, O.C.G.A. § 16-6-4(a)(1), because the jury was authorized to infer that the defendant was kissing the victim on the mouth when the victim testified that they were kissing, and the evidence was sufficient to show that the defendant violated the statute prohibiting child molestation in at least two of the ways alleged in the indictment, which charged the defendant with kissing the victim on the mouth, exposing the defendant's privates to and having intercourse with the victim, who was under 16 years of age, with intent to arouse and satisfy their sexual desires; the defendant also arguably violated O.C.G.A. § 16-6-4(a)(1) by "dirty dancing" with the victim, which the defendant admitted to doing while testifying in the defendant's own defense. Judice v. State, 308 Ga. App. 229, 707 S.E.2d 114 (2011).
During the defendant's trial for aggravated child molestation and child molestation, the trial court did not abuse the court's discretion in admitting the similar transaction evidence regarding the defendant's prior aggravated molestation of another young boy because the evidence of the defendant's prior aggravated child molestation was appropriate for showing the defendant's lustful disposition toward molesting young boys; the state indicated that the state wished to introduce the similar transaction evidence for all appropriate purposes: identity, plan, motive, bent of mind, and course of conduct. Jackson v. State, 309 Ga. App. 450, 710 S.E.2d 649 (2011).
Trial court did not abuse the court's discretion in admitting testimony regarding the appellant's prior acts of sexual assault because that evidence was relevant to the appellant's intent, identity, and propensity and three other family members testified that the appellant engaged in the same conduct of rubbing their genitals and inserting the defendant's finger into their vaginas when the witnesses were the same age as the victim, which testimony was relevant to show the appellant's propensity and that it was the appellant who molested the victim. Dixon v. State, 350 Ga. App. 211, 828 S.E.2d 427 (2019).
Testimony of one of the defendant's granddaughters to the effect that the defendant touched her genital area with his hand and pulled her hand to touch his penis and the other victim's testimony that the defendant touched her genital area was sufficient to support the verdict of guilty on three child molestation charges in violation of O.C.G.A. § 16-6-4(a). Downer v. State, 310 Ga. App. 136, 712 S.E.2d 571 (2011).
Trial court did not err in denying the defendant's motion for new trial pursuant to O.C.G.A. §§ 5-5-20 and5-5-21 because the jury was authorized to conclude that the defendant was guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1); under the former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), the jury was entitled to consider the victim's out-of-court statements as substantive evidence, and the victim was made available at trial for confrontation and cross-examination, at which time the jury was allowed to judge the credibility of the victim's accusations. Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011).
Evidence from a child molestation victim was sufficient to convict a defendant of five counts of child molestation in violation of O.C.G.A. § 16-6-4. The trial court properly admitted evidence that the defendant had asked the victim's sister to sleep with the defendant on a couch, and properly denied evidence that the victim had made an accusation of sexual misconduct against the victim's grandfather. Mauldin v. State, 313 Ga. App. 228, 721 S.E.2d 182 (2011).
Evidence was sufficient to authorize the finder of fact to find that the defendant acted with the intent to arouse or satisfy the defendant's own or the victim's sexual desires because the defendant touched the victim inappropriately; the testimony of the victim was corroborated by the victim's young cousins, who witnessed the incident, and the victim gave consistent accounts of the incident to police officers, the forensic interviewer, and the victim's aunt's boyfriend. Reyes-Vera v. State, 313 Ga. App. 467, 722 S.E.2d 95 (2011).
Evidence that a defendant became highly intoxicated while having visitation with his seven-year-old daughter, that he licked her vagina, kissed her with his tongue in her mouth, and made her rub her hand on his penis was sufficient to support convictions for aggravated child molestation in violation of O.C.G.A. § 16-6-4(c). A jury could infer from the evidence that the defendant's intent was to arouse and satisfy his sexual desires pursuant to O.C.G.A. § 16-2-6. Obeginski v. State, 313 Ga. App. 567, 722 S.E.2d 162 (2012), cert. denied, No. S12C0908, 2012 Ga. LEXIS 1013 (Ga. 2012).
Evidence was sufficient to support the defendant's convictions for rape, O.C.G.A. § 16-6-1(a)(1), statutory rape, O.C.G.A. § 16-6-3(a), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), aggravated sodomy, O.C.G.A. § 16-6-2(a)(2), child molestation, O.C.G.A. § 16-6-4(a)(1), and aggravated child molestation, O.C.G.A. § 16-6-4(c), because the evidence not only included the victims' testimony, which was both direct evidence of the victims' own molestation and similar transaction evidence of the other's abuse, but also included the testimony of outcry witnesses and recordings of the forensic interviews of both victims. Williamson v. State, 315 Ga. App. 421, 727 S.E.2d 211 (2012).
Defendant's conviction for child molestation in violation of O.C.G.A. § 16-6-4(a)(1) could be supported by evidence that the defendant removed the victim's underwear or that the defendant exposed his penis because, in either event, the evidence was sufficient to sustain his conviction. Lipscomb v. State, 315 Ga. App. 437, 727 S.E.2d 221 (2012).
Defendant's challenge to the sufficiency of the evidence to support the defendant's aggravated child molestation conviction failed because the victim's testimony, standing alone, was sufficient to support the verdict, and the jury was entitled to consider the victim's out-of-court statements as substantive evidence under the former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820). Anderson v. State, 315 Ga. App. 679, 727 S.E.2d 504 (2012).
Defendant's challenge to the sufficiency of the evidence, based solely on the argument that the victim's testimony was unbelievable, failed because the victim's testimony alone was sufficient to establish the elements of child molestation. Medrano v. State, 315 Ga. App. 880, 729 S.E.2d 37 (2012).
Evidence was sufficient to support the defendant's conviction for aggravated child molestation, in violation of O.C.G.A. § 16-6-4(c), because the minor victim testified that the defendant performed oral sex on the victim and made the victim perform oral sex upon the defendant, which was corroborated by the testimony of a sexual assault nurse examiner that the victim disclosed that the defendant put the defendant's penis in the victim's mouth and that the victim described the look and taste of semen. Jordan v. State, 317 Ga. App. 160, 730 S.E.2d 723 (2012).
There was sufficient evidence to support the defendant's convictions for child molestation and enticing a child for indecent purposes based on the testimony of the victim, who stated that when she was 10-years-old, she encountered the defendant, who grabbed her arms, forcefully moved her from the stairwell into an empty apartment, and forced her to have vaginal intercourse with him. Rollins v. State, 318 Ga. App. 311, 733 S.E.2d 841 (2012).
There was sufficient evidence to support the defendant's conviction for child molestation, aggravated child molestation, and first degree cruelty to children with regard to the defendant's girlfriend's niece based on the testimony of the victim and similar transaction evidence involving the defendant's older daughter. Royal v. State, 319 Ga. App. 466, 735 S.E.2d 793 (2012).
Victims' testimony that the defendant pulled down the victim's pants, reached into the victim's underwear, fondled the victim's genitals, and touched them with the defendant's penis was sufficient to support the defendant's convictions for sexual battery and child molestation. Reid v. State, 319 Ga. App. 782, 738 S.E.2d 624 (2013).
When the victim described the defendant's abuse to the jury and in a recorded forensic interview that was played for the jury, and the victim included details that the forensic interviewer found inconsistent with someone who had been coached, the victim's testimony and the forensic interview supported the defendant's convictions for aggravated child molestation, child molestation, and first degree cruelty to children. Worley v. State, 319 Ga. App. 799, 738 S.E.2d 641 (2013).
Physical evidence of the trauma to at least one victim, together with the consistency of the victims' statements to the outcry witnesses, law enforcement, and the forensic interviewer, the similar transaction testimony, and the evidence showing opportunity, sufficed to establish each element of the charges of aggravated sexual battery and child molestation. Tudor v. State, 320 Ga. App. 487, 740 S.E.2d 231 (2013).
Denial of the defendant's motion for a directed verdict of acquittal was not erroneous because the victim's testimony was sufficient to permit the jury to infer that the defendant acted with the intent to arouse or satisfy the defendant's sexual desires, including that, in several incidents the defendant would come into the victim's bedroom at night and ask the victim if the victim wanted to sleep with the defendant. Defendant would then molest the victim by reaching underneath the victim's clothes, fondling the victim's breasts and vagina, nibbling on the victim's earlobes, and kissing the victim's breasts. Haithcock v. State, 320 Ga. App. 886, 740 S.E.2d 806 (2013).
Child victim's testimony that the defendant, her grandfather, asked her if she had pubic hair and tried to touch her vaginal area, asked her if she would like to touch his penis and exposed it to her, and attempted to kiss her on the lips, supported his convictions for child molestation and enticing a child for indecent purposes under O.C.G.A. §§ 16-6-4 and16-6-5. Craft v. State, 324 Ga. App. 7, 749 S.E.2d 16 (2013).
Trial court did not err in dismissing a juvenile's motion to set aside the adjudications of child molestation and aggravated child molestation because evidence that contradicted the victim's testimony that the victim did not have sexual intercourse with any other man did not go to the issue of whether the juvenile was guilty and the juvenile had admitted the allegations. In the Interest of D. H., 332 Ga. App. 274, 772 S.E.2d 70 (2015).
Victim's testimony that it hurt when the defendant inserted a finger into the victim's vagina was sufficient to prove the defendant caused injury to the victim for purposes of proving aggravated child molestation. Moon v. State, 335 Ga. App. 642, 782 S.E.2d 699 (2016).
Showering and watching pornography together sufficient.
- Victims' testimony, which was consistent with their outcry statements and forensic interviews, was sufficient to support the defendant's convictions for child molestation. The jury could have inferred that when the defendant showered nude with one of the victims and forced the other to watch pornography the defendant did so for purposes of sexual arousal or satisfaction. Brown v. State, 324 Ga. App. 718, 751 S.E.2d 517 (2013).
Testimony of the first victim that the defendant touched the victim's body from the victim's breasts to vagina with the defendant's mouth, penis, and hands and, also, with a vibrator, and made the victim place the victim's mouth on the defendant's penis was sufficient to support the defendant's convictions for child molestation. Wofford v. State, 329 Ga. App. 195, 764 S.E.2d 437 (2014).
Testimony of the second victim that the defendant licked the victim's vagina, rubbed the defendant's penis against the victim, masturbated in front of the victim, and put the victim's hands on the defendant's penis was sufficient to support the defendant's conviction for child molestation. Wofford v. State, 329 Ga. App. 195, 764 S.E.2d 437 (2014).
Defendant's conviction for child molestation was affirmed because the testimony of the victim was sufficient to show that the defendant had shown the victim a pornographic video, had touched the victim, and had engaged in sexual activity based on the victim's description and use of dolls to demonstrate the acts the defendant took toward the victim. Chamblee v. State, 333 Ga. App. 749, 777 S.E.2d 41 (2015).
Oral sex with 13 year old victim.
- Victim's testimony that the victim had oral sex with the defendant when the victim was 13 years old, standing alone, was sufficient to support the defendant's conviction for aggravated child molestation. Hill v. State, 331 Ga. App. 280, 769 S.E.2d 179 (2015).
Victimized by stepparent.
- Victim's testimony that she had sex, including oral sex, with the defendant, her stepfather, beginning when she was 12 years old was corroborated by, among other things, the defendant's admissions and, therefore, the evidence was sufficient to support the statutory rape, child molestation, aggravated child molestation, and incest convictions. Jackson v. State, 339 Ga. App. 313, 793 S.E.2d 201 (2016).
Touching over clothes sufficient.
- Evidence authorized the jury to infer that the defendant touched the victim child's vagina over clothing and that the defendant intended to arouse the defendant's sexual desires or those of the victim as there was evidence that the defendant specifically called the victim to the defendant, sat the victim on the defendant's lap, placed a hand on the victim's vagina over the victim's clothes, and held a hand there for up to a minute. Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018).
Victim's testimony that the defendant repeatedly sexually assaulted the victim by, inter alia, having sexual intercourse and oral sex with the victim throughout the applicable period and that the defendant impregnated the victim, causing the victim to undergo an abortion, was sufficient to support the defendant's convictions for child molestation, aggravated sexual battery, and statutory rape. Blackwell v. State, 346 Ga. App. 833, 815 S.E.2d 288 (2018), cert. denied, 2019 Ga. LEXIS 223 (Ga. 2019), cert. denied, 140 S. Ct. 283, 2019 U.S. LEXIS 4942, 205 L. Ed. 2d 145 (U.S. 2019), overruled on other grounds by Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).
Recanting of child victim's testimony.
- Witnesses testified pursuant to former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) that the defendant's stepchild, then 12, told them about being repeatedly raped and molested by the defendant. That the stepchild recanted these statements at trial did not render the hearsay inadmissible under former § 24-3-16, and as the stepchild's credibility was for the jury to decide, the evidence was sufficient to support the defendant's convictions for rape, incest, and child molestation. Harvey v. State, 295 Ga. App. 458, 671 S.E.2d 924 (2009).
Evidence was sufficient to sustain the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a), and aggravated child molestation, § 16-6-4(c), because although the victim recanted prior statements concerning the defendant's acts of sodomy, the recantation did not preclude a conviction since the victim's prior inconsistent statements concerning the defendant's acts of sodomy were allowed to serve as substantive evidence of the defendant's guilt. Stepho v. State, 312 Ga. App. 495, 718 S.E.2d 852 (2011).
Attempted child molestation.
- Asportation of the child is not an essential element of attempted child molestation. Wittschen v. State, 189 Ga. App. 828, 377 S.E.2d 681 (1988), aff'd, 259 Ga. 448, 383 S.E.2d 885 (1989).
Defendant's conviction of attempted child molestation was affirmed on evidence showing that defendant drove a van up to two young children who were roller-skating on a street, held up dollar bills and asked them if they would like to have the money, and when one girl responded affirmatively, said "let me stick my hand down your pants." Wittschen v. State, 189 Ga. App. 828, 377 S.E.2d 681 (1988), aff'd, 259 Ga. 448, 383 S.E.2d 885 (1989).
When there was undisputed evidence that defendant entered the 12-year old victim's house with the intent to engage in sexual activity and that defendant sat nude on the victim's bed while the victim was in the bed, a rational trier of fact could have concluded beyond a reasonable doubt that the defendant was guilty of criminal attempt to commit child molestation. Garmon v. State, 192 Ga. App. 250, 384 S.E.2d 278 (1989).
Indictment for attempted child molestation was sufficient without alleging the specific intent of child molestation under O.C.G.A. § 16-6-4. Livery v. State, 233 Ga. App. 332, 503 S.E.2d 914 (1998).
Indictment for attempted child molestation alleging that defendant took a substantial step toward commission of the crime of child molestation by: (1) engaging in sexually-explicit conversations over the internet; and (2) driving to an arranged meeting place was not fatally defective in that it failed to allege the commission of a crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).
Evidence that defendant undressed the defendant and a 14-year-old child and then climbed into bed with the child was more than sufficient to sustain defendant's conviction of criminal attempt to commit child molestation in violation of O.C.G.A. §§ 16-4-1,16-6-4(a). Colbert v. State, 255 Ga. App. 182, 564 S.E.2d 787 (2002).
Evidence was sufficient to support conviction for attempted child molestation under O.C.G.A. §§ 16-4-1 and16-6-4(a) where defendant: (1) wrapped defendant's body around a child so as to restrain the child's arms; (2) rubbed and kissed the child's back, placing defendant's feet in the child's crotch; and (3) asked where the child had been all of defendant's life. Tanner v. State, 259 Ga. App. 94, 576 S.E.2d 71 (2003).
Evidence supported defendant's attempted child molestation conviction as defendant showered a 13-year-old victim with gifts and marijuana to induce the child to have sexual intercourse with the defendant. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Defendant was properly ordered to register as sex offender because the convictions constituted criminal offenses against a victim who was a minor, pursuant to O.C.G.A. § 42-1-12(a)(9)(B) and because attempt convictions pursuant to O.C.G.A. § 16-4-1 were covered within the registration requirement; defendant was convicted of criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes, in violation of O.C.G.A. §§ 16-6-4(a) and16-6-5(a), respectively, as defendant communicated over the Internet with a police officer who was disguised as a 14-year-old child, and arranged to meet the alleged child, and the fact that an actual child was not involved did not negate the offense or the need for the registration, as there was no impossibility defense. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346 (2005).
Because sufficient evidence was presented which showed that the defendant took substantial steps to arouse the defendant's own sexual desires in soliciting both the defendant's child and the child's cousin, showing the cousin indecent photos, discussing masturbation with both, and trying to kiss the child between the legs, the defendant's attempted child molestation convictions were upheld on appeal. Carey v. State, 281 Ga. App. 816, 637 S.E.2d 757 (2006).
Rational trier of fact could have found the defendant guilty of attempted child molestation beyond a reasonable doubt because whether the defendant's actions were immoral or indecent and done with the requisite intent were questions for the jury. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009).
Evidence that the defendant, age 35, met a girl online whom the defendant believed was 15, that the defendant made numerous comments about how the defendant could get in trouble or go to jail, that the defendant engaged in sexually explicit conversations and directed the child to pornography sites showing black men having sex with white women, that the defendant drove to an arranged meeting place, and, that, when officers appeared, the defendant fled, was sufficient to convict defendant of violating O.C.G.A. §§ 16-4-1 (attempt),16-6-4 (child molestation),16-6-5 (enticement of a child), and16-10-24 (obstruction). Smith v. State, 306 Ga. App. 301, 702 S.E.2d 211 (2010).
Conviction of criminal attempt to commit child molestation and to entice a child upheld; the defendant had sexual contact with his daughters when they were children, with one of the daughters giving birth to two of his children, he touched the victim (his 10-year-old granddaughter) inappropriately, and he gave her a note asking to lie in bed with her and caress her. Shaum v. State, 355 Ga. App. 513, 844 S.E.2d 863 (2020).
Contact initiated through Craigslist.
- Law enforcement had probable cause to arrest the defendant for attempted enticement of a minor, in violation of O.C.G.A. § 16-6-4 and 18 U.S.C. § 2422(b), when the defendant initiated contact with undercover officers after reading a Craig's list post submitted by two girls, ages fourteen and fifteen, made telephone calls to the alleged girls, and rented a motel room to meet the girls. United States v. Slaughter, F. Supp. 2d (N.D. Ga. Mar. 1, 2011).
Evidence that the defendant raised the subject of masturbation with the child victim and asked her to perform that act upon him was sufficient to support his conviction of attempted child molestation. Pendley v. State, 308 Ga. App. 821, 709 S.E.2d 18 (2011).
Communication with someone believed to be under 16 years of age.
- Conviction of attempted child molestation is authorized when the evidence shows that the defendant communicated with an adult whom the defendant believed to be a child under sixteen years of age and took substantial steps to meet with that person to engage in sexual activity that would constitute child molestation. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436 (2014).
Substantial step taken towards child molestation.
- Evidence that the defendant sent email communications to a person the defendant believed to be the mother of a 14-year-old girl, arranged to pay for a night of "companionship" with the girl, and traveled to the arranged meeting place was sufficient to show that the defendant took a substantial step toward committing the crime of child molestation and supported the conviction for attempted child molestation. Schlesselman v. State, 332 Ga. App. 453, 773 S.E.2d 413 (2015).
Evidence that the defendant communicated with someone the defendant believed was a 15-year-old girl, asked the alleged child repeatedly for nude photos, told the child the defendant was a horny and dirty old man, and told the child they could play and get all worked up and be ready for fun before meeting, arranged a meeting, and traveled to the arranged meeting place was sufficient to support the defendant's conviction for attempt to commit child molestation. Reid v. State, 349 Ga. App. 196, 825 S.E.2d 555 (2019).
Admissibility of evidence of similar or connected offenses against children.
- In child molestation cases, evidence of other similar or connected sexual offenses against children is admissible to corroborate testimony of victim as well as to show lustful disposition of defendant. Ballweg v. State, 158 Ga. App. 576, 281 S.E.2d 319 (1981); Walls v. State, 166 Ga. App. 503, 304 S.E.2d 547 (1983); Pittman v. State, 178 Ga. App. 693, 344 S.E.2d 511 (1986).
Sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make evidence admissible. Phelps v. State, 158 Ga. App. 219, 279 S.E.2d 513 (1981).
Testimony of two witnesses about defendant's molestation of them when they were children, such incidents having occurred 11 and six years before trial, were properly admitted, where the prior incidents were extremely similar to the offenses for which defendant was tried and convicted. Childs v. State, 177 Ga. App. 257, 339 S.E.2d 311 (1985).
Trial court did not err in admitting, as a similar transaction, testimony that the defendant raped the defendant's sister-in-law when the sister-in-law was 15 years old and was not then in the protected age of minority. Ryan v. State, 226 Ga. App. 180, 486 S.E.2d 397 (1997).
Evidence of defendant's prior conviction for lewd and lascivious assault on a minor was admissible to prove the defendant's "intent to arouse or satisfy the sexual desires of either the child or the person." Blackwell v. State, 229 Ga. App. 452, 494 S.E.2d 269 (1997).
In a prosecution of defendant for molestation of the defendant's 12-year-old stepnephew, evidence that the defendant molested the defendant's five- or six-year-old stepsister nine or ten years earlier when the defendant was a juvenile was admissible. Gilham v. State, 232 Ga. App. 237, 501 S.E.2d 586 (1998).
Trial court did not abuse its discretion in admitting defendant's federal conviction for receiving child pornography through the mail as well as evidence of molesting an 11-year-old child as similar transactions in defendant's trial under O.C.G.A. § 16-6-4 for molesting a 13-year-old child. Hoffman v. State, 259 Ga. App. 131, 576 S.E.2d 102 (2003).
When three prior incidents and the current child molestation charges against the defendant all involved the defendant going to locations frequented by children and exposing the defendant's genitals to them, the prior incidents were sufficiently similar to be admitted as similar transaction evidence in defendant's trial for child molestation; the fact that the prior incidents, unlike the current ones, did not involve touching the child victims did not mean that the prior incidents were not sufficiently similar to the current ones to be admitted as there was no requirement that the prior crime or transaction had to be absolutely identical in every respect. Hostetler v. State, 261 Ga. App. 237, 582 S.E.2d 197 (2003).
Testimony of adult about abuse as child.
- Testimony of a defendant's adult stepdaughter regarding the defendant's molestation of her when she was a child was admissible as a similar transaction in the defendant's trial for molestation of his two granddaughters because both the present case and the similar transaction involved defendant molesting underage family members who were in his home. Downer v. State, 310 Ga. App. 136, 712 S.E.2d 571 (2011).
Trial court did not err in admitting similar transaction evidence because certified copies of the defendant's prior conviction were sufficient to prove not only the similarity between the crimes for which the defendant was convicted, aggravated sexual battery, aggravated sodomy, child molestation, and enticing a child for indecent purposes, and the former crimes but also to establish that the defendant was, in fact, convicted of those offenses; the certified copies the state submitted included an indictment charging the defendant with continuous sexual abuse against a child to whom the defendant had recurring access and with whom the defendant engaged in three and more acts of lewd and lascivious conduct and with lewd and lascivious conduct upon the same child. Spradling v. State, 310 Ga. App. 337, 715 S.E.2d 672 (2011).
Because the defendant's prior convictions under O.C.G.A. § 16-12-100.2(d)(1) and (e)(1) and the defendant's indictment for aggravated sexual battery, aggravated child molestation, and child molestation alleged crimes that were sexual in nature with minors and involved a lustful disposition, the independent offenses were admissible under Ga. Unif. Super. Ct. R. 31.3(B). Butler v. State, 311 Ga. App. 873, 717 S.E.2d 649 (2011).
Trial court properly admitted similar transaction evidence during the defendant's trial for aggravated child molestation, aggravated sexual battery, and child molestation because despite the defendant's age at the time, the evidence was relevant to show the defendant's lustful disposition with regard to younger females, the conduct with which the defendant was charged; the trial court properly considered the defendant's youth at the time of the similar transaction, along with the significant age difference between the defendant and the victim, the defendant's attempt to conceal the defendant's behavior by acting in secluded locations, and the nature of the acts the defendant committed before concluding that the evidence was admissible. Ledford v. State, 313 Ga. App. 389, 721 S.E.2d 585 (2011).
Admission of games played 15 years earlier.
- When the defendant was convicted of child molestation, aggravated child molestation, statutory rape, and one count of rape, the testimony of the defendant's sister regarding an incident that occurred when the sister was nine or 10 years old in which the defendant and a group of younger cousins played a game that involved sexual contact, including kissing on the mouth, and touching private parts, was properly admitted as the evidence tended to show the defendant's lustful disposition toward young girls and inappropriate or questionable behavior, even though the prior conduct was not illegal; and the incident, which occurred about 15 years prior to the current crimes, was not too remote in time to the charged crimes. Taylor v. State, 339 Ga. App. 321, 793 S.E.2d 198 (2016).
Trial court properly permitted the state to introduce evidence of the defendant's two prior bad acts, a 2009 incident of exposure in front of underage girls and a 2012 incident of attempt to sexually assault a female neighbor, because those acts were not the faultless acts of an innocent child, but rather demonstrated evidence of the defendant's lustful disposition and were relevant. Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017).
Failure to hold Rule 31.3(B) hearing before admitting similar transaction evidence error.
- In a child molestation case, the trial court's failure to hold a hearing under Ga. Unif. Super. Ct. R. 31.3(B) before admitting similar transaction evidence concerning the defendant's alleged abuse of other children was not harmless error. As the only direct testimony came from the victim, there was no physical evidence of abuse, and the defendant did not testify, it could not be said that the similar transaction evidence did not contribute to the verdict. Sheppard v. State, 294 Ga. App. 270, 669 S.E.2d 152 (2008).
Admissibility of evidence of similar sex act against adult.
- Admission of testimony of similar sex acts with a prior adult victim to indicate a likelihood a defendant performed the same sex acts that the child victim claimed was not error since the state made the three showings necessary for that similar transaction evidence: (1) proper purpose; (2) commission of a separate offense; and (3) similarity of the separate and charged offense. Kingsley v. State, 268 Ga. App. 729, 603 S.E.2d 78 (2004).
Evidence of similar or connected sexual offenses against adults.
- In a child molestation and aggravated sexual battery prosecution, evidence that before assaulting adult victims, defendant grabbed the victim by the back of the victim's hair or held the victim's neck, was properly admitted as "other transactions" evidence, since defendant used a similar method to control the child victim before sexually assaulting the victim; this evidence was relevant to show the defendant's course of conduct and rebut the defendant's defense of fabrication. That the prior acts involved adults did not preclude their admission as similar transactions. Helton v. State, 268 Ga. App. 430, 602 S.E.2d 198 (2004).
Defendant was charged with, inter alia, child molestation and cruelty to children for touching a 15-year-old child's genital area and breast, putting defendant's mouth on the child's breast, and calling the child sexually repulsive names. It was proper to admit similar transaction evidence showing that the defendant had inappropriately touched an 18-year-old's bare leg and called that victim similar sexually repulsive names as it showed the defendant's bent of mind to inappropriately touch young people of the opposite sex. Murray v. State, 293 Ga. App. 516, 667 S.E.2d 382 (2008).
In convictions of child molestation and aggravated child molestation under O.C.G.A. § 16-6-4 and of aggravated sexual battery under O.C.G.A. § 16-6-22.2(b), evidence of two prior similar transactions was properly admitted because even though both victims were 18, they were substantially younger than defendant, who was 35 years old at that time, and both of the similar transaction incidents involved similar sexual deviancy as the instant case. Woods v. State, 304 Ga. App. 403, 696 S.E.2d 411 (2010).
Trial court did not abuse the court's discretion in admitting the defendant's prior sexual battery conviction during the defendant's trial for child molestation, O.C.G.A. § 16-6-4(a), and aggravated child molestation, O.C.G.A. § 16-6-4(c), because the prior sexual battery and the molestation of the victim were similar; the defendant pled guilty to the sexual battery, establishing that the defendant had committed the separate offense, and both the prior sexual battery and the molestation involved the defendant's acts of touching the female victims' breasts and occurred within a three-month time frame. Stepho v. State, 312 Ga. App. 495, 718 S.E.2d 852 (2011).
Questioning defendant's character witnesses as to knowledge of defendant's other crimes allowed.
- In a trial for child molestation the trial court did not err by allowing the state to ask witnesses who had testified as to defendant's good reputation if they were aware that defendant had been convicted of child molestation in 1959. It is not error for the state to ask a character witness on cross-examination if the witness has heard, or is "aware," that defendant had been convicted of certain crimes, particularly where evidence of such prior conviction is offered into evidence either at the time of, or subsequent to, cross-examination of the witness. Eubanks v. State, 180 Ga. App. 355, 349 S.E.2d 244 (1986).
Exclusion of evidence of state's witness's mental illness could not be reviewed.
- In the defendant's appeal from convictions based on sex acts committed against the defendant's step-daughter, O.C.G.A. §§ 16-5-70(b),16-6-2, and16-6-4, the defendant's claim that the trial court erred in excluding evidence that the victim's grandmother, who lived with the family and insisted to the mother that the defendant was molesting the child, had been diagnosed with mental illness could not be reviewed because trial counsel did not proffer the evidence. Whitelock v. State, 349 Ga. App. 28, 825 S.E.2d 426 (2019).
Questioning defendant as to later arrest reversible error.
- Permitting the prosecutor to ask defendant if defendant had been arrested on a sex charge subsequent to the incident in question at defendant's trial for child molestation and enticing a child for indecent purposes was reversible error, where the sole issue in the case was the credibility of defendant and the alleged victim. Thomas v. State, 178 Ga. App. 674, 344 S.E.2d 496 (1986).
Failure to show ineffective assistance of counsel.
- Despite the testimony of two witnesses improperly bolstering the testimony of the sex abuse victim, the defendant failed to show ineffective assistance of counsel as review of the record revealed that a reasonable lawyer might have decided not to object as sound trial strategy as one witness was an expert that may have hurt the defense if contradicted and the other was an emotional witness who cried and had no personal observations of anything testified to upon examination. Gilmer v. State, 339 Ga. App. 593, 794 S.E.2d 653 (2016).
Evidence of victim's age sufficient.
- In a child molestation case, there was sufficient evidence that the victim was under 16 at the time of the incidents in question; the victim had testified that the victim was 14 or 15 when the defendant started touching the victim inappropriately and that the incidents happened when the victim was in the eighth grade, a time at which the victim said that the victim was 15. Boynton v. State, 287 Ga. App. 778, 653 S.E.2d 110 (2007).
There was sufficient evidence to support a defendant's conviction for child molestation, although no one testified as to the child victim's age at the bench trial, as the trier of fact was permitted to deduce that the victim was under the age of 16 by its observation of the victim's childlike demeanor and prepubescent body in the videotaped interview, which took place only two days after the incident in question. Day v. State, 293 Ga. App. 543, 667 S.E.2d 392 (2008).
Failure to present evidence of birthdate.
- Trial court did not err by denying the defendant's special demurrer to two counts of incest with regard to the defendant's younger daughter based on the daughter not being under the age of 16 because the defendant failed to present any evidence of the daughter's birthdate. Blanton v. State, 324 Ga. App. 610, 751 S.E.2d 431 (2013).
Evidence of victim's reputation for nonchastity is inadmissible.
- To extent that alleged evidence, sought to be introduced by defendant, concerning general reputation and character of victim, dealt with victim's reputation for nonchastity, it was inadmissible at trial prosecution for child molestation. Lively v. State, 157 Ga. App. 419, 278 S.E.2d 67 (1981).
Evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim's reputation for nonchastity or the victim's preoccupation with sex. Hall v. State, 196 Ga. App. 523, 396 S.E.2d 271 (1990).
Absent a showing of relevance, evidence of a child's past sexual history, including acts committed by persons other than the accused, is inadmissible. This is true whether the evidence is contained in defendant's admission or otherwise. Stancil v. State, 196 Ga. App. 530, 396 S.E.2d 299 (1990).
Past sexual experience of child irrelevant as to defendant's guilt.
- Since knowledge of a crime gained through being a victim of that crime at the hands of others can have no relevance to the issue of guilt or innocence of the defendant on trial, the past sexual experience of a child in a molestation case is irrelevant to the issue of whether the molestation was committed by the defendant on trial. Chastain v. State, 180 Ga. App. 312, 349 S.E.2d 6 (1986), aff'd, 257 Ga. 54, 354 S.E.2d 421 (1987).
Inquiry into victim's past sexual experiences was properly refused, even where a physician testified that in examining the victim it was obvious the victim had been sexually active. Worth v. State, 183 Ga. App. 68, 358 S.E.2d 251 (1987).
Evidence of prior unrelated sexual molestation admissible.
- Evidence of a prior unrelated sexual molestation of the victim was admissible to establish other possible causes for the behavioral symptoms exhibited by the child, which were described as typical child sexual abuse accommodation syndrome and to explain the medical testimony regarding the victim's injuries. Hall v. State, 196 Ga. App. 523, 396 S.E.2d 271 (1990).
Evidence of another similar transaction involving defendant consisting of both words and actions, in the child's presence, including touching of the child, was properly admitted, despite any dissimilarity from the act charged; the sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts or other conduct perpetrated upon them, was of sufficient similarity to make the evidence admissible. Joiner v. State, 265 Ga. App. 395, 593 S.E.2d 936 (2004).
Trial court's error in not permitting the defendant to show that the spouse's minor child, whom the defendant was charged with molesting, made an allegation of molestation with respect to another individual that the child later denied, was harmless given the overwhelming evidence against defendant, including the facts that there was photographic evidence that the child was molested in the defendant's bedroom, that the spouse and the child's uncle both identified the child in the photographs, that a Polaroid camera like that used to take the photographs was found in defendant's home, that the spouse had testified that the spouse had not left the child alone in the house with any person other than defendant, and that the photographs were found in a house owned by defendant in a file containing personal items. Holloway v. State, 278 Ga. App. 709, 629 S.E.2d 447 (2006).
Evidence of child victim's past boyfriends may be excluded.
- Although the former rape shield statute, former O.C.G.A. § 24-2-3 (see now O.C.G.A. § 24-4-412), did not require the exclusion of evidence of a child molestation victim's past boyfriends and difficult past because the charge was not an aggravated charge, the trial court was authorized to evaluate the relevance of any evidence and exclude the evidence on that basis. Cantu v. State, 304 Ga. App. 655, 697 S.E.2d 310 (2010).
Conflicts in victim's statements pretrial and at trial.
- When in a pretrial statement, the victim testified that the defendant fondled the victim, but at trial the victim testified that the story was made up, the jury was authorized to believe the victim's pretrial statements rather than the in-court disavowal; thus, the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of child molestation beyond a reasonable doubt. Lee v. State, 250 Ga. App. 110, 550 S.E.2d 696 (2001).
Defendant's conviction for aggravated child molestation under O.C.G.A. § 16-6-4 was affirmed because the trial court did not err by admitting the victim's prior out-of-court statement made in the initial interview with the police investigator, pursuant to O.C.G.A. § 24-8-820, that the victim believed that the bleeding from the victim's vagina had been caused by the defendant. Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017).
Evidence and victim's statement later recanted.
- Evidence in the form of a videotape of the defendant's daughter playing with anatomically correct dolls following defendant's arrest for sexually assaulting his girlfriend and daughter, together with the girlfriend's testimony and statements the daughter made to investigators following defendant's arrest, was sufficient to find defendant guilty of child molestation beyond a reasonable doubt, even though the daughter later recanted her statements. Higgins v. State, 251 Ga. App. 175, 554 S.E.2d 212 (2001).
Former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) did not require the child to corroborate the hearsay testimony, and conflicts between the videotaped statement and the testimony of the child at trial did not necessarily render the former inadmissible but rather present a question of credibility of the witness to be resolved by the trier of fact; despite a child victim's apparent recantation of the child's accusations of molestation at trial, sufficient evidence supported convictions of child molestation and aggravated child molestation when the victim described the molestation in a pre-trial videotaped interview, when an expert witness testified that the children may recant testimony with regard to sexual abuse for reasons unrelated to falsity, including embarrassment and fear, and a doctor also testified that the doctor's examination of the victim revealed "unusual" findings that would have caused the doctor to inquire regarding sexual abuse if those findings had appeared on a routine exam. Amerson v. State, 268 Ga. App. 855, 602 S.E.2d 857 (2004).
There was sufficient evidence to support defendant's conviction for child molestation of the victim, the defendant's seven year old child, because a rational trier of fact could have concluded beyond a reasonable doubt that the victim's fear of punishment and the other parent's disapproval caused the victim to recant. The jury was authorized to believe the victim's videotaped testimony, corroborated by the victim's statements to the doctor who examined the victim, that the victim's parent had, on numerous occasions, touched the victim's genitals, rather than the victim's in-court disavowal. King v. State, 268 Ga. App. 707, 603 S.E.2d 54 (2004).
In addition to the substantive evidence of defendant's guilt, provided by the victim's prior inconsistent statements, evidence of women's sexy clothing found in defendant's hotel room, which the victim said that defendant had purchased, and information downloaded from an Internet site detailing the pimping lifestyle, was sufficient evidence to authorize a rational trier of fact to find defendant guilty of aggravated child molestation, statutory rape, and pimping. Lewis v. State, 278 Ga. App. 160, 628 S.E.2d 239 (2006).
Trial court was within the court's discretion in restricting cross-examination of the victim in a child molestation case regarding the fact that when she was five and nine years old she slept in a bed with an uncle when the conviction rested upon the testimony of the parties and did not involve expert testimony or the child abuse syndrome. Chastain v. State, 257 Ga. 54, 354 S.E.2d 421 (1987).
When the trial court refused evidence of the child's asserted unusual sexual proclivity, apparently offered to show the child initiated the sexual encounters and fabricated the evidence upon being rejected by the child's step-grandfather, there was no abuse of discretion by the trial court in its limitation of the defendant's cross-examination on this point. Deyton v. State, 182 Ga. App. 73, 354 S.E.2d 625 (1987).
No abuse of discretion resulted from the admission of testimony from the investigating officer, the child victim's mother, and the child victim's sister, about the alleged child molestation committed by the juvenile as: (1) the child was available to testify; (2) cross-examination of the child victim in the judge's chambers was attempted, but proved unsuccessful; and (3) the judge ruled that no further purpose would be served by having the child examined in the open courtroom. In the Interest of S.S., 281 Ga. App. 781, 637 S.E.2d 151 (2006).
Evidence of victim's disciplinary problems in school is irrelevant.
- Trial court did not err in granting state's motion in limine, which sought to prevent defendant from introducing victim's school records in attempt to show that the victim had disciplinary problems, since such evidence was absolutely irrelevant to any issue in prosecution for child molestation. Lively v. State, 157 Ga. App. 419, 278 S.E.2d 67 (1981).
No Crawford violation.
- In a delinquency proceeding on a charge of child molestation, even assuming that a police officer's statements were wrongly admitted, that testimony was merely cumulative of other properly admitted testimony presented by both the child's mother and the child's sister, and the admission did not require reversal of the court's adjudicatory findings. In the Interest of S.S., 281 Ga. App. 781, 637 S.E.2d 151 (2006).
Trial court properly denied the defendant's motion for a new trial and upheld his conviction for child molestation because even if the trial court erred by admitting the child victim's recorded interview and her statements to the police investigator, the forensic interviewer, her mother, and a relative, any such error was harmless beyond a reasonable doubt because the evidence against the defendant was so overwhelming and cumulative in the nature of the testimony of the emergency room physician, the defendant's written statement and recorded confession, and his admissions to others; plus, the child victim's recantations were also admitted into evidence. Welch v. State, 318 Ga. App. 202, 733 S.E.2d 482 (2012).
No ex post facto violation.
- Defendant's contention on appeal that a sentence of life imprisonment as a recidivist child molester under O.C.G.A. § 16-6-4(b) rendered that statute an unconstitutional ex post facto law was rejected as the fact that the defendant's prior conviction yielded an increased punishment did not convert the statute into an unconstitutional ex post facto law; rather, the statute punished offenders only for a future offense, which punishment was rationally enhanced by the prior conviction. Williams v. State, 284 Ga. App. 255, 643 S.E.2d 749 (2007).
Admission of partial statement upheld.
- Trial court did not err by allowing the state to introduce the defendant's recorded interrogation into evidence with the defendant's statements that the victim told the defendant that the victim was almost 18 years old and that the defendant would not have had sex with the victim if the defendant had known that the victim was younger redacted as the defendant's belief as to the victim's age was not relevant because it was not an essential element of either statutory rape or child molestation; mistake of fact regarding the victim's age was not a defense to either crime; and any statement the victim might have given regarding the victim's age was not admissible for impeachment purposes. West v. State, 344 Ga. App. 274, 808 S.E.2d 914 (2017), cert. denied, 2018 Ga. LEXIS 608 (Ga. 2018), cert. denied, 2019 U.S. LEXIS 783 (U.S. 2019).
It was not error to admit a taped interview of the victim by the police almost one year after the alleged offense, where defendant's counsel attacked the veracity of the victim, defendant had the opportunity to confront the victim and cross-examine the victim under oath about the victim's out-of-court statement, and the out-of-court statement was cumulative to that of the victim on the witness stand. Lynn v. State, 181 Ga. App. 461, 352 S.E.2d 602 (1986).
Victim's testimony alone sufficient to sustain conviction.
- Victim's testimony alone was sufficient to sustain convictions for child molestation and aggravated child molestation when, inter alia, the victim testified that defendant had fondled and performed oral sex on the victim and had forced the victim to reciprocate in performing oral sex on the defendant. Spradlin v. State, 262 Ga. App. 897, 587 S.E.2d 155 (2003).
Victim's prior inconsistent statements.
- Conviction for child molestation can rest upon prior inconsistent statements of the victim alone. Weeks v. State, 187 Ga. App. 307, 370 S.E.2d 344 (1988), aff'd, 258 Ga. 662, 374 S.E.2d 532 (1988).
Victim's videotaped statement that the molestation "hurt" the victim was sufficient to support a conviction of aggravated child molestation involving injury to the child under O.C.G.A. § 16-6-4(c), even though at trial the victim could not remember whether the molestation hurt. It was permissible to introduce a forgetful witness's prior consistent statement when the witness testified at trial and was subject to cross-examination. Waters v. State, 288 Ga. App. 260, 653 S.E.2d 849 (2007).
Testimony of mother as to son's complaint held admissible. Walls v. State, 166 Ga. App. 503, 304 S.E.2d 547 (1983).
Testimony by mother of victim concerning allegations made by her child to her against defendant was properly admitted, where the court considered atmosphere, circumstances, spontaneity, and demeanor in judging the reliability of the statement. Ortiz v. State, 188 Ga. App. 532, 374 S.E.2d 92, cert. denied, 188 Ga. App. 912, 374 S.E.2d 92 (1988).
Conviction for child molestation, O.C.G.A. § 16-6-4(a)(1), was supported by evidence that, at a house party where the adults were drinking alcohol, the victim's mother found the defendant in a closed room, sitting on the couch, leaning back, with his pants completely open and his arm around the victim's waist, and that the victim stated the defendant asked the victim to touch the defendant's penis. Matabarahona v. State, 335 Ga. App. 25, 780 S.E.2d 731 (2015), cert. denied, No. S16C0507, 2016 Ga. LEXIS 220 (Ga. 2016).
Testimony of defendant's adult daughters.
- Trial court properly allowed two of defendant's adult daughters to testify that defendant had molested them when they were young girls. Ortiz v. State, 188 Ga. App. 532, 374 S.E.2d 92, cert. denied, 188 Ga. App. 912, 374 S.E.2d 92 (1988).
Testimony of defendant's spouse.
- Defendant failed to make a strong showing that the trial court improperly relied upon defendant spouse's hearsay testimony in finding that defendant was a danger to the community and in sentencing defendant to 20 years to serve for defendant's first child molestation offense under O.C.G.A. § 16-6-4(b); defendant failed to rebut the presumption that a trial judge sitting without a jury separated the legal evidence from facts not properly in evidence in reaching a decision. Ingram v. State, 262 Ga. App. 304, 585 S.E.2d 211 (2003).
Spouse guilty of aiding and abetting in child molestation.
- Evidence was sufficient to support the defendant's convictions of aiding and abetting, under O.C.G.A. § 16-2-20, the defendant's spouse in enticing a minor child for indecent purposes, in violation of O.C.G.A. § 16-6-5(a), and of child molestation. Evidence was presented that: (1) when the defendant's spouse brought the victim back to their home, the spouse left the victim with the defendant who admitted to giving the victim thong panties; (2) the defendant gave the victim alcohol, and gave the victim pornographic materials to read before the defendant's spouse came home; and (3) the defendant was close by on the couch when the defendant's spouse pulled down the victim's pants, tried to kiss the victim, pulled down the victim's underwear, and offered the victim money to put on the thong. Dockery v. State, 309 Ga. App. 584, 711 S.E.2d 100 (2011).
Evidence was sufficient for the jury to find a defendant guilty of child molestation beyond a reasonable doubt as it was within the jury's province to reject the defendant's defense denying the crime with regard to the victim as well as with regard to the witnesses who testified as to similar transactions with the defendant. The testimony of the victim was corroborated by an investigator and a forensic interviewer, who testified as to what the victim had told had occurred; the victim's statements were corroborated by the sheriff's investigator; and the jury was entitled to consider the victim's out-of-court statements as substantive evidence under the former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820). Lamb v. State, 293 Ga. App. 65, 666 S.E.2d 462 (2008).
Trial court did not err in ruling that the state could compel the defendant's wife to testify even though she was not a witness to the specific act charged, child molestation, because the wife testified that she did not know that the defendant had been applying ointment to the victim, and that evidence was sufficiently relevant to the molestation acts charged against the defendant so that the wife's testimony was compellable under former O.C.G.A. § 24-9-23(b) (see now O.C.G.A. § 24-5-503). O'Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010).
Evidence was sufficient to support the defendant's conviction for aggravated child molestation, including evidence that the defendant's act of sexual intercourse with the defendant's 14 year old daughter caused the daughter to endure circumstances of childbirth so painful and traumatic to her body that a jury could conclude that the daughter was physically injured and evidence that the daughter suffered severe vaginal tearing and life-threatening blood loss during childbirth and six-weeks of pain requiring medication. Daddario v. State, 307 Ga. 179, 835 S.E.2d 181 (2019).
Victim's testimony that, on the night in question, the victim woke up to find the defendant sitting on the victim's bed and rubbing the victim's buttocks and testimony from the victim's mother that the mother walked into the victim's bedroom and saw the defendant with the defendant's hand in the victim's pants was sufficient to support the defendant's conviction for child molestation. Gathers v. State, 355 Ga. App. 761, 844 S.E.2d 882 (2020).
Testimony from the victim's mother that the victim told the mother that when the victim and the defendant were in the mother's room, the defendant showed the victim the defendant's "no-no", placed the victim's hand on it, and wouldn't let it go until the victim promised not to tell the mother, and testimony from the forensic psychologist who interviewed the victim that the victim told the psychologist the defendant made the victim slowly rub the defendant's penis was sufficient to convict the defendant of child molestation. Allison v. State, Ga. App. , 846 S.E.2d 222 (2020).
There was sufficient evidence of aggravated child molestation and incest, based on the defendant's act of sodomy, including testimony that the defendant, the victim's stepfather, tried to place the defendant's penis in the victim's mouth and the child fought the defendant off and the defendant's recorded admission to having the victim "go down on" the defendant once or twice, as well as the defendant's statement that the victim didn't like it and it didn't last long. Miranda v. State, 354 Ga. App. 777, 841 S.E.2d 440 (2020).
Victimized by parent's lover.
- Evidence that the victim told the victim's older brother and a forensic interviewer that the defendant made the victim massage the defendant's penis to the point of ejaculation was sufficient to support the defendant's conviction for child molestation. Maurer v. State, 320 Ga. App. 585, 740 S.E.2d 318 (2013).
Evidence, which included a picture the victim drew showing the victim's markings on the victim's buttocks along with the victim's written words "no, no, no" and a physical examination that revealed healed scars on the victim's anus, which the examining expert opined was consistent with penetration by a penis, supported the defendant's convictions for aggravated child molestation and child molestation under O.C.G.A. § 16-6-4(a)(1) and (c). Carter v. State, 321 Ga. App. 877, 743 S.E.2d 538 (2013).
Evidence was sufficient to authorize a juvenile's adjudication of delinquency for acts of aggravated sodomy and child molestation beyond a reasonable doubt based on the evidence that showed that the juvenile not only had rubbed the juvenile's penis against the victim's buttocks, but also placed the penis inside the victim's anus and that such contact hurt the victim. In the Interest of M.C., 322 Ga. App. 239, 744 S.E.2d 436 (2013).
While the victim initially identified someone else as the assailant, evidence that that defendant's DNA matched the seminal fluid found on the victim's clothing, the defendant was seen near the house shortly after the rape, and the defendant's shirt was found in the residence supported the defendant's convictions for rape, child molestation, false imprisonment, and burglary. Couch v. State, 326 Ga. App. 207, 756 S.E.2d 291 (2014).
Victim's testimony that the defendant told the victim to remove the victim's underwear and then placed the defendant's private in the victim's butt, testimony from the defendant's friend that the defendant admitted masturbating behind the victim's naked body, and the fact that fluid and sperm matching the defendant's DNA were found on the victim's bedsheet supported a conviction for child molestation. O'Rourke v. State, 327 Ga. App. 628, 760 S.E.2d 636 (2014).
Evidence that the victim was under the age of 16, that the defendant had expressed a sexual interest in her, and that the defendant asked the victim about her sexual arousal and put his hand down her pants, touching her vagina, was sufficient to authorize the jury to find the defendant guilty of child molestation. Watson v. State, 329 Ga. App. 334, 765 S.E.2d 24 (2014), aff'd in part and rev'd on other grounds, 297 Ga. 718, 777 S.E.2d 677 (2015); vacated on other grounds, 335 Ga. App. 227, 780 S.E.2d 822 (2015).
Evidence was sufficient to prove child molestation in violation of O.C.G.A. § 16-6-4(a)(1) based on evidence that the defendant repeatedly asked the defendant's 14-year old daughter to "massage" the defendant by rotating her clothed buttocks on the defendant's crotch area, that she felt that the defendant's penis was hard, and that the defendant left a white, gooey substance on the back of her shorts. Harris v. State, 333 Ga. App. 118, 775 S.E.2d 602 (2015).
Victim's testimony that the defendant asked the victim to undress in front of the defendant more times than the victim could count and that the defendant touched, kissed, and licked the victim's breasts was sufficient to support the defendant's conviction for child molestation. Reinhard v. State, 331 Ga. App. 235, 770 S.E.2d 314 (2015).
Victim's statements regarding the defendant's actions, along with the recorded police interviews of the defendant in which the defendant admitted to driving the victim to school, that the victim touched the defendant's penis on one occasion, and to laying down with the victim in the victim's bedroom, and the testimony of the victim's mother and the forensic investigator regarding what the victim revealed to them was sufficient to support the defendant's convictions for child molestation. Powell v. State, 335 Ga. App. 565, 782 S.E.2d 468 (2016).
Victim's testimony, the victim's statements to the nurse who examined the victim, and the DNA evidence supported the defendant's conviction for child molestation. Gaines v. State, 339 Ga. App. 527, 792 S.E.2d 466 (2016).
Evidence was sufficient to convict the defendant of rape and child molestation because the defendant lived in a home with various relatives, including the victim, the defendant's 10-year-old cousin; one night, the victim awoke to find the defendant rubbing the victim's vagina with the defendant's hand; a few nights later, the victim awoke to find the defendant penetrating the victim's vagina with the defendant's penis; the penetration occurred against the victim's will; and, after the victim's 2009 outcry, some of the victim's relatives confronted the defendant with the victim's allegations and a journal entry stating that the defendant had sexual intercourse with the victim while the victim was in bed asleep. Jones v. State, 340 Ga. App. 568, 798 S.E.2d 87 (2017).
Evidence showing that when the defendant's niece was 11 years old, the defendant forcibly inserted the defendant's penis into the niece's vagina, placed the defendant's penis on the niece's lips, and ejaculated on the niece's stomach was sufficient for a rational trier of fact to find the essential elements of rape, aggravated child molestation by act of sodomy, and incest between uncle and niece. Jones v. State, 343 Ga. App. 180, 806 S.E.2d 631 (2017), cert. denied, 2018 Ga. LEXIS 319 (Ga. 2018).
Evidence was legally sufficient to support the defendant's convictions for aggravated sexual battery and child molestation because the defendant touched the victim's vagina through and then underneath the victim's clothing at the family home; the defendant took the victim's hand and placed the victim's hand on the defendant's penis at the defendant's apartment; and the defendant put the defendant's hand on the victim's vagina in the defendant's taxi. Gonzales v. State, 345 Ga. App. 334, 812 S.E.2d 638 (2018), cert. denied, 2018 Ga. LEXIS 752 (Ga. 2018).
Evidence of defendant's sexual arousal.
- Defendant's argument that there was no evidence of her sexual arousal was rejected where she had participated in the sex acts themselves, continually and frequently invited the boy to come to her home and business, picked the boy up at his home, permitted the boy to spend the night at her house, had constant and lengthy telephone conversations when apart, bestowed gifts on the boy, and when asked, the boy said that two or three times the defendant "would say it feels good." Branam v. State, 204 Ga. App. 205, 419 S.E.2d 86 (1992).
Although sexual gratification is an element of the crime, it could be inferred from the fact that the defendant exposed himself to a child that he had the intent to arouse or satisfy his sexual desires. Andrew v. State, 216 Ga. App. 427, 454 S.E.2d 542 (1995).
Trial court did not err in denying defendant's motion for directed verdict on the charge of aggravated child molestation, because the evidence was sufficient to allow a jury to find that defendant had the requisite intent for aggravated child molestation, as the fact that defendant expected a drug dealer to give defendant and defendant's child crack cocaine in exchange for their sexual favors did not exclude a finding that the defendant also intended the sexual acts to arouse or satisfy defendant or defendant's sexual desires. Odom v. State, 267 Ga. App. 701, 600 S.E.2d 759 (2004).
Admission of photographs depicting defendant and another male lying on bed kissing each other was harmless error since the admission did not contribute to the verdict in the case. Roose v. State, 182 Ga. App. 748, 356 S.E.2d 675 (1987).
Sexually explicit magazines found at defendant's home were admissible into evidence since the victim identified the magazines as the ones defendant showed the victim prior to molesting the victim. Henson v. State, 182 Ga. App. 617, 356 S.E.2d 556 (1987).
Regardless of whether magazines and tapes found at defendant's home corroborated the victim's testimony, they were admissible to show defendant's "state of mind and lustful disposition." Johnson v. State, 231 Ga. App. 823, 499 S.E.2d 145 (1998).
Sexually explicit material found in defendant's possession was not admissible where it was offered for the purpose of showing defendant's lustful disposition in general and was not linked to the crime charged, that is, sexual contact with a child. Frazier v. State, 241 Ga. App. 125, 524 S.E.2d 768 (1999).
In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant's possession is inadmissible unless it shows defendant's lustful disposition toward the sexual activity with which defendant is charged or defendant's bent of mind to engage in that activity; a videotape showing defendant offering drugs to persons in exchange for oral sex was admissible in defendant prosecution for child molestation and aggravated child molestation where it was used to show defendant's usual course of conduct in procuring sexual activity and where the victim testified that defendant had offered the victim drugs in exchange for oral sex. Mooney v. State, 266 Ga. App. 587, 597 S.E.2d 589 (2004), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019).
Victim's testimony regarding "hurt" did not require medical corroboration.
- In a prosecution for aggravated child molestation, the victim's testimony that it hurt when the defendant molested her with his finger was sufficient to prove physical injury. It was not necessary for her testimony to be corroborated by medical evidence. Baker v. State, 228 Ga. App. 32, 491 S.E.2d 78 (1997).
Defendant's conviction of aggravated child molestation, O.C.G.A. § 16-6-4, was appropriate. The victim's testimony indicating the molestation was painful sufficed to prove the element of physical injury; in such case, medical evidence was not required to corroborate the victim's testimony. Mangham v. State, 291 Ga. App. 696, 662 S.E.2d 789 (2008).
Evidence of uncharged crime properly admitted.
- In a child molestation prosecution under O.C.G.A. § 16-6-4(a), it was not error to admit evidence that the defendant placed the defendant's sexual organ "on" a child's genitals - the act charged in the indictment - simply because that evidence also indicated that some penetration may have occurred or that the defendant also may have touched the child's genitals, which were uncharged crimes as the evidence was relevant to prove the charged crime. Ortiz v. State, 295 Ga. App. 546, 672 S.E.2d 507 (2009), cert. denied, No. S09C0803, 2009 Ga. LEXIS 269 (Ga. 2009).
Evidence of child molestation.
- Evidence that the defendant had gotten on the bed with 13-year-old child, lifted her dress, placed his private parts directly against the skin of the child's thighs and accomplished an orgasm amply supported the verdict that the defendant was guilty of child molestation. Van Pelt v. State, 87 Ga. App. 103, 73 S.E.2d 115 (1952).
Evidence was sufficient to authorize a trier of fact to find proof of appellant's guilt of child molestation beyond a reasonable doubt. Patterson v. State, 212 Ga. App. 257, 441 S.E.2d 414 (1994).
When the seven-year-old victim testified to touching of her vaginal area on several occasions, other witnesses testified to her having told them of this contact, and the state played a video of the victim discussing the facts underlying the charges which corroborated her trial testimony, the evidence was sufficient to sustain a conviction for aggravated child molestation and child molestation. Chastain v. State, 236 Ga. App. 542, 512 S.E.2d 665 (1999).
Eight-year-old girl's testimony that defendant pulled her panties down and tried to put his penis inside her "private part" was sufficient to convict defendant of child molestation under O.C.G.A. § 16-6-4(a), where the police officer who interviewed the girl testified that she specifically referred to her vagina as her "private part." Hayes v. State, 252 Ga. App. 897, 557 S.E.2d 468 (2001).
Child molestation conviction was affirmed upon evidence that defendant twice attempted to penetrate his daughter's anus with his penis; furthermore, her testimony did not require corroboration. Knight v. State, 258 Ga. App. 480, 574 S.E.2d 606 (2002).
Evidence was sufficient to convict the defendant of child molestation, even if much of the evidence was hearsay repetition of the child's out-of-court statements, as the defendant failed to argue that the evidence did not satisfy the reliability criteria set forth in former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820). Brown v. State, 267 Ga. App. 826, 600 S.E.2d 774 (2004).
Defendant's convictions for child molestation, attempted statutory rape, and burglary were supported because: (1) the defendant entered the 14-year-old victim's room through a window, uninvited; (2) the defendant told the victim to push the victim's bed against the door; (3) the defendant removed the victim's underwear and the defendant's own pants and laid on top of the victim, but the victim prevented the defendant from penetrating the victim; (4) the defendant fondled the victim's breasts and touched the victim's nipples; and (5) on a prior occasion, defendant made the victim touch the defendant's genitals with the victim's hand. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Jury could have inferred from defendant's actions in rubbing the genitals of an eight-year-old victim and kissing the victim's face that the defendant acted with intent to arouse or satisfy the defendant's sexual desires; inconsistencies in the victim's testimony did not render the evidence insufficient to support defendant's conviction of child molestation. Duvall v. State, 273 Ga. App. 143, 614 S.E.2d 234 (2005).
Evidence was sufficient to sustain the defendant's convictions for aggravated sodomy and aggravated child molestation where the child testified that the defendant made the child perform oral sex and penetrated the child anally, and the record showed opportunity, consistent allegations by the victim to multiple parties, and deception by the defendant when asked about the charged offenses during a polygraph examination. Guzman v. State, 273 Ga. App. 819, 616 S.E.2d 142 (2005).
Victim's testimony that the defendant, the victim's father, touched the victim's "wrong spot," as recounted to the victim's mother and a program manager during a forensic interview was sufficient to support the defendant's conviction for child molestation. Chitwood v. State, 352 Ga. App. 218, 834 S.E.2d 334 (2019).
Evidence from a defendant's 12-year-old stepdaughter in the form of a statement to police that she felt the defendant pull down her pants and put his penis in her rear end, then felt liquid on her buttocks, while she pretended to remain asleep, was sufficient to convict the defendant of child molestation in violation of O.C.G.A. § 16-6-4(a), although the stepdaughter did not testify to all the details at trial. Hines v. State, 307 Ga. App. 807, 706 S.E.2d 156 (2011).
Because there was sufficient evidence, including the child victims' testimonies, that a defendant had the requisite intent and that he performed oral sex on the child victims, and put his penis in their mouths and on their anuses, the defendant was properly convicted of aggravated child molestation and child molestation under O.C.G.A. § 16-6-4. Sanders v. State, 308 Ga. App. 303, 707 S.E.2d 538 (2011), overruled on other grounds by Washington v. State, 310 Ga. App. 775, 714 S.E.2d 364 (2011).
There was competent evidence to support the defendant's convictions for aggravated child molestation, O.C.G.A. § 16-6-4(c), and child molestation, O.C.G.A. § 16-6-4(a)(1), because the victim's step-uncle and one of the forensic interviewers proffered evidence that the defendant sexually molested the victim pursuant to the former Child Hearsay Act, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820); although the victim testified that the defendant touched the victim in a way that the victim did not like, the victim did not provide any details about those incidents, but both the step-uncle and the forensic interviewer testified that the victim disclosed that the defendant touched the victim's privates with the defendant's hand and the defendant's own privates and forced the victim to place the victim's mouth on the defendant's privates, and the jury resolved any credibility or inconsistency issues against the defendant. Westbrooks v. State, 309 Ga. App. 398, 710 S.E.2d 594 (2011).
Evidence was more than sufficient to support the jury's conclusion that the defendant committed the crimes of kidnapping with bodily injury, aggravated child molestation, aggravated sodomy, child molestation, enticing a child for indecent purposes, and cruelty to children because the state offered significant evidence connecting the defendant to the assault, including the defendant's confession to police, the testimony of the victim's uncle that the defendant was the only individual who fit the victim's description, and evidence that both the defendant and the victim were treated for a sexually transmitted disease. Dunson v. State, 309 Ga. App. 484, 711 S.E.2d 53 (2011), cert. dismissed, No. S15C1215, 2015 Ga. LEXIS 580 (Ga. 2015).
Jury was presented with sufficient evidence to find the defendant guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1) because the testimony of the defendant's former wife regarding what she observed on the night in question, i.e., that the defendant and the victim were asleep together with their underwear pulled down and that she saw what appeared to be fecal matter smeared on the victim's buttocks and the bed sheets, was sufficient for the jury to conclude that the victim's and the defendant's otherwise inexplicable mutual exposure was for the purpose of satisfying the defendant's own sexual desires. DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98 (2011).
Evidence was sufficient to enable a jury to find that the defendant acted with the intent to arouse or satisfy the defendant's own or the victim's sexual desires and that the defendant was guilty beyond a reasonable doubt of child molestation because there was significant inferential evidence of the defendant's intent to arouse the defendant's sexual desires or the sexual desires of the victim. Burke v. State, 316 Ga. App. 386, 729 S.E.2d 531 (2012).
Defendant's admission that the defendant helped the defendant's son hold down the victim as the son penetrated the victim, that the defendant rubbed the defendant's own penis against the victim and ejaculated on the victim, that the defendant put the defendant's hands over the son's as the son choked the victim, that the defendant helped dump the victim's body, and the testimony of the defendant's wife that the defendant helped undress the victim, the defendant put the defendant's mouth on the victim's penis, and the defendant attempted to put the defendant's penis in the victim's anus was sufficient to support defendant's convictions for murder, false imprisonment, two counts of aggravated child molestation, child molestation, cruelty to children in the first degree, concealing the death of another, and tampering with evidence. Edenfield v. State, 293 Ga. 370, 744 S.E.2d 738 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Evidence was sufficient to support the defendant's two convictions for child molestation because the victim's testimony alone could suffice to establish the elements of child molestation; and the victim testified that on one occasion the defendant started rubbing the victim's stomach, and then the defendant moved the defendant's hand down and touched the victim's pubic hair, and that on two other occasions the defendant had touched the victim's breasts, once while hugging the victim while alone in the defendant's bedroom, and once while the defendant was applying suntan lotion to the victim's body. Pratt v. State, 323 Ga. App. 890, 748 S.E.2d 692 (2013).
Evidence was sufficient to convict the defendant of child molestation because the victim testified that the defendant rubbed the defendant's privates against the victim's exposed sexual organ, and the victim's testimony alone could suffice to establish the elements of child molestation. Lockhart v. State, 323 Ga. App. 887, 748 S.E.2d 694 (2013).
Convictions for child molestation and aggravated child molestation were supported by sufficient evidence as the jury was entitled to rely on the victim's prior inconsistent statements and the nurse's observations from the physical examination, to disbelieve the victim's recantation on the stand and the testimony of the victim's mother and sisters, and find that the defendant had sexually abused the victim. Galvan v. State, 330 Ga. App. 589, 768 S.E.2d 773 (2015).
Evidence part of res gestae.
- Although the indictment alleged that the act of aggravated child molestation occurred when defendant "placed his mouth upon the genitalia of [the victim]," the other acts of sodomy were properly admitted as a part of the res gestae of defendant's continued sexual exploitation of the victim. Burton v. State, 212 Ga. App. 100, 441 S.E.2d 470 (1994).
In a child molestation case, because the victim, the defendant's daughter, testified that the defendant had the victim perform oral sex on the defendant during the incident when the defendant exposed the defendant's sexual organ to the victim, the evidence of the oral sex was admissible as part of the res gestae of the crime for which the defendant was charged, despite the fact that the defendant was not charged with the additional crime in the indictment. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014).
Exposure to child constitutes child molestation.
- When the evidence and all inferences therefrom demonstrated that the defendant exposed his penis on three separate occasions to three different female children under the age of 14 years in order to satisfy his own sexual desires, the evidence was sufficient to find defendant guilty of child molestation. Bentley v. State, 179 Ga. App. 287, 346 S.E.2d 98 (1986).
Evidence that defendant exposed his penis to the child victim was alone sufficient for conviction. Bowman v. State, 227 Ga. App. 598, 490 S.E.2d 163 (1997).
Evidence was sufficient to support a conviction for child molestation since the victim observed the defendant put the defendant's hand on the defendant's genitals and begin disrobing, and the defendant acknowledged that the defendant touched the defendant's exposed genitals in the child's presence, though the defendant asserted the defendant was merely adjusting the defendant after using the bathroom; although the evidence showed that the defendant was unsuccessful in an attempt to coax the child to look at the defendant's exposed genitals, the defendant's conduct was rendered no less culpable by the victim's good judgment in turning the victim's head away. Arnold v. State, 249 Ga. App. 156, 545 S.E.2d 312 (2001).
Evidence from the four victims that the defendant on three separate occasions followed the victims home from school, talked to the victims about sex, and exposed himself to the victims, along with evidence of prior similar transactions committed by the defendant in two different states for the limited purpose of showing the defendant's intent, bent of mind, and course of conduct, was sufficient to support the defendant's conviction of four counts of child molestation. Damare v. State, 257 Ga. App. 508, 571 S.E.2d 507 (2002).
Evidence that the 15-year-old victim was between 100 and 200 feet away from defendant's house when the victim saw defendant stand at the window with the defendant's hand on the defendant's genitals and making a jerking motion was sufficient to sustain defendant's conviction for child molestation. Rainey v. State, 261 Ga. App. 888, 584 S.E.2d 13 (2003).
Substantial evidence linked the defendant to a child molestation offense which occurred when a person entered a grocery store bathroom and inserted the person's genital's through a hole in a toilet stall partition while the eight-year-old victim was seated inside, including evidence that the victim, the victim's cousin, and the victim's parent saw the perpetrator leaving the store and heading towards a beer van, evidence that the defendant drove such a van with a beer logo, called at the store as part of the defendant's job, and that the defendant knew about the hole in the bathroom partition, the victim's description of the perpetrator as wearing an electronic device, and a detective's testimony that the defendant wore such a device as part of the defendant's job, the parent's identification of the defendant's shirt as that worn by the perpetrator, and the parent's identification of the defendant at trial; additionally, knowledge of the victim's age was not an element of the crime of child molestation, and the conviction was supported by sufficient evidence including the defendant's admission that the defendant was near the restroom, although the defendant denied entering the restroom, the victim's testimony that the perpetrator entered the bathroom after the victim went in, because the victim heard the door squeak as the door opened, heard footsteps, and this was the only time the victim heard the door open, and photographs showing the close proximity of the beer aisle to the restrooms, as well as photographs showing that the interior of the toilet stall was visible through the approximately 4-inch hole in the partition as well as under the partition, which was 16 or 18 inches from the floor. Bennett v. State, 279 Ga. App. 371, 631 S.E.2d 402 (2006).
Jury could determine that the defendant's genitalia was exposed to the victim, which was sufficient evidence of child molestation, because the victim described the defendant's penis in the forensic interview. Lipscomb v. State, 315 Ga. App. 437, 727 S.E.2d 221 (2012).
Kisses constituted an immoral or indecent act.
- Sufficient evidence supported the defendant's conviction for child molestation based on the victim's testimony and the defendant's admission that the defendant kissed the victim several times because the jury was authorized to conclude that the kisses constituted an immoral or indecent act under O.C.G.A. § 16-6-4(a)(1). Thomas v. State, 324 Ga. App. 26, 748 S.E.2d 509 (2013).
Underwear on backwards as evidence of molestation.
- Jury could infer that the victim's underwear had been removed by the defendant and hurriedly replaced, which was sufficient evidence of child molestation, because the victim's parents testified that before the parents left to run a quick errand, the victim's underwear was on properly, but it was on improperly when the parents returned; in a forensic interview, the victim explained to the interviewer that the defendant removed the victim's underwear and then replaced the underwear. Lipscomb v. State, 315 Ga. App. 437, 727 S.E.2d 221 (2012).
Engaging in sexually explicit conversation with child.
- Crime of child molestation cannot be committed when the only contact between the accused and the alleged victim was by telephone. Vines v. State, 269 Ga. 438, 499 S.E.2d 630 (1998).
Officer lacked arguable probable cause to arrest a suspect because no officer could have believed that a passing comment to a little girl in a park about the color of her panties offended the public's sense of propriety, or was morally and sexually indelicate, improper, and offensive as required for child molestation under O.C.G.A. § 16-6-4(a)(1). Benson v. Facemyer, 657 Fed. Appx. 828 (11th Cir. 2016)(Unpublished).
Watching sexually explicit videotapes with child.
- In a prosecution based on the defendant's forcing a minor to watch sexually explicit videotapes with the defendant, the state was not required to prove that the tapes were "obscene" and "harmful to minors" under definitions pertaining to the distribution of harmful materials to children. Additionally, the defendant's claimed First Amendment right to possess and view the tapes was not a defense. Stroeining v. State, 226 Ga. App. 410, 486 S.E.2d 670 (1997).
An anatomically correct diagram representing the victim's body was relevant evidence and properly admitted into evidence. Pittman v. State, 178 Ga. App. 693, 344 S.E.2d 511 (1986).
Evidence sufficient to find a defendant guilty of child molestation.
- Evidence, including that the defendant attempted to conceal the defendant's behavior by ensuring the victim would be in the defendant's bedroom and stopping when the defendant was interrupted, the defendant's prior conduct, and the victim's unheeded protests, was sufficient to support the defendant's conviction for child molestation. Eubanks v. State, 332 Ga. App. 568, 774 S.E.2d 146 (2015).
Evidence sufficient for conviction.
- See Sprayberry v. State, 174 Ga. App. 574, 330 S.E.2d 731 (1985); Busby v. State, 174 Ga. App. 536, 330 S.E.2d 765 (1985); Kilgore v. State, 177 Ga. App. 656, 340 S.E.2d 640 (1986); Jones v. State, 178 Ga. App. 15, 342 S.E.2d 5 (1986); Beard v. State, 178 Ga. App. 265, 342 S.E.2d 751 (1986); Smith v. State, 178 Ga. App. 300, 342 S.E.2d 769 (1986); Castillo v. State, 178 Ga. App. 312, 342 S.E.2d 782 (1986); Grant v. State, 178 Ga. App. 398, 343 S.E.2d 422 (1986); Ezell v. State, 178 Ga. App. 400, 343 S.E.2d 792 (1986); Crawford v. State, 178 Ga. App. 739, 344 S.E.2d 533 (1986); Peavy v. State, 179 Ga. App. 397, 346 S.E.2d 584 (1986); Bell v. State, 180 Ga. App. 170, 348 S.E.2d 712 (1986); White v. State, 180 Ga. App. 185, 348 S.E.2d 728 (1986); Newsome v. State, 180 Ga. App. 243, 348 S.E.2d 759 (1986); Hall v. State, 181 Ga. App. 92, 351 S.E.2d 236 (1986); Johns v. State, 181 Ga. App. 510, 352 S.E.2d 826 (1987); Crump v. State, 183 Ga. App. 43, 357 S.E.2d 863 (1987); In re J.B., 183 Ga. App. 229, 358 S.E.2d 620 (1987); Patten v. State, 184 Ga. App. 152, 361 S.E.2d 203 (1987); Adams v. State, 186 Ga. App. 599, 367 S.E.2d 871 (1988); Westbrook v. State, 186 Ga. App. 493, 368 S.E.2d 131, cert. denied, 186 Ga. App. 919, 368 S.E.2d 131 (1988); Ward v. State, 186 Ga. App. 503, 368 S.E.2d 139 (1988); Weeks v. State, 187 Ga. App. 307, 370 S.E.2d 344 (1988); Johncox v. State, 189 Ga. App. 188, 375 S.E.2d 139 (1988); Burgess v. State, 189 Ga. App. 790, 377 S.E.2d 543 (1989); Blanton v. State, 191 Ga. App. 454, 382 S.E.2d 133 (1989); Howard v. State, 191 Ga. App. 408, 382 S.E.2d 149 (1989); Gilbert v. State, 191 Ga. App. 574, 382 S.E.2d 630, cert. denied, 191 Ga. App. 922, 382 S.E.2d 630 (1989); McCormick v. State, 228 Ga. App. 467, 491 S.E.2d 903 (1997); Goss v. State, 228 Ga. App. 411, 491 S.E.2d 859 (1997); Watson v. State, 230 Ga. App. 79, 495 S.E.2d 305 (1998); Wilson v. State, 230 Ga. App. 195, 496 S.E.2d 746 (1998); Wand v. State, 230 Ga. App. 460, 496 S.E.2d 771 (1998), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Duncan v. State, 232 Ga. App. 157, 500 S.E.2d 603 (1998); Fields v. State, 233 Ga. App. 609, 504 S.E.2d 777 (1998); Burrage v. State, 234 Ga. App. 814, 508 S.E.2d 190 (1998); Osborne v. State, 239 Ga. App. 308, 521 S.E.2d 226 (1999), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020); Griffin v. State, 240 Ga. App. 494, 523 S.E.2d 910 (1999); Akins v. State, 241 Ga. App. 120, 526 S.E.2d 157 (1999); Vasquez v. State, 241 Ga. App. 512, 527 S.E.2d 235 (1999); Baker v. State, 241 Ga. App. 666, 527 S.E.2d 266 (1999); Brinson v. State, 243 Ga. App. 50, 530 S.E.2d 798 (2000), recons. denied, overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020); In the Interest of J.D., 243 Ga. App. 644, 534 S.E.2d 112 (2000); Wyatt v. State, 243 Ga. App. 882, 534 S.E.2d 431 (2000); Woods v. State, 244 Ga. App. 359, 535 S.E.2d 524 (2000); Sewell v. State, 244 Ga. App. 449, 536 S.E.2d 173 (2000); McCorkle v. State, 245 Ga. App. 505, 538 S.E.2d 161 (2000); Jones v. State, 247 Ga. App. 43, 543 S.E.2d 72 (2000); Millsap v. State, 247 Ga. App. 623, 544 S.E.2d 530 (2001); Brownlow v. State, 248 Ga. App. 366, 544 S.E.2d 474 (2001); In the Interest of J.R., 248 Ga. App. 333, 546 S.E.2d 67 (2001); Seidenfaden v. State, 249 Ga. App. 314, 547 S.E.2d 578 (2001); Frady v. State, 245 Ga. App. 832, 538 S.E.2d 893 (2000); Honeycutt v. State, 245 Ga. App. 819, 538 S.E.2d 870 (2000); Jowers v. State, 245 Ga. App. 773, 538 S.E.2d 853 (2000); Robinson v. State, 272 Ga. 752, 533 S.E.2d 718 (2000); Greulich v. State, 263 Ga. App. 552, 588 S.E.2d 450 (2003); McMillian v. State, 263 Ga. App. 782, 589 S.E.2d 335 (2003); Blevins v. State, 270 Ga. App. 388, 606 S.E.2d 624 (2004); Watson v. State, 299 Ga. App. 702, 683 S.E.2d 665 (2009); Bazin v. State, 299 Ga. App. 875, 683 S.E.2d 917 (2009).
Evidence was sufficient to convict the defendant of two counts of child molestation as, prior to the rape, the defendant pulled down the victim's pants, raised the victim's shirt, kissed the victim's chest area, and touched the victim's vagina with the defendant's hand. Nguyen v. State, 351 Ga. App. 509, 831 S.E.2d 213 (2019), cert. dismissed, No. S20C0488, 2020 Ga. LEXIS 402 (Ga. 2020).
Evidence was sufficient to convict the defendant of aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes because two of the victims were nine years old at the time of their outcries and the third victim was eight years old at the time of that victim's outcry; the defendant's mother occasionally watched the victims while their father was at work, sometimes over night; the defendant would bring the victims into the defendant's bedroom, where the defendant would force the children to perform oral sex upon the defendant and anally penetrated the children with the defendant's sex organ; and the defendant threatened to hurt the children if the children told anyone about the abuse. Stodghill v. State, 351 Ga. App. 744, 832 S.E.2d 891 (2019).
Testimony from the victim's mother that the victim disclosed that the defendant had put the defendant's hands in the front and rear, that it had hurt, and that the defendant had told the victim they could not go home until her smell on the defendant's hands went away was sufficient for a rational trier of fact to find that the defendant committed child molestation and sexual battery. Hogg v. State, Ga. App. , 846 S.E.2d 183 (2020).
Victimized by stepparent.
- There was sufficient evidence from which the jury could find beyond a reasonable doubt that the defendant had intercourse repeatedly with his 11-year-old stepdaughter (Count 1) and had committed an act of sodomy on her (Count 2) thereby authorizing a conviction of two counts of child molestation. Pegg v. State, 183 Ga. App. 668, 359 S.E.2d 678 (1987).
Evidence was sufficient to support the conviction of the defendant for molestation of his 14 year old daughter given the number of incidents, the defendant's act of soon thereafter masturbating, his warning to his daughter to keep the incidents quiet, and his statement to an investigator that he touched his daughter in order to determine if she had been the victim of sexual abuse by another man. McEntyre v. State, 247 Ga. App. 881, 545 S.E.2d 391 (2001).
Evidence was sufficient to support the conviction of defendant for aggravated child molestation under O.C.G.A. § 16-6-4(a) and one count of child molestation under O.C.G.A. § 16-6-4(c). Baker v. State, 252 Ga. App. 238, 555 S.E.2d 899 (2001).
Evidence that defendant masturbated in front of three victims, all under the age of 16, for defendant's own sexual gratification and that defendant fondled them or forced them to perform sex acts on him was sufficient to support the convictions against defendant for child molestation. Goins v. State, 257 Ga. App. 406, 571 S.E.2d 195 (2002).
Trial court's admission of recall evidence that defendant threatened a witness, a neighbor of the victims, when defendant was leaving the stand was not error; even if the admission of the recall testimony was in error, it was harmless as the evidence was overwhelming to support a conviction for child molestation, burglary, and criminal trespass since: (1) two victims and one mother of a victim, all with a sufficient opportunity to observe defendant, identified defendant in a pre-trial photographic lineup and at trial; (2) the neighbor also identified defendant; (3) a victim and the neighbor knew defendant by first name preceding the incident; (4) a victim and the neighbor noticed defendant wearing the clothes discovered in a victim's home the night of the incident; and (5) the state presented evidence that defendant had committed similar acts previously. Rubi v. State, 258 Ga. App. 815, 575 S.E.2d 719 (2002).
Sufficient evidence supported defendant's conviction on two counts of aggravated child molestation, as it was enough for a rational trier of fact to find defendant guilty beyond a reasonable doubt of having had the child victim perform sex acts on defendant's genitals with the victim's mouth and having performed sex acts on the child victim's vagina with defendant's mouth. Smith v. State, 259 Ga. App. 736, 578 S.E.2d 295 (2003).
Evidence supported the jury's decision rejecting defendant's claims of accident or mistake and a lack of criminal intent and supported defendant's child molestation conviction. Black v. State, 261 Ga. App. 263, 582 S.E.2d 213 (2003).
Evidence was sufficient to support defendant's convictions on two counts of child molestation, where defendant engaged in sexual activity with a minor. Dowd v. State, 261 Ga. App. 306, 582 S.E.2d 235 (2003).
Testimony by the detective and the child that the child had recounted occasions on which defendant put the defendant's hands on the victim's genitals and other private parts, and that defendant had woken the victim up once by poking the defendant's private parts in the victim's behind, was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of child molestation by inserting an unknown object in the victim's rectum. Mayo v. State, 261 Ga. App. 314, 582 S.E.2d 482 (2003).
Victim's testimony that the victim had sexual intercourse with defendant, that the defendant placed the defendant's finger in the victim's genitals, placed the defendant's hand on the victim's genitals, placed the defendant's mouth on the victim's breast, and placed the defendant's mouth on the victim's mouth, established the offenses of aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2, incest pursuant to O.C.G.A. § 16-6-22, and child molestation. Falak v. State, 261 Ga. App. 404, 583 S.E.2d 146 (2003).
Evidence that defendant touched the victim inappropriately showed that the jury could have concluded that defendant was guilty of child molestation. Frazier v. State, 261 Ga. App. 508, 583 S.E.2d 188 (2003).
Conviction for child molestation by making a child touch defendant's genitals was upheld where force was shown through the victim's testimony that defendant was mean to the victim and the victim's siblings, kicked them, hit them in the head, and yelled a lot. Branesky v. State, 262 Ga. App. 33, 584 S.E.2d 669 (2003).
Evidence was sufficient to support a child molestation conviction when the defendant's eight year old stepchild testified that the defendant "put his private in my private," that the defendant moved the defendant's body while inside the child, that the defendant hurt the victim's "private," where the victim circled the appropriate places on anatomically correct drawings which were admitted into evidence, testified that defendant put the defendant's "private" in the victim's mouth on more than one occasion, where eventually the victim told the victim's parent, the victim's babysitter, and the victim's doctor about these events, and where a physical examination revealed redness and swelling around the victim's genitals, which, the physician testified, could have been caused by trauma. Torres v. State, 262 Ga. App. 309, 585 S.E.2d 228 (2003).
Although the defendant's stepchild and the child's friend had not reported the defendant's sexual acts involving them during an earlier welfare investigation and the stepchild only told of the sexual acts after the child's parent refused to let the child move in with the child's other biological parent, such went to the childrens' credibility, which was for the jury to determine, and the evidence was sufficient to support the defendant's conviction for child molestation and statutory rape. Williams v. State, 263 Ga. App. 22, 587 S.E.2d 187 (2003).
After a 12-year-old child told the child's parent that defendant had just raped the child; hours after the alleged rape, a detective found defendant's checkbook in the abandoned house where the victim said the rape occurred, and a check had been written from the checkbook earlier that day; and a doctor who examined the victim within hours of the incident found abrasions and tenderness consistent with the victim's description of what had occurred, the appellate court found the evidence sufficient to support defendant's convictions of rape, statutory rape, aggravated child molestation, and child molestation. Weathersby v. State, 263 Ga. App. 341, 587 S.E.2d 836 (2003).
Evidence was sufficient to find defendant guilty of child molestation even when the evidence consisted primarily of the victim's testimony and the statements of the victim's sibling; the testimony of a single witness was generally sufficient to establish a fact, and the jury clearly resolved the conflicts against defendant. McGhee v. State, 263 Ga. App. 762, 589 S.E.2d 333 (2003).
Trial court correctly allowed three adults to testify about out-of-court statements which a four-year-old child made to them even though the child was unresponsive when the child was asked questions in court, and the appellate court found that the child's statements alleging that defendant placed the defendant's finger inside the child's genitals, when considered with evidence that the child had gonorrhea, and similar transaction evidence that defendant molested the defendant's own child, was sufficient to sustain the defendant's convictions for child molestation and aggravated sexual battery. Bell v. State, 263 Ga. App. 894, 589 S.E.2d 653 (2003).
Victim's testimony, which was supported by statements the victim made to family, friends, and investigators regarding sexual acts the defendant committed upon the victim, together with the medical findings of the pediatrician who examined the victim were completely consistent with the victim's allegation of abuse by sexual intercourse; therefore, the evidence was more than sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of child molestation and aggravated child molestation. Wilkins v. State, 264 Ga. App. 524, 591 S.E.2d 445 (2003).
Evidence was sufficient to overcome defendant's assertion that the defendant had no sexual contact with the 15 year old victim where: (1) defendant offered the 15-year-old victim a ride to the victim's house, but instead took the victim to the defendant's own home; (2) the victim was able to describe certain peculiarities of defendant's genitals and pubic area; (3) the jury was shown pictures that conformed to the victim's description; and (4) similar transaction evidence was introduced where a previous victim testified that defendant had sexually assaulted the victim in the victim's car after the victim gave the defendant a ride to the defendant's house. Taylor v. State, 264 Ga. App. 665, 592 S.E.2d 148 (2003).
Defendant's child's testimony on retrial that defendant had repeatedly touched child's breasts and genitals with defendant's hands, and that on one occasion defendant had touched child's genitals with defendant's mouth, was sufficient evidence to support defendant's convictions. Putnam v. State, 264 Ga. App. 810, 592 S.E.2d 462 (2003).
Child molestation and aggravated child molestation, in violation of O.C.G.A. § 16-6-4(a) and (c), respectively, were upheld based upon the evidence presented from the victim that defendant placed the defendant's finger into the victim's genitals and moved it around, causing the victim physical harm, and by touching the defendant's genitals on the victim's genitals; evidence of prior false accusations made by the victim, and a later recantation by the victim, did not render the evidence insufficient. Cheek v. State, 265 Ga. App. 15, 593 S.E.2d 55 (2003).
Child molestation and aggravated child molestation convictions were upheld where the trial court properly denied a defense motion for a continuance, fashioned an alternative remedy allowing defendant access to an alleged similar transaction witness' statement, and limited the state's ability to challenge it, and defendant failed to prove that defendant's trial counsel was ineffective. Joiner v. State, 265 Ga. App. 395, 593 S.E.2d 936 (2004).
Evidence was sufficient to convict defendant of sexual battery and child molestation, even though the defendant was acquitted of rape, where the 13-year old victim testified that the defendant pulled off the victim's shorts and forced the defendant's genitals into the victim's genitals despite the victim's protests. The jury was entitled to believe the victim's testimony in whole or in part, and it could have concluded that the defendant placed the defendant's genitals on the victim's genitals (as alleged in the child molestation indictment), but that no penetration occurred, so there was no rape. Dorsey v. State, 265 Ga. App. 597, 595 S.E.2d 106 (2004).
Evidence supporting the finding that defendant penetrated the victim's genitals, causing physical injury, was sufficient to sustain convictions for child molestation and aggravated child molestation. Sailor v. State, 265 Ga. App. 645, 595 S.E.2d 335 (2004).
Aggravated child molestation, child molestation, enticing a child for indecent purposes, and aggravated sodomy convictions were all supported by sufficient evidence provided by the victims detailing the inappropriate touching and anal penetration committed by defendant, and confirmed by the examining experts. Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004).
Evidence was sufficient to support defendant's conviction of child molestation where: (1) the victim testified that defendant inappropriately touched the victim, and showed the victim rented and "homemade" pornographic movies to teach the victim about sex; (2) a social services worker testified that the child drew the body parts defendant touched on a "gingerbread drawing," and said that defendant and defendant's love interest acted out what was on the pornographic videos in front of the child; (3) a psychologist testified that the evaluation of the child was consistent with possible sexual abuse; and (4) an investigator testified that defendant, in a signed statement, admitted the inappropriate touching and showing of the pornographic movies to the child. Brown v. State, 267 Ga. App. 826, 600 S.E.2d 774 (2004).
Evidence was sufficient to sustain a child molestation conviction when the seven-year-old child of the defendant's step-sibling testified that the defendant came into the victim's room while the victim was sleeping, pulled down the victim's underwear, and rubbed soap on the victim's genitals, where the victim also told police in a prior statement that the victim thought that the defendant put the defendant's finger inside the victim's genitals, where the victim described the incident to the victim's parent, the victim's grandparent, and later a social worker in a taped interview, and where, when the parent first confronted the defendant, the defendant acted nonchalantly in the face of the accusations, rather than being surprised or defensive. Holloway v. State, 268 Ga. App. 300, 601 S.E.2d 753 (2004).
Evidence was sufficient to support child molestation convictions where the child's parent found defendant, naked, with the child's head in the defendant's lap, and in testimony and taped interviews played at trial, the 10-year-old child victim said that defendant, inter alia, had the victim place the victim's hand on the defendant's genitals, tried to put the defendant's genitals in the victim's "privates" while they were clothed, held the victim and moved the victim up and down the defendant's body between the defendant's legs, and tried to put the defendant's genitals in the victim's mouth. Duncan v. State, 269 Ga. App. 4, 602 S.E.2d 908 (2004).
Convictions of child molestation and aggravated child molestation were affirmed where the four-year-old child victim told several people that defendant had touched or inserted defendant's fingers in the child's genitals, and a doctor's examination found indications that someone inserted their fingers into the victim's genitals. Howard v. State, 268 Ga. App. 558, 602 S.E.2d 295 (2004).
Evidence that the defendant bathed a victim without the victim's parent's knowledge, photographed the victim in the nude without the parent's knowledge, masturbated with a victim's underwear, and placed nude photos of the victim between pages of a pornographic magazine was sufficient to support a child molestation conviction. Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520 (2004).
When a victim testified that defendant locked the victim in the defendant's bedroom, threw the victim onto the defendant's bed, placed the defendant's genitals on the victim's "bottom," and made "moving" motions, and told a police officer, who testified, that defendant grabbed the victim's buttocks immediately before this incident, and a nurse testified that a medical examination of the victim revealed injuries consistent with the victim's allegations, the evidence was sufficient to allow a jury to find defendant guilty beyond a reasonable doubt of both aggravated child molestation, as to the first incident, and child molestation, as to grabbing the victim's buttocks, and further allowed the jury to find that defendant committed these acts for the defendant's own sexual arousal. Payne v. State, 269 Ga. App. 662, 605 S.E.2d 75 (2004).
Sufficient evidence, including testimony from the child victim identifying defendant's vehicle, evidence of defendant's DNA matching that of the victim and expert testimony that the frequency of such occurrence was approximately one in two billion in the Caucasian population, and similar transaction evidence, supported defendant's kidnapping with bodily injury, rape, aggravated sodomy, aggravated child molestation, aggravated assault, and first-degree cruelty to children convictions. Morita v. State, 270 Ga. App. 372, 606 S.E.2d 595 (2004).
Evidence was sufficient to support defendant's conviction for aggravated child molestation, which involved an act of sodomy, by placing the defendant's genitals in the victim's anus because the victim testified that the defendant "put the defendant's private in [the victim's] butt." Neal v. State, 271 Ga. App. 283, 609 S.E.2d 204 (2005).
Evidence was sufficient to support defendant's convictions for child molestation by touching the victim's genitals with the defendant's hand because the victim testified that defendant pulled down the victim's underwear and touched the victim between the victim's legs in the victim's "private area" with the defendant's mouth, genitals, and finger. Neal v. State, 271 Ga. App. 283, 609 S.E.2d 204 (2005).
Evidence was sufficient to support defendant's convictions for child molestation by touching a child's anus with defendant's genitals because the child testified that defendant "put his private in [the child's] butt." Neal v. State, 271 Ga. App. 283, 609 S.E.2d 204 (2005).
Evidence was sufficient to support defendant's convictions for child molestation by causing a child to touch the defendant's genitals because the child testified that defendant told the child to touch the defendant's genitals and placed the child's hand on it. Neal v. State, 271 Ga. App. 283, 609 S.E.2d 204 (2005).
Evidence was sufficient to support defendant's convictions for child molestation by causing a child to touch defendant's genitals because a child testified that defendant made the child touch [defendant's] "private." Neal v. State, 271 Ga. App. 283, 609 S.E.2d 204 (2005).
Victim's testimony that the defendant touched the victim's genitals, alone, supported the defendant's conviction for child molestation; further, the victim's testimony was corroborated by the victim's outcry and by physical evidence of molestation. Howse v. State, 273 Ga. App. 252, 614 S.E.2d 869 (2005).
There was sufficient evidence to support the defendant's convictions for child molestation, aggravated child molestation, statutory rape, and incest, in violation of O.C.G.A. §§ 16-6-4,16-6-4(c),16-6-3, and16-6-22, respectively, because the defendant's step-child gave detailed testimony as to the continuing sexual conduct that the defendant inflicted on the child over a period of years, as the testimony from just that witness was sufficient to support the convictions, pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8); further, there was corroborative testimony from a friend of the step-child who witnessed at least one incident, and from an aunt who testified that the older step-child had sat in defendant's lap and that the defendant rubbed the older step-child's legs, which was properly admitted for purposes of corroboration, bent of mind, lustful disposition toward children, and motive. Lewis v. State, 275 Ga. App. 41, 619 S.E.2d 699 (2005).
Defendant's conviction of child molestation, O.C.G.A. § 16-6-4(a), was supported by sufficient evidence, based on testimony by the child, who was under the age of 16 and was the defendant's step-child, that the defendant had fondled the child's breast, and other testimony offered at trial. Lugo v. State, 275 Ga. App. 354, 620 S.E.2d 591 (2005).
Evidence supported the defendant's conviction for aggravated child molestation and aggravated sexual battery because: (1) the 11-year-old victim testified that the defendant put the defendant's hand on the victim's private part, put the defendant's finger in the victim's private part, put the defendant's mouth on the victim's private part, and put the victim's mouth on the defendant's private part, and that when the victim put the victim's mouth on the defendant's private part, "he came, whatever you call it;" (2) when the prosecutor asked the victim whether by that the victim meant that "stuff came out of his private part," the victim responded yes; and (3) in a videotaped pretrial interview, the victim explained that the victim was using the term "private part" to mean penis or vagina. Maddox v. State, 275 Ga. App. 869, 622 S.E.2d 80 (2005).
Child victim's testimony and corroboration testimony by "outcry" witnesses were sufficient to find defendant guilty of child molestation under O.C.G.A. § 16-6-4(a). Rosser v. State, 276 Ga. App. 261, 623 S.E.2d 142 (2005).
Evidence supported a conviction for child molestation where: (1) the victim testified that the defendant touched the victim's genitals from the outside of the victim's clothing while the victim sat in front of the defendant on a four-wheeler; (2) another child testified that the defendant touched the child the same day; and (3) the jury did not believe the defendant's explanation that if the touching occurred, it was accidental. Collins v. State, 276 Ga. App. 358, 623 S.E.2d 192 (2005).
Evidence supported the defendant's conviction of child molestation and criminal attempt to commit child molestation because: (1) the nine-year-old victim testified that, on multiple occasions, the defendant fondled the victim's breasts and private parts; (2) the victim further testified that the defendant attempted to have the victim touch the defendant's genitals; and (3) the victim initially informed the victim's parent of the defendant's actions and shortly thereafter repeated the details of the incidents to a therapist and two child services agency case workers. Cook v. State, 276 Ga. App. 803, 625 S.E.2d 83 (2005).
Thirteen-year-old victim's testimony that when the victim was sleeping, defendant pulled down the victim's pants and underwear and performed oral sex on the victim, and that testimony was corroborated by defendant's love interest who observed the incident, was sufficient evidence to support defendant's conviction for aggravated child molestation, in violation of O.C.G.A. § 16-6-4(c), as there was sufficient evidence to establish that defendant committed "sodomy," as that term was defined under O.C.G.A. § 16-6-2(a); accordingly, the trial court properly denied defendant's motion for a judgment of acquittal pursuant to O.C.G.A. § 17-9-1. Steverson v. State, 276 Ga. App. 876, 625 S.E.2d 476 (2005).
Defendant's kissing of the eight-year-old victim and performance of oral sex on the victim, which was observed by the victim's parent upon the parent's return to the defendant's residence, was sufficient evidence to support a conviction for aggravated child molestation. Hines v. State, 277 Ga. App. 404, 626 S.E.2d 601 (2006).
Evidence was sufficient to support a conviction for aggravated child molestation, in violation of O.C.G.A. § 16-6-4(a) and (c), which was based on an act of sodomy, as whether the defendant's conduct in touching the victim's genitals with the defendant's mouth was an immoral or indecent act performed with the intent to arouse or satisfy the defendant's or the victim's sexual desires was a question within the jury's province. Lester v. State, 278 Ga. App. 247, 628 S.E.2d 674 (2006).
Evidence was sufficient to support a conviction for aggravated child molestation under O.C.G.A. § 16-6-4 because the three-year-old victim reported the abuse to numerous adults; testified at trial that the defendant touched the victim's private area with the defendant's finger, that the defendant would not stop when the victim asked the defendant to do so, and that the touching hurt; and the medical evidence showed that the victim had sustained an injury consistent with molestation. Iles v. State, 278 Ga. App. 895, 630 S.E.2d 148 (2006).
Defendant's conviction for child molestation was supported by sufficient evidence, including the testimony of the child victim, the defendant's stepchild, who was in the seventh grade at the time of trial, that the defendant molested the child when the child was in the third, fourth and fifth grades, that in the most recent incident, the defendant called the child into the defendant's bedroom and told the child they were going to have sex, that the child said they were not, and left the room, that the defendant went into the child's bedroom and wrestled with the child until they fell onto the bed, that the defendant pulled the child's clothing off and tried to insert the defendant's genitals into the child's genitals, but was only partially able to do so, and that there were other incidents in which the defendant had sex with the child or inserted the defendant's finger into the child's genitals; additionally, a doctor concluded that the child's injuries were consistent with partial penetration of the genitals, the child reported the most recent incident to a teacher, a social worker, and a police officer, and the child's videotaped statement was admitted into evidence. Harris v. State, 279 Ga. App. 241, 630 S.E.2d 853 (2006).
Evidence was sufficient to support a conviction of aggravated child molestation since the child victim testified that when the child was five-years-old, defendant "put his private in my mouth and peed in it, and made me swallow it," since, among other witnesses, the child's father and stepmother testified about what the child told them about the incident, since a detective testified about an interview with the child about the incident, and since the state introduced a videotape of the interview into evidence and played it to the jury. Tyler v. State, 279 Ga. App. 809, 632 S.E.2d 716 (2006), cert. denied, No. S06C1818, 2006 Ga. LEXIS 810 (Ga. 2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Defendant's child molestation convictions were upheld on appeal as: (1) sufficient evidence presented by the victims and investigating witnesses, despite defendant's contrary testimony, supported the convictions; (2) sufficient similarities in the two charges supported their joinder for trial; and (3) no abuse of discretion resulted from the admission of two videotaped interviews of both victims. Milton v. State, 280 Ga. App. 179, 633 S.E.2d 606 (2006).
Evidence supported a defendant's conviction for child molestation as: (1) the victim testified that the defendant touched the victim on the victim's "private part"; (2) the victim reported the abuse to the victim's parent and the police; (3) any discrepancies in the victim's statements or contradictions in the evidence presented credibility questions for the jury to resolve; (4) Georgia law did not require corroboration of a child molestation victim's testimony; and (5) given that the allegations did not include penetration, the lack of medical evidence to corroborate the victim's molestation was not exculpatory. Tadic v. State, 281 Ga. App. 58, 635 S.E.2d 356 (2006).
There was sufficient evidence to support a defendant's convictions for rape, incest, statutory rape, and child molestation against one of the defendant's children and a stepchild based on the defendant's repeated engagement in sexual intercourse with the children at various times while one was 12 to 16 years old and the other was 16 to 19 years old, and evidence of a letter threatening suicide on the defendant's part and apologizing for the actions against the children was also introduced against the defendant. However, the conviction on the charge of aggravated sexual battery against the stepchild was in error and required reversal since the state failed to introduce direct or circumstantial evidence sufficient to prove beyond a reasonable doubt that the defendant violated O.C.G.A. § 16-6-22.2 by penetrating that child's sexual organ with a replica penis. Connelly v. State, 295 Ga. App. 765, 673 S.E.2d 274 (2009), cert. denied, No. S09C0892, 2009 Ga. LEXIS 260 (Ga. 2009).
There was sufficient evidence to support the defendant's conviction for aggravated child molestation in violation of O.C.G.A. § 16-6-4(c) based on the 11-year-old victim's testimony regarding the defendant's actions while the victim was sleeping over at the victim's aunt's home; the defendant's claim that the defendant did not molest the victim was within the jury's credibility evaluation. Lucas v. State, 295 Ga. App. 831, 673 S.E.2d 309 (2009).
Evidence was sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of child molestation. A child testified at trial that the defendant touched the child "in the private" with the defendant's hand and with a towel after the child told the defendant that the child was itching; the child told the defendant to stop, but the defendant refused. Pareja v. State, 295 Ga. App. 871, 673 S.E.2d 343, aff'd, 286 Ga. 117, 686 S.E.2d 232 (2009).
Sufficient evidence existed to convict a defendant of child molestation under O.C.G.A. § 16-6-4(a) because a jury could infer that the defendant had open and intentional sexual intercourse with the minor victim's father in the presence of the victim based on the testimony of the victim that, while the father, who was nude, was performing oral sex on the victim, the defendant, who was not wearing shorts or underwear, came into the bedroom, got on top of the father, and moved up and down. Mote v. State, 297 Ga. App. 13, 676 S.E.2d 379 (2009).
Sufficient evidence existed to support a defendant's convictions for incest and child molestation with regard to actions the defendant took toward the defendant's own children based on the children's recorded police interviews that were played for the jury; the testimony from a licensed clinical social worker who was admitted as an expert in child sexual abuse and the abuse's effect on children; and the testimony of the pediatric nurse practitioner who examined the victims and stated that, although the victims' physical exams were normal, the results were consistent with their reports of sexual abuse. The victims' testimony, standing alone, would have been sufficient to support the convictions; therefore, the trial court did not err by denying the defendant's motion for a directed verdict. Hubert v. State, 297 Ga. App. 71, 676 S.E.2d 436 (2009).
Sufficient evidence supported a defendant's convictions for aggravated child molestation under O.C.G.A. § 16-6-4(c) and three counts of child molestation under O.C.G.A. § 16-6-4(a) because the 13-year-old victim testified that, after repeatedly injecting the victim with methamphetamine, the defendant engaged in various sexual acts with the victim, including fondling the victim's breasts and engaging in intercourse; the defendant's roommate testified that the roommate saw the victim perform oral sex on the defendant. Moe v. State, 297 Ga. App. 270, 676 S.E.2d 887 (2009).
Evidence was sufficient to support convictions of child molestation, O.C.G.A. § 16-6-4(a), aggravated child molestation, O.C.G.A. § 16-6-4(c), and sodomy, O.C.G.A. § 16-6-2, because, in addition to the victim's testimony that the defendant had engaged in sexual intercourse and sodomy with the victim, there was physical evidence that supported the victim's testimony that the victim had been abused; the jury was authorized to believe the testimony of the victim as well as the expert witness who testified on behalf of the state. Roberts v. State, 297 Ga. App. 672, 678 S.E.2d 137 (2009).
Trial court properly denied a defendant's motion for a new trial and convicted the defendant on one count of child molestation with regard to the defendant's conduct of allowing an adult to have sexual intercourse with a 15-year-old victim at the defendant's home as the defendant failed to meet the burden of establishing ineffective assistance of counsel. Carrie v. State, 298 Ga. App. 55, 679 S.E.2d 30 (2009).
Convictions of aggravated child molestation, O.C.G.A. § 16-6-4(c), and child molestation, O.C.G.A. § 16-6-4(a), were supported by sufficient evidence under circumstances in which the nine-year-old victim testified that the defendant inserted the defendant's penis into the victim's vagina and bottom on more than one occasion, that the defendant also touched the victim's vagina, bottom, and breasts with the defendant's hands, the victim's breasts with the defendant's tongue, and, while in the victim's presence, touched the defendant's own penis with the defendant's hands; the victim made similar allegations to the detective who investigated the case, describing sexual acts performed by the defendant and stating that the defendant "would shake" or "choke" the defendant's penis in the victim's presence. A medical examination of the victim's anus revealed trauma consistent with recent penetration and the victim's 13-year old brother testified that the brother caught the defendant unzipping the defendant's pants near the victim, who was on hands and knees on the floor, naked from the waist down. Garduno v. State, 299 Ga. App. 32, 682 S.E.2d 145 (2009).
Whether the defendant's conduct in putting the defendant's private part in a child's face was an immoral or indecent act performed with the intent to arouse or satisfy the defendant's sexual desires was a question for the jury. Therefore, the evidence was sufficient to convict the defendant of child molestation. Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009).
Sufficient evidence supported the defendant's conviction for child molestation based on the testimony of the 19-year-old victim, defendant's daughter, that the defendant entered the victim's bedroom and touched the victim's vagina as well as evidence that the defendant committed similar acts upon two stepdaughters. Riddick v. State, 320 Ga. App. 500, 740 S.E.2d 244 (2013).
Stepdaughter's testimony regarding the sexual abuse, the stepdaughter's recorded forensic interview, and the testimony of the second grade teacher, the school counselor, and the child protective services investigator about the stepdaughter's disclosures of abuse to them authorized the jury to find the defendant guilty beyond a reasonable doubt of child molestation and related offenses. Ramirez v. State, 345 Ga. App. 611, 814 S.E.2d 751 (2018).
Evidence was sufficient to support the defendant's conviction of child molestation because the victim testified that the defendant touched the victim in a way that the victim did not like and the victim and the defendant had a secret, the victim's mother testified that the victim demonstrated to the mother what the defendant did and described in detail what the defendant looked like naked, and during a forensic interview the victim stated that the defendant laid on the victim and bounced up and down. Love v. State, 349 Ga. App. 741, 824 S.E.2d 745 (2019).
Pregnancy supported conviction for aggravated child molestation.
- Evidence was sufficient to support the defendant's conviction for aggravated child molestation as the victim was physically injured by the molestation because a full-term pregnancy involved at least some impairment of the victim's physical condition; and there was evidence that the victim experienced pain during the two-day labor and delivery process. Kendrick v. State, 331 Ga. App. 682, 769 S.E.2d 621 (2015).
Evidence was sufficient to convict the defendant of three counts of child molestation, two counts of aggravated child molestation, and aggravated sexual battery because the abuse included the defendant fondling the victim's vagina and breasts, performing oral sex on the victim and forcing the victim to do the same to the defendant, and digitally penetrating the victim's vagina; after the defendant's wife and the victim's mother began traveling with the state fair, leaving the defendant and the victim living alone together for months at a time, the defendant began regularly having sexual intercourse with the victim; the victim finally disclosed the defendant's abuse to the victim's legal guardian; and the victim testified about the abuse. Brown v. State, 336 Ga. App. 428, 785 S.E.2d 84 (2016).
Evidence was sufficient to convict the defendant of seven counts of child molestation because the victim testified that the defendant made the victim touch the defendant's penis on multiple occasions and that the defendant touched the victim's private parts in numerous ways on multiple occasions. Hunt v. State, 336 Ga. App. 821, 783 S.E.2d 456 (2016).
Evidence was sufficient to convict the defendant of child molestation, in which the defendant was alleged to have masturbated in front of the 13-year-old victim because, although the victim testified that the victim closed the victim's eyes, it was not necessary for the victim to actually see the defendant masturbate so long as that act occurred in the victim's presence; and there was evidence from which the jury could infer that the defendant masturbated in the victim's presence as the victim testified that, immediately before the victim closed the victim's eyes, the defendant pulled the defendant's pants down, took out the defendant's sexual organ, and told the victim that the defendant would show the victim how to masturbate. Jackson v. State, 344 Ga. App. 618, 810 S.E.2d 672 (2018).
Evidence sufficient to sustain conviction.
- Defendant's child molestation and aggravated child molestation convictions were upheld on appeal as supported by sufficient evidence taken from the victim's testimony; the victim's forensic interview and medical examination by a registered nurse; and similar transaction evidence showing defendant's motive, intent, and bent of mind. Rodriguez v. State, 281 Ga. App. 129, 635 S.E.2d 402 (2006).
Despite allegations that: (1) the victim's testimony was contradicted by the victim's parent; and (2) the victim had a motive to lie about the defendant, the appeals court refused to disturb the jury's determination as to the evidence given the jury's province to resolve the conflicts in the evidence; hence, the defendant's cruelty to children and attempted aggravated and child molestation convictions were upheld on appeal. Chalker v. State, 281 Ga. App. 305, 635 S.E.2d 890 (2006).
Defendant's convictions for aggravated child molestation and sexual exploitation of children were supported by the evidence based on the testimony of two minor victims that they engaged in numerous acts of oral and anal sex with the defendant, their identification of themselves in numerous photographs and several videos taken from the defendant's computer files, which depicted them engaging in sexually explicit conduct, and the sexually explicit photographs and video recordings. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126 (2006).
Sufficient evidence supported the convictions of enticing a child for indecent purposes under O.C.G.A. § 16-6-5 and of three counts of child molestation under O.C.G.A. § 16-6-4; the victim and the victim's younger sister specifically testified that the defendant committed the acts described in the indictment, and other testimony corroborated this testimony. Mikell v. State, 281 Ga. App. 739, 637 S.E.2d 142 (2006).
Sufficient evidence supported the defendant's convictions of aggravated child molestation under O.C.G.A. § 16-6-4(c), attempted aggravated sodomy under O.C.G.A. §§ 16-4-1 and16-6-2(a), and statutory rape under O.C.G.A. § 16-6-3(a); the victim testified that the defendant put the defendant's privates inside the victim's privates and attempted to put the defendant's privates in the victim's behind, and the nurse practitioner testified that the physical examination of the victim indicated injuries consistent with the victim's testimony. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Sufficient evidence supported the defendant's convictions of three separate counts of child molestation under O.C.G.A. § 16-6-4(a) as there was sufficient identification testimony to convict; the victim testified that the victim knew the defendant, the victim referred to the perpetrator of the offenses by the defendant's first name, and the victim testified that the victim spent the summer with the defendant and others. Clark v. State, 282 Ga. App. 248, 638 S.E.2d 397 (2006).
Sufficient identification evidence supported the defendant's convictions of four counts of aggravated child molestation under O.C.G.A. § 16-6-4(b), three counts of child molestation under O.C.G.A. § 16-6-4(a), and two counts of enticing a child for indecent purposes under O.C.G.A. § 16-6-5; the victim testified that the victim knew the defendant, that the defendant and the victim's mother lived together, and that the perpetrator's name was the defendant's first name. Clark v. State, 282 Ga. App. 248, 638 S.E.2d 397 (2006).
Defendant's child molestation conviction was upheld on appeal as: (1) the defendant waived error as to the admission of the victim's statements at trial, including those made in a videotape; (2) the victim's statements contained in the videotape were evidence of prior difficulties, admissible without notice and without a pretrial hearing; (3) after the trial court agreed to give a curative instruction on the wife-beating evidence, counsel withdrew a request for such an instruction on grounds that it would focus too much attention on a very brief statement; and (4) trial counsel was not ineffective. Campbell v. State, 282 Ga. App. 854, 640 S.E.2d 358 (2006).
Verdict convicting a defendant of child molestation under O.C.G.A. § 16-6-4(a) was supported by sufficient evidence; viewed in the light most favorable to the verdict, the record showed that, after watching pornographic movies at the home of the six-year-old victim, the defendant penetrated the victim's vagina with a finger while the victim's parent was asleep on a couch. Pendley v. State, 283 Ga. App. 262, 641 S.E.2d 174 (2006).
Given the testimony provided by the victim about the repeated acts performed by and for the defendant over a period of months, the fact that the defendant was giving money to the victim's cousin as an incentive not to tell anyone about the acts, and evidence that the defendant played a sexually explicit video for the victim and the victim's cousin, the defendant's child molestation and aggravated child molestation convictions were upheld on appeal. Hunter v. State, 282 Ga. App. 355, 638 S.E.2d 804 (2006).
Defendant's aggravated child molestation and aggravated sodomy convictions were upheld on appeal as supported by sufficient evidence including: (1) the testimony from both victims, which was corroborated by an investigator and a treating doctor; and (2) similar transaction evidence of the defendant's oral and anal molestation of other minor siblings, which was introduced for the purpose of showing a course of conduct, intent, and bent of mind toward sexual behavior with young relatives, and not to impugn the defendant's character. Chauncey v. State, 283 Ga. App. 217, 641 S.E.2d 229 (2007).
Because sufficient evidence was supplied via the testimony from the child victim, and the witnesses who corroborated said testimony, to support the defendant's aggravated sexual battery and child molestation convictions, despite any alleged inconsistencies, the convictions were upheld as was the denial of the defendant's motions for an acquittal and a new trial. Lilly v. State, 285 Ga. App. 427, 646 S.E.2d 512 (2007).
Trial court upheld the defendant's statutory rape and child molestation convictions despite a challenge to the date-range period relating to the child molestation charge as sufficient evidence from the victim, which was supported by both the victim's mother and an examining nurse, supported the conviction; further, the defendant admitted to the victim's mother that sexual intercourse with the victim had occurred before. Northern v. State, 285 Ga. App. 303, 645 S.E.2d 701 (2007).
There was sufficient evidence to support the defendant's convictions of child molestation, kidnapping with bodily injury, kidnapping, and aggravated assault, when the defendant, who lived with an ex-girlfriend and her teenage daughter, called them into a bedroom and bound the ex-girlfriend's arms, legs, and mouth with duct tape, threatened the women with a hatchet, and led the daughter to another bedroom where the defendant duct-taped her hands and feet and forced her to have intercourse with him. Phillips v. State, 284 Ga. App. 683, 644 S.E.2d 535 (2007).
Given the testimony offered by both victims and their father, and a taped telephone conversation between the father and the defendant, during which the defendant asked the father to apologize to the victims, sufficient evidence supported the defendant's two child molestation convictions. Head v. State, 285 Ga. App. 471, 646 S.E.2d 699 (2007).
Evidence was sufficient to convict the defendant of three counts of aggravated child molestation when the victim, who was five or six when the incidents occurred, stated that the defendant had put his penis into the victim's "behind" or "bottom"; any inconsistency in the victim's statements was a matter of credibility for the jury to resolve. Prudhomme v. State, 285 Ga. App. 662, 647 S.E.2d 343 (2007).
Given the evidence supporting the defendant's aggravated child molestation conviction including that: (1) the defendant sodomized the victim; (2) witnesses knew that the defendant had an interest in performing oral sex; and (3) the trial court properly limited the defendant's cross-examination to only relevant matters, the conviction was upheld on appeal and the trial court did not err in denying the defendant a new trial. Gaines v. State, 285 Ga. App. 654, 647 S.E.2d 357 (2007).
On appeal from a child molestation and aggravated child molestation conviction, the testimony and statements from the child victim and the witnesses who testified to the acts was sufficient to enable a rational trier of fact to determine that the defendant committed an indecent and immoral act by touching the victim's vaginal area with the intent to arouse the defendant's sexual desires; in addition, the testimony of an examining doctor was sufficient to enable a rational trier of fact to determine that the defendant physically injured the victim. Cortez v. State, 286 Ga. App. 170, 648 S.E.2d 488 (2007).
Because the evidence supported the finding that the defendant attempted to penetrate the 13-year-old victim's vagina with his penis, touched her breasts with his hands and his mouth, and told her to perform oral sex on him, the evidence was sufficient to authorize the jury's verdict as to each of his convictions for aggravated child molestation and for child molestation; it was not necessary that the victim's evidence be corroborated, and her credibility was a matter for the jury. Foster v. State, 286 Ga. App. 250, 649 S.E.2d 322 (2007), cert. dismissed, No. S07C1883, 2007 Ga. LEXIS 875 (Ga. 2007).
Because sufficient evidence as to venue and of the remaining elements of the crime was presented by the child victim, via both recorded and trial testimony, the child molestation convictions entered against both the defendants under both O.C.G.A. §§ 16-2-20 and16-6-4 were upheld on appeal. Newman v. State, 286 Ga. App. 353, 649 S.E.2d 349 (2007).
In a child molestation case involving four teenagers, the inconsistencies in the teenagers' statements did not mean that there was insufficient evidence to support the defendant's convictions; contradictions or issues of credibility were for the jury to resolve. Krirat v. State, 286 Ga. App. 650, 649 S.E.2d 786 (2007), cert. denied, No. S07C1788, 2007 Ga. LEXIS 745 (Ga. 2007).
There was sufficient evidence, including testimony by the victim and similar transaction evidence involving incidents that took place years before, to support a defendant's convictions of sexual battery, child molestation, and aggravated child molestation; the victim, who testified to various acts the defendant performed upon the victim, stated when confronted with inconsistencies in the victim's testimony that the victim had been on drugs during that period because the victim was trying to forget everything, and any inconsistencies in the victim's testimony were for the jury to resolve. Boynton v. State, 287 Ga. App. 778, 653 S.E.2d 110 (2007).
Five year old victim.
- Evidence was sufficient to support a defendant's convictions of child molestation, aggravated child molestation, and aggravated sexual battery after the five-year-old victim stated that the defendant had made her perform an oral act on his penis, that he had put his mouth on her vagina, and that he had stuck his finger in her vagina and anus; furthermore, the victim's seven-year-old sibling reported that the defendant had been lying on a bed in the same room as the victim, that the defendant had chased the sibling into the sibling's room and told the sibling to stay in bed until that night, and that the sibling saw "something bad" happen to the victim. Herring v. State, 288 Ga. App. 169, 653 S.E.2d 494 (2007), cert. denied, No. S08C0448, 2008 Ga. LEXIS 205 (Ga. 2008).
Evidence was sufficient to support a defendant's conviction of two counts of aggravated child molestation with regard to the defendant's daughter and the daughter's friend. The daughter, who was interviewed after a teacher became concerned about a poem she had written, told social services personnel that the defendant had sodomized her several years before by inserting his penis inside of her anus; her disclosures led to questioning of the friend, who had not had contact with the daughter for years, who began to cry immediately after the subject of molestation was broached, and who stated that the defendant had inserted his penis inside her anus while she was attending a slumber party at the daughter's house. French v. State, 288 Ga. App. 775, 655 S.E.2d 224 (2007).
Evidence was sufficient to convict defendant of child molestation and aggravated child molestation under O.C.G.A. § 16-6-4 and of aggravated sexual battery under O.C.G.A. § 16-6-22.2(b) because the state provided testimony corroborating the victim's statements that when the defendant was supposed to babysit the victim after school, defendant regularly abused the victim at the victim's home, in the defendant's car, in a park, in a vacant house, and two motels by touching the victim, making the victim perform oral sex on the defendant, by sodomizing the victim, by making the victim wear thong underwear, and by taking cellular telephone photographs of the victim naked. Woods v. State, 304 Ga. App. 403, 696 S.E.2d 411 (2010).
Trial court did not err in convicting the defendant of child molestation in violation of O.C.G.A. § 16-6-4 because the victim's video interview with Department of Family and Children Services case workers, which was played for the jury, and the victim's testimony in court were sufficient to permit a rational trier of fact to find the defendant guilty beyond a reasonable doubt; the interview showed the victim saying that the defendant touched the victim where the defendant was not supposed to, and at the trial, the victim was sometimes hesitant to testify but did ultimately testify that the defendant touched the victim between the victim's legs with the defendant's hand. Kay v. State, 306 Ga. App. 666, 703 S.E.2d 108 (2010).
Evidence was sufficient to authorize the jury to find the defendant guilty of aggravated child molestation in violation of O.C.G.A. § 16-6-4(c) because the victim testified that the abuse was long term and ongoing, that the abuse had escalated to include oral sex, and that the defendant had generally done the same thing on each occasion. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010).
Defendant's convictions for aggravated child molestation, aggravated assault, enticing a child for an indecent purpose, kidnapping, false imprisonment, cruelty to children, burglary, theft by taking, and striking an unattended vehicle were authorized because at trial the defendant was positively identified as the perpetrator of the crimes; a nurse and doctor testified that the victim had an injury that was consistent with the molestation allegation, and a videotape depicted the defendant driving a maintenance truck that the defendant did not have authority to take. Bearfield v. State, 305 Ga. App. 37, 699 S.E.2d 363 (2010).
Evidence from a defendant's own statement that the defendant touched the fourteen-year-old victim's vagina and became aroused was sufficient to convict the defendant of child molestation in violation of O.C.G.A. § 16-6-4(a)(1). Goss v. State, 305 Ga. App. 497, 699 S.E.2d 819 (2010).
Inconsistencies in statement between four year old victim and defendant.
- Evidence was sufficient to support the defendant's conviction for molesting a four-year-old girl because the victim testified that the defendant had touched her on her "front private" under her clothes, and defendant admitted doing the same thing; inconsistencies in their testimony merely presented an issue for the jury, not the court of appeals. Fife v. State, 306 Ga. App. 425, 702 S.E.2d 454 (2010).
Evidence relating to counts five through seven of the Coweta County indictment was sufficient to convict the defendant of child molestation because the indictment alleged that the defendant molested the victim of that offense by lifting the bedcovers to stare at the victim's buttocks while the victim was sleeping, by lying down between that victim and a friend as they slept, and lifting the bedcovers off that victim's buttocks on a different occasion while the victim slept on a couch at the victim's grandmother's house; when the victim asked the defendant what the defendant was doing, the defendant left the room; and the defendant committed similar acts against other sleeping girls. Cavender v. State, 329 Ga. App. 845, 766 S.E.2d 196 (2014).
Evidence was sufficient to convict the defendant of two counts of child molestation in Carroll County because the victim of that offense testified that the defendant placed a hand on the victim's buttocks while the victim was sleeping and, on another occasion, lifted the covers near the victim's buttocks and stared at the victim; the defendant committed similar acts against other sleeping girls; and a jury could find that the defendant engaged in immoral or indecent acts against that victim with the intent to arouse or satisfy the defendant's sexual desires. Cavender v. State, 329 Ga. App. 845, 766 S.E.2d 196 (2014).
Evidence was sufficient to convict the defendant of one count of aggravated child molestation and three counts of child molestation because the defendant touched the 10-year-old victim's breasts, touched the victim's private part area both over and under the victim's clothing, kissed the victim's private area as the victim lay naked on the defendant's bed, and showed the victim the defendant's penis; and the touching happened on more than one occasion and occurred in the defendant's bedroom, which the victim was able to describe to the investigators. Watkins v. State, 336 Ga. App. 145, 784 S.E.2d 11 (2016).
Inconsistencies in evidence goes to weight not sufficiency.
- Evidence was legally sufficient to support the defendant's conviction for aggravated child molestation and child molestation despite the inconsistencies between the victim's trial testimony and statement made during the vicitm's forensic interview, as any inconsistency went to the weight, not the sufficiency, of the evidence. Atkins v. State, 342 Ga. App. 849, 805 S.E.2d 612 (2017).
Evidence was sufficient to convict the defendant of two counts of child molestation because the defendant touched the nine-year-old victim's vagina with the defendant's hand and with a massager; and the evidence supported the inference that the defendant intended to arouse the defendant's or the victim's sexual desires as the defendant touched the victim's vaginal area with both the defendant's hand and a massager, the defendant held the massager in place between the victim's open legs despite the victim's request that the defendant stop, and the defendant made for the victim a revealing skirt similar to one worn by a model in an adult magazine in the defendant's possession. Kruel v. State, 344 Ga. App. 256, 809 S.E.2d 491 (2018).
Evidence insufficient for conviction.
- Evidence was insufficient to sustain all four of the defendant's convictions for aggravated child molestation, because a jury reasonably could have inferred that the "bad things" the victim testified the defendant did two or three times a month during the time the victims lived in Oconee County involved the defendant's routine and, therefore, the defendant performing oral sex on the victim. Bibb v. State, 315 Ga. App. 49, 726 S.E.2d 534 (2012).
Defendant's conviction for aggravated child molestation was vacated because on appeal, the state conceded that sexual intercourse was not an act of sodomy and, therefore, Count 6 as drawn in the indictment did not constitute the crime of aggravated child molestation and could not stand. Mosby v. State (two cases), 353 Ga. App. 744, 839 S.E.2d 237 (2020).
Evidence was insufficient to prove Count 4 of the indictment, alleging that the defendant committed the offense of child molestation by touching the vaginal area of one of the children with the defendant's hand because the child testified at trial that the defendant had tried to touch the child's vaginal area, but never actually did so as the child moved the defendant's hand. Espinosa v. State, 352 Ga. App. 698, 834 S.E.2d 558 (2019).
Evidence was insufficient to convict the defendant of aggravated child molestation by placing the defendant's mouth on the defendant's daughter's genital area because the daughter testified that the defendant tried to touch the daughter's genital area with the defendant's mouth, but nothing in the daughter's testimony or forensic interview revealed that the defendant actually placed the defendant's mouth there. Shepherd v. State, 353 Ga. App. 228, 836 S.E.2d 221 (2019).
Evidence was insufficient to support one count of child molestation, which alleged that the defendant used the defendant's hands to grab the victim's buttocks and rub the victim's vagina and buttocks, because the victim's testimony indicated that the encounter that formed the basis for that count did not involve the use of the defendant's hands and the court declined the state's request to infer that sex was commonly preceded by foreplay. Butler v. State, 352 Ga. App. 579, 835 S.E.2d 389 (2019).
Because there was no evidence that the defendant touched one victim's vaginal area, the defendant's conviction for child molestation involving that victim could not stand. Espinosa v. State, 352 Ga. App. 698, 834 S.E.2d 558 (2019).
Kissing as sufficient evidence of molestation.
- Evidence supported a defendant's child molestation conviction as the defendant was a 51-year old man and kissed an unrelated 10-year-old boy on the mouth while the two were swimming together within the context of a relationship involving other acts of molestation; the jury could infer that the defendant kissed the boy with the intent to gratify the defendant's sexual desires. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).
Victims do not need technical or statutory language to describe acts.
- Evidence was sufficient to support convictions of child molestation and cruelty to children under O.C.G.A. §§ 16-6-4 and16-5-70. From the testimony of the four-year-old victim, the victim's parent, and an interviewer, the jury was authorized to find that the victim used the word "tutu" to refer to the child's vaginal area, where the child said the defendant touched the child; it was completely unreasonable to require witnesses to describe the acts constituting the commission of a crime in statutory or technical language in order to prove the commission of such acts. Brookshire v. State, 288 Ga. App. 766, 655 S.E.2d 332 (2007).
On appeal from convictions for two counts of child molestation and two counts of aggravated sodomy, no reason for reversal was found because: (1) sufficient evidence was presented in support of the convictions, making the trial court's denial of an acquittal proper; (2) the time that counsel had to prepare for trial was adequate, thus diminishing the need for a continuance; (3) the defendant's statement to police was not made upon a promise of reward or hope of benefit; and (4) the defendant failed to show that the outcome of the trial would have been different but for counsel's alleged deficiencies. Robbins v. State, 290 Ga. App. 323, 659 S.E.2d 628 (2008).
Evidence was sufficient to support convictions of aggravated child molestation and of child molestation when an eight-year-old child's grandparent discovered the defendant and the child in bed together and when the child told her parent, a physician, and others that the defendant had touched her vagina. Lancaster v. State, 291 Ga. App. 347, 662 S.E.2d 181 (2008).
Defendant's conviction for child molestation was supported by sufficient evidence based on the testimony of the victim, defendant's child, and other witnesses, which confirmed the child's allegations that defendant had assaulted the child, and it was for the jury to determine the child's credibility. Crane v. State, 291 Ga. App. 414, 662 S.E.2d 225 (2008).
In defendant's trial for child molestation, despite no physical evidence to corroborate the allegations, there was sufficient evidence to support defendant's conviction based on the testimony of the victim, the victim's taped statement, the testimony of the victim's siblings, and defendant's confession. Simmons v. State, 291 Ga. App. 642, 662 S.E.2d 660 (2008).
Evidence supported the defendant's convictions of rape under O.C.G.A. § 16-6-1(a)(2), aggravated sexual battery under O.C.G.A. § 16-6-22.2, and two counts of child molestation under O.C.G.A. § 16-6-4(a) with regard to his daughter, who was seven at the time. The victim testified that the defendant touched her vagina with his hand and insisted that she touch his penis with her hand; a detective testified that the victim told him that the defendant touched her on her vagina with his hands, fingers, and penis and that he asked her to touch his penis; another detective, who conducted a videotaped interview with the victim, testified that the victim told her that she had sex with the defendant on multiple occasions; in the interview, the victim stated that the defendant pulled her pants down and put his penis inside her vagina and that he put his hand inside her vagina; and the victim's mother and grandmother testified to similar statements by the victim. Osborne v. State, 291 Ga. App. 711, 662 S.E.2d 792 (2008), cert. denied, No. S08C1643, 2008 Ga. LEXIS 783 (Ga. 2008), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
Evidence was sufficient to support the defendant's convictions of child molestation and aggravated child molestation when the victim stated that beginning when the victim was nine, the defendant repeatedly forced the victim to have anal sex and oral sex and a physician found that the victim lacked virtually all anal tone, which was consistent with multiple episodes of anal intercourse. Mullis v. State, 292 Ga. App. 218, 664 S.E.2d 271 (2008).
Testimony of a 10-year-old child that the defendant put the defendant's mouth, tongue, and penis on the child's privates, and testimony from the child's parent that the parent saw the defendant, nude, engaged in sexual conduct near the child, was sufficient to convict the defendant of aggravated child molestation under O.C.G.A. § 16-6-4(c). Linto v. State, 292 Ga. App. 482, 664 S.E.2d 856 (2008).
Evidence was sufficient to allow the jury to convict defendant of child molestation, O.C.G.A. § 16-6-4(a), based on an allegation in the indictment that defendant touched the victim on the victim's buttocks because the victim testified that the defendant touched the victim "everywhere" on the victim's body. Dew v. State, 292 Ga. App. 631, 665 S.E.2d 715 (2008).
As there was evidence that the defendant repeatedly touched a nine-year old child on the child's genitalia, the jury was authorized to infer that the defendant committed these acts with the requisite criminal intent, and defendant was properly convicted of child molestation in violation of O.C.G.A. § 16-6-4(a). Whitaker v. State, 293 Ga. App. 427, 667 S.E.2d 202 (2008).
There was sufficient evidence to support a defendant's conviction for child molestation based on a witness testifying that as the witness was in a shopping center parking lot, the witness observed the defendant perform an immoral and indecent act upon the child victim by kissing the child and placing the defendant's hands into the child's pants. Milan v. State, 293 Ga. App. 398, 667 S.E.2d 267 (2008).
Evidence that the defendant grabbed a 15-year-old's head and pushed the child's head toward the defendant's genitals, put the defendant's hands on the victim's genital area and breast, and the defendant's mouth on the victim's breast, was sufficient to convict the defendant of child molestation and attempted aggravated child molestation. Murray v. State, 293 Ga. App. 516, 667 S.E.2d 382 (2008).
Victim's trial testimony and evidence about the victim's outcry established that the defendant placed the defendant's sex organ in the victim's mouth. This evidence authorized the jury to find the defendant guilty of aggravated child molestation in violation of O.C.G.A. § 16-6-4(c). Stillwell v. State, 294 Ga. App. 805, 670 S.E.2d 452 (2008), cert. denied, No. S09C0493, 2009 Ga. LEXIS 222 (Ga. 2009).
Sufficient evidence was presented to convict a defendant of aggravated child molestation under O.C.G.A. § 16-6-4(b) based on the 13-year-old victim's testimony that the defendant forced vaginal intercourse upon the victim, causing her vagina to bleed from lacerations to the hymen; the testimony of the defendant's girlfriend, who walked in on the defendant leaning the defendant's body between the victim's naked thighs while on a couch; and the testimony of the nurse who examined the victim and found the lacerations, which indicated sexual penetration. Bell v. State, 294 Ga. App. 779, 670 S.E.2d 476 (2008).
Sufficient evidence supported an adjudication of delinquency for committing aggravated child molestation even though no corroborative biological evidence was found on the victim's clothing; competent evidence was presented by testimony of the six-year-old victim and a physician, who found redness around the victim's anus that indicated trauma, that appellant juvenile committed an act of anal sodomy. In the Interest of M.B., 295 Ga. App. 51, 670 S.E.2d 881 (2008).
With regard to a defendant's convictions on one count of enticing a child for indecent purposes, ten counts of child molestation, one count of aggravated child molestation, and three counts of cruelty to children in the first degree, regarding actions the defendant took toward the three children and what the children were forced to do to each other by gunpoint while the defendant was a babysitter for the children, the state proved the charged offenses beyond a reasonable doubt based on the testimony of the three victims and the victims' videotaped forensic interviews. It was within the province of the jury to disbelieve the defendant's testimony that the defendant did not commit the charged crimes. Sullivan v. State, 295 Ga. App. 145, 671 S.E.2d 180 (2008), cert. denied, No. S09C0624, 2009 Ga. LEXIS 215 (Ga. 2009).
Testimony that the defendant attempted to have intercourse with three children, exposed the defendant's nude body to one child, fondled one child's chest and another's genital area; and the defendant's statement that the defendant needed help to stop doing "things to kids" was sufficient to convict the defendant of three counts of child molestation under O.C.G.A. § 16-6-4(a). Inman v. State, 295 Ga. App. 461, 671 S.E.2d 921 (2009).
Technical language describing oral sex not required.
- Although a 15-year-old victim did not use technical language, her description of oral sex with defendant, a 30-year-old male, was sufficient to support a conviction of aggravated child molestation under O.C.G.A. § 16-6-4(a). Flewelling v. State, 300 Ga. App. 505, 685 S.E.2d 758 (2009).
Child testified that, when the child was 11, the defendant forced the child by threats to engage in sex on multiple occasions; the child's parents testified as to the child's outcry statements to the parents. This evidence was sufficient to support the defendant's convictions of three counts of aggravated child molestation. Hibbs v. State, 299 Ga. App. 723, 683 S.E.2d 329 (2009), cert. denied, No. S10C0056, 2010 Ga. LEXIS 159 (Ga. 2010).
Prisoner's sufficiency of the evidence claim under 28 U.S.C. § 2254 was properly denied because, although the jury rejected testimony of forcible rape by a 13-year-old victim, the jury was free to accept testimony stating that the victim had sexual intercourse and performed oral sex on the prisoner and proof of consent was not required under O.C.G.A. §§ 16-6-2,16-6-3, and16-6-4 for the offenses of statutory rape and aggravated child molestation. Dorsey v. Burnette, F.3d (11th Cir. Mar. 18, 2009)(Unpublished).
Evidence was sufficient to support a conviction of child molestation under O.C.G.A. § 16-6-4(a) because the 15-year-old victim admitted to having sex with defendant on several occasions and that, on several of those occasions, the defendant had supplied the victim with crack cocaine, which they had smoked together. Watson v. State, 302 Ga. App. 619, 691 S.E.2d 378, cert. denied, U.S. , 131 S. Ct. 328, 178 L. Ed. 2d 213 (2010).
Testimony of the victim's mother and therapist, a videotape of the victim describing the incident, and the fact that defendant fled the country after a police interview provided sufficient evidence for a child molestation conviction. Waters v. State, 303 Ga. App. 187, 692 S.E.2d 802 (2010).
Evidence was insufficient to support a conviction under an indictment which charged that defendant molested the victim when defendant "fondled" the victim's genitals because the victim never testified that defendant fondled or even touched the victim's genitals. Woods v. State, 244 Ga. App. 359, 535 S.E.2d 524 (2000).
Evidence did not support a conviction for aggravated child molestation where there was no evidence that the defendant placed the defendant's mouth on the victim's genitals, as alleged in the indictment. Jackson v. State, 274 Ga. App. 26, 619 S.E.2d 294 (2005).
Corroboration and sufficiency of evidence.
- Testimony of the victim, corroborated by evidence of her outcry to her grandmother, and the direct evidence of eyewitnesses was sufficient to authorize the jury's verdict that defendant committed child molestation beyond a reasonable doubt. Turner v. State, 223 Ga. App. 448, 477 S.E.2d 847 (1996).
Failure to preserve lab sample evidence did not warrant dismissal.
- Trial court's order dismissing an indictment charging the defendant with rape, incest, aggravated child molestation, and child molestation on grounds that the state improperly failed to preserve lab samples taken from the victim was reversed because the defendant failed to show that the failure was the result of bad faith on the part of the state or the police, and the value of the sample to the defendant was only potentially exculpatory. State v. Brady, 287 Ga. App. 626, 653 S.E.2d 72 (2007).
Failure to preserve abortion material.
- When the defendant was convicted of rape, aggravated child molestation, and enticing a child for indecent purposes, because the preservation of evidence statute applies to physical evidence containing biological material that could identify the perpetrator and is collected at the time of the crime, the statute did not apply to the biological material collected at the victim's abortion more than two months after the crime occurred; and the statute did not apply to the sample collected from the victim's abortion because the sample was contaminated due to the storage procedure used by the medical clinic, not the state, and there was no usable biological material that would relate to the identity of the perpetrator. Davis v. State, 329 Ga. App. 797, 764 S.E.2d 588 (2014).
Evidence sufficient for conviction of aggravated child molestation involving oral sodomy and child molestation. Deyton v. State, 182 Ga. App. 73, 354 S.E.2d 625 (1987).
Evidence was sufficient to convict the defendant of four counts of aggravated child molestation because the victim testified that the defendant put the defendant's penis in the victim's mouth on multiple occasions and put the defendant's mouth on the victim's vagina on multiple occasions. Hunt v. State, 336 Ga. App. 821, 783 S.E.2d 456 (2016).
Evidence was sufficient to convict the defendant of aggravated child molestation, rape, incest, and two counts of sexual battery because the defendant, the victim's father, began touching the victim's breasts and genital area when the victim was 14 years old; the defendant's actions escalated to vaginal intercourse after the victim turned 15; the victim told the defendant the intercourse was painful, but the defendant persisted; the victim testified that the victim did not desire or consent to the sexual activity with the defendant; and the victim's testimony was corroborated by the medical evidence that the victim's genital area appeared abnormal in ways consistent with the victim's account. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).
Victim's testimony that the defendant touched the victim on the victim's private part with the defendant's fingers and that it hurt, the forensic interviewer's testimony that the victim told the interviewer that the defendant's touching hurt, and the nurse's testimony that the victim told the nurse that the touching hurt and it sometimes burned when the victim urinated after the defendant touched the victim was sufficient to prove the physical injury element of aggravated child molestation. Massey v. State, 346 Ga. App. 233, 816 S.E.2d 100 (2018), cert. denied, No. S18C157, 2019 Ga. LEXIS 80 (Ga. 2019).
Evidence was sufficient to convict the defendant of the remaining counts of aggravated child molestation, child molestation, attempted child molestation, and cruelty to children, not included in Count 3, based on the video-recordings of the children's forensic interviews; testimony about the children's various disclosures; the children's testimony; and the neighbors' testimony that the neighbors observed bruises and other injuries on the children, and saw the defendant kick one of the children. Shepherd v. State, 353 Ga. App. 228, 836 S.E.2d 221 (2019).
Evidence sufficient for conviction of aiding and abetting child molestation.
- Trial court properly denied a defendant's motion under O.C.G.A. § 17-9-1(a) for an acquittal in the defendant's trial for aiding and abetting a housemate in committing acts of aggravated child molestation against the defendant's children, because there was ample evidence that the defendant acquiesced in and encouraged the acts of child molestation by forcing the children to sleep in the same room with the housemate although the children objected. Valentine v. State, 301 Ga. App. 630, 689 S.E.2d 76 (2009).
Reliability hearing required.
- Defendant's child molestation conviction was reversed given that the child victim was three-years-old, that the victim gave inconsistent statements, that the victim might have been coached by the defendant's estranged spouse, that law enforcement was involved in the child's interviews, that 75 out-of-court hearsay statements of the child were introduced by the state, and that the child hearsay statements formed the bulk of the evidence against the defendant, a pretrial Gregg hearing on the reliability of the statements was required under former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820). Ferreri v. State, 267 Ga. App. 811, 600 S.E.2d 793 (2004).
Proof of victim's age.
- In a prosecution for child molestation, even though the state was not restricted to the dates stated in the indictment, it was nevertheless required to prove that the victim was under the age of 16, because that was an essential element of the crime. Terrell v. State, 245 Ga. App. 291, 536 S.E.2d 528 (2000).
Abandonment defense disproved.
- With regard to the defendant's convictions for attempted child molestation, the state sufficiently defeated the defendant's defense of abandonment because while the defendant did leave the motel parking lot, it was not until the defendant viewed the task force agents wearing identifying t-shirts, communications through open car windows about defendant's identification were already had, and the defendant left at a high rate of speed in an attempt to flee. Muse v. State, 323 Ga. App. 779, 748 S.E.2d 136 (2013).
Directed verdict of acquittal unwarranted as: (1) the credibility of the child victim and any conflicts in the trial testimony were matters solely within the province of the jury to decide; (2) physical findings were not required to corroborate the charges of child molestation, aggravated sexual battery, and aggravated child molestation; and (3) the victim's testimony alone was sufficient to authorize the jury to find the defendant guilty of the crimes charged under the standard of Jackson v. Virginia. Hutchinson v. State, 287 Ga. App. 415, 651 S.E.2d 523 (2007).
When the defendant was charged with using the Internet to seduce, solicit, lure, or entice a child or a person believed to be a child to commit an illegal sex act, under O.C.G.A. § 16-12-100.2(d)(1), attempted aggravated child molestation, under O.C.G.A. §§ 16-4-1 and16-6-4(c), and attempted child molestation, under §§ 16-4-1 and16-6-4(a), it was not error to deny the defendant's motion for a directed verdict of acquittal, based on entrapment, because the jury's determination that entrapment did not occur was supported by evidence that: (1) the defendant continued communicating with a person the defendant believed to be 14 years old, including having sexually explicit conversations with the person in which the defendant stated the defendant wanted "a lot of oral," after the defendant learned that the person was 14 years old; (2) the defendant discussed with the person how the person could meet the defendant if the person could not drive, inquired whether the person had ever snuck away from home before, and stated that the defendant believed the union would be legal if the defendant were 16 years old, instead of the defendant's actual age; (3) the defendant left the defendant's home of Tennessee to meet a purportedly 14-year-old girl in order to have sex with the person, which the defendant admitted in the defendant's statements to officers; and (4) the defendant brought condoms with the defendant, which the defendant stated were to prevent any "accidents" in the event the defendant was able to have sex with the person. Millsaps v. State, 310 Ga. App. 769, 714 S.E.2d 661 (2011).
Defense counsel not ineffective in child molestation case.
- In a child molestation prosecution, the defendant contended defendant's trial counsel was deficient in failing to attack the validity of the search warrant used to obtain a DNA sample as the supporting affidavit failed to disclose that the victims' outcry was made to their parent shortly after the parent lost primary custody of the parent's other child. This claim failed because even if this evidence had been included, the victim's statement to the affiant that the defendant fathered the victim's child was sufficient to support the warrant. Farris v. State, 293 Ga. App. 674, 667 S.E.2d 676 (2008).
With regard to a defendant's convictions for false imprisonment, rape, and aggravated child molestation arising from allegations that the defendant sexually molested a 9-year-old relative, the defendant failed to meet the burden of establishing that the defendant received ineffective assistance of counsel as to trial counsel's alleged failure to proffer the defendant's anticipated testimony regarding the victim's alleged sexual behavior as the term "hot" as used by the defendant regarding the victim was explained by the officer who interviewed the defendant as meaning that the defendant believed that the victim was sexually active with another, thus, the jury was made aware of what the defendant meant by the term, as opposed to being left with the mistaken impression that the defendant found the victim sexually attractive. Additionally, the defendant failed to establish any prejudice with regard to the contention that trial counsel provided ineffective assistance by not objecting or moving for a mistrial regarding a fellow inmate's testimony and a letter regarding the defendant's future dangerousness as the court found that the record showed that trial counsel did object and was overruled. Furlow v. State, 297 Ga. App. 375, 677 S.E.2d 412 (2009).
When the defendant was convicted of rape, aggravated child molestation, and enticing a child for indecent purposes, trial counsel was not ineffective in failing to investigate alternate sources of the victim's pregnancy and injuries because trial counsel testified that identifying an alternate sexual partner might have conflicted with the Rape Shield Statute; any sexual contact after the crime would not have been relevant to the victim's injuries and would have been highly prejudicial; and, in light of the victim's testimony, the victim's immediate outcry, and the evidence of male DNA found inside the victim and the victim's vaginal injury, it was not reasonably likely that the result of the trial would have been different. Davis v. State, 329 Ga. App. 797, 764 S.E.2d 588 (2014).
Motion for new trial properly denied.
- On appeal from two child molestation convictions, the defendant was properly denied a new trial because the admission of privileged testimony was not erroneous, and trial counsel was not ineffective by: (a) ignoring a consent order barring the state from introducing any written or oral admissions or statements the defendant made before and after a polygraph examination; (b) failing to assert the attorney-client privilege with respect to a polygraph expert's testimony; and (c) failing to adequately prepare a second polygraph expert who testified for the defense at trial; in fact, (1) counsel neither ignored the consent order nor performed deficiently when stipulating to the admission of the polygraph results; and (2) even assuming that counsel was deficient in failing to consult the defendant regarding the attorney-client privilege, the defendant failed to show a reasonable probability that the result would have been different in the absence of the second expert's cumulative testimony. Adesida v. State, 280 Ga. App. 764, 634 S.E.2d 880 (2006).
On retrial on one count of child molestation and two counts of aggravated child molestation, the defendant was not entitled to a new trial on grounds that trial counsel was ineffective in admitting notes generated by a forensic evaluator who interviewed the child victim as the defendant had previously been found guilty in the first trial in which the notes were not introduced. Mewborn v. State, 285 Ga. App. 187, 645 S.E.2d 669 (2007).
Trial court properly denied the defendant's motion for a new trial on appeal from the defendant's convictions of child molestation and aggravated child molestation because: (1) venue was adequately shown by the testimony of a single witness; (2) the defendant's trial counsel was not ineffective by failing to prepare for trial, investigate the case, subpoena important documents, interview key witnesses, and object to damaging testimony; and (3) the defendant failed to show that the outcome of the trial would have been different but for counsel's alleged shortcomings. Brooks v. State, 286 Ga. App. 209, 648 S.E.2d 724 (2007).
Admission of challenged evidence deemed harmless error.
- In a prosecution against the defendant for child molestation, enticing a child for indecent purposes, and exhibiting pornography to a minor, even if the appeals court assumed that the word "catheter" should have been redacted from what the defendant apparently conceded was an otherwise relevant list of items found in a search, the trial court's failure to do so was harmless error because it was highly improbable that such failure contributed to the verdict given the overwhelming evidence of the defendant's guilt. Goldey v. State, 289 Ga. App. 198, 656 S.E.2d 549 (2008).
In a child molestation prosecution, the victim's therapist testified that a caseworker told the therapist that the victim had made an outcry alleging sexual abuse by the defendant and that the victim's sibling may also have been abused. If admission of this testimony was error, the admission was harmless because the evidence was cumulative of evidence that had been properly admitted. Ortiz v. State, 295 Ga. App. 546, 672 S.E.2d 507 (2009), cert. denied, No. S09C0803, 2009 Ga. LEXIS 269 (Ga. 2009).
Court of appeals properly held that children's out-of-court statements about sexual conduct that happened to each other in their presence were admissible under the former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), because the court did not err in declining to extend the holding of Woodard v. State, 269 Ga. 317 (1998), which was overruled as to the defendant's case; there is nothing irrational about creating disparate classes of criminal defendants based on the young age of the witnesses to their crimes. Bunn v. State, 291 Ga. 183, 728 S.E.2d 569 (2012) (O.C.G.A. § 24-8-820 eliminated the portion of the 1995 amendment to former § 24-3-16 which was held unconstitutional in Woodard v. State).
Indictment contained inadequate information as to alleged victim.
- Trial court did not err in granting the defendant's special demurrer and dismissing the indictment charging the defendant with attempted child molestation, O.C.G.A. §§ 16-4-1 and16-6-4, attempted aggravated child molestation, O.C.G.A. §§ 16-4-1 and16-6-4(c), and computer pornography, O.C.G.A. § 16-12-100.2(d) because the indictment contained inadequate information as to the alleged victim; attempted child molestation, attempted aggravated child molestation, and computer pornography are crimes against a particular person and require the victim to be identified in the indictment, even when the victim was a police officer using a pseudonym. State v. Grube, 315 Ga. App. 885, 729 S.E.2d 42 (2012).
Conviction despite fact that victim never existed.
- Evidence that the defendant traveled from Tennessee to an arranged location in Georgia to have sexual intercourse with a person the defendant thought to be a 14-year-old girl, a substantial step toward committing the offense of criminal attempt to commit child molestation, was sufficient to support the defendant's conviction for attempt to commit child molestation. The fact that the girl did not actually exist and, thus, the defendant was never in the child's presence did not preclude the defendant's conviction. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474 (2013).
Videotape of interview between child victim and investigating officer.
- Trial court did not abuse its discretion when it allowed the state to show the jury videotapes of interviews police made with children who accused defendant of touching their genitals, or when it allowed the children's parents to testify about statements their children made to them, and the appellate court held that evidence which showed that defendant touched the genitals of several children who were enrolled in tae kwon do classes defendant taught and that three children were sodomized was sufficient to sustain defendant's convictions on 18 counts of child molestation and three counts of aggravated child molestation. Fiek v. State, 266 Ga. App. 523, 597 S.E.2d 585 (2004).
After a defendant molested a nine-year-old child, a videotape of the child's interview by a detective was properly admitted under former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) as a statement made by a child under the age of 14 years describing an act of sexual contact. Whether the videotape also bolstered the child's trial testimony was immaterial. Whitaker v. State, 293 Ga. App. 427, 667 S.E.2d 202 (2008).
Expert Testimony
Error in admitting social worker's opinion not harmless.
- It was error to allow a social service worker to testify as to the social worker's opinion that the child had been molested, and such error could not be said to be harmless, where weight of evidence was not overwhelming and did not include medical or psychological testimony, and where charges were not made until long after the alleged incident and were then raised in the context of an acrimonious divorce action. Putnam v. State, 231 Ga. App. 190, 498 S.E.2d 340 (1998).
Doctor may testify on "ultimate issue".
- Even if a doctor who had examined victim and testifies as an expert expresses an opinion on the "ultimate issue," i.e., the molestation of the child, such an opinion is appropriate in child molestation cases and there is no constitutional error which is reviewable, absent contemporaneous objection. Pegg v. State, 183 Ga. App. 668, 359 S.E.2d 678 (1987).
Psychologist's testimony regarding victim's credibility.
- Trial court properly admitted testimony from a psychologist who treated an 11-year-old child after the child told several people that the victim's step-parent had molested the victim despite the child's previous episodes of lying. Horne v. State, 262 Ga. App. 604, 586 S.E.2d 13 (2003).
Unlicensed psychologist.
- Testimony by an unlicensed psychologist was not rendered inadmissible in a prosecution for child molestation and attempted child molestation, based solely on a witness's lack of licensure, as Georgia law carved out an exception to the licensing requirements for those witnesses who, like the state's expert, were practicing under supervision in order to obtain a license. Nelson v. State, 279 Ga. App. 859, 632 S.E.2d 749 (2006).
Registered nurse.
- In a prosecution on charges of both child molestation and aggravated child molestation, the trial court did not abuse the court's discretion in allowing an examining registered nurse to give an opinion that a child sex abuse victim's injuries were consistent with ones caused by penetration by a finger when, prior to testifying, the nurse outlined the relevant background, completion of a sexual assault nurse examiner's program and advanced pediatric training under the supervision of a doctor involved in child abuse cases, and training and experience in performing numerous pelvic examinations on child abuse victims. Rodriguez v. State, 281 Ga. App. 129, 635 S.E.2d 402 (2006).
Trial court did not err in denying the defendant's motion in limine to exclude a nurse's testimony, stating that the victim's normal physical examination was consistent with claims of molestation, as the nurse simply testified that the victim's physical examination results were consistent with the allegations, and as such was a permissible expression of the expert's opinion. Noe v. State, 287 Ga. App. 728, 652 S.E.2d 620 (2007).
Expert testimony regarding child sexual abuse accommodation syndrome is properly admissible in appropriate cases. However, the state may not utilize the child sexual abuse profile as an affirmative weapon unless the defendant has placed defendant's own character in issue or raised some defense to which the syndrome is relevant. Allison v. State, 179 Ga. App. 303, 346 S.E.2d 380 (1986), rev'd on other grounds, 256 Ga. 851, 353 S.E.2d 805 (1987).
Testimony concerning the "child sexual abuse accommodation syndrome" was properly admitted, even though the existence of such a syndrome had not been established to a verifiable scientific certainty, since testimony concerning this syndrome has been permitted in numerous other child abuse cases in this state. Rolader v. State, 202 Ga. App. 134, 413 S.E.2d 752 (1991), cert. denied, 202 Ga. App. 907, 413 S.E.2d 752 (1992).
With regard to the defendant's conviction for child molestation and aggravated sexual battery, the trial court did not err by denying the motion for mistrial or motion for new trial based on the testimony of a forensic interviewer following the child victim's outcry in court about testifying because the forensic interviewer provided only general testimony concerning child abuse accommodation syndrome and the behaviors abused children often exhibit as a result of having been abused and did not testify that in the interviewer's opinion the victim had been abused or that the victim's inability to take the stand to testify against the defendant was a result of having been abused by the defendant. Canty v. State, 318 Ga. App. 13, 733 S.E.2d 64 (2012).
Ineffective assistance in failure to object to psychologist's testimony.
- Defense counsel's failure to object to a psychologist's testimony that the psychologist's evaluation strongly suggested that the victim was sexually abused as alleged was ineffective assistance because, considered in context, the testimony improperly amounted to a factual conclusion regarding whether the child was sexually abused and whether the defendant was the abuser; the expert's opinion was not superfluous, but usurped the jury's authority. It was highly probable that the failure to object to this testimony contributed to the guilty verdict. Pointer v. State, 299 Ga. App. 249, 682 S.E.2d 362 (2009).
Counsel not ineffective for failing to object to child therapist's testimony.
- Defendant did not establish that defendant's trial counsel was ineffective for failing to object to a child therapist's testimony on the ground that the testimony bolstered the child molestation victim's accusations because the therapist never expressly stated that the therapist believed the victim had been abused; although the defendant argued that the therapist's testimony was subject to that interpretation, the testimony the defendant cited did not address the ultimate issue before the jury or bolster the victim's credibility. O'Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010).
Merging With Other Offenses
Relation to rape and aggravated sodomy.
- Jury's verdict of not guilty of rape was not repugnant to and inconsistent with the verdicts of guilty for aggravated sodomy and child molestation. The elements of each of the three crimes charged are different, and the conduct related to each, as evidenced in this case, was also different, distinct, and separate. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987).
Not lesser included offense of aggravated sodomy.
- Child molestation is not a lesser included offense of aggravated sodomy, either as a matter of law, under either O.C.G.A. § 16-1-6(2) or O.C.G.A. § 16-1-7(a), or as a matter of fact. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987).
Defendant convicted on child molestation despite sodomy acquittal.
- Defendant's acquittal on a separate charge of aggravated sodomy did not require that defendant should also have been acquitted on an aggravated child molestation charge. Because there was evidence of physical injury to support the aggravated molestation charge, it was not necessary to prove sodomy to maintain the aggravated child molestation conviction. Baker v. State, 228 Ga. App. 32, 491 S.E.2d 78 (1997).
Offense of aggravated sodomy did not factually merge into the offense of child molestation, when one of the offenses was established by proof of the same or less than all the facts required to prove the other. LeGallienne v. State, 180 Ga. App. 108, 348 S.E.2d 471 (1986).
Child molestation in connection with the fondling of the victim's vagina did not merge with aggravated sodomy charges based on two acts of oral sex, where the acts of sodomy were not used to establish the child molestation charge. Pressley v. State, 197 Ga. App. 270, 398 S.E.2d 268 (1990).
Child molestation and aggravated sodomy are legally distinct and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Vest v. State, 211 Ga. App. 882, 440 S.E.2d 765 (1994).
Charge of two crimes for same described act.
- When the evidence showed that, at least as to two of the three victims, the defendant committed the illegal act charged in each pair of counts aggravated sodomy and aggravated child molestation on more than one occasion, but the indictment did not charge the defendant with separate and distinct acts but merely charged the defendant with two different crimes for the same described act, the defendant should have been sentenced for only one of the two offenses for which the defendant was convicted as to each of the three victims. This case is distinguishable from those cases in which the court has upheld the conviction and sentencing for separate crimes and rejected the defendant's claim of merger because the indictment charged the defendant with multiple, distinct offenses. Lewis v. State, 205 Ga. App. 29, 421 S.E.2d 339 (1992).
Defendant's aggravated child molestation charge merged with the aggravated sodomy charge, as both were based on the same act of sodomy; while defendant committed multiple acts of anal sodomy against one of the victims, the indictment did not charge defendant with separate and distinct acts but merely charged defendant with two different crimes for the same described act. Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004).
Aggravated sodomy count of the indictment in violation of O.C.G.A. § 16-6-2 should have merged into the aggravated child molestation count in violation of O.C.G.A. § 16-6-4 as both alleged that the defendant had the victim perform oral sex on the defendant. Howard v. State, 281 Ga. App. 797, 637 S.E.2d 448 (2006).
Charges of aggravated sexual battery and child molestation, O.C.G.A. §§ 16-6-22.2(b) and16-6-4, respectively, were indistinguishable because all of the averments including the date, the victim, and the description of the defendant's conduct constituting the offense were identical. The charges should have merged for sentencing. Hudson v. State, 309 Ga. App. 580, 711 S.E.2d 95 (2011).
Multiple touches does not mean multiple prosecutions.
- Defendant's conduct, as outlined in three counts of the indictment alleging that the defendant touched three different areas of the victim's body constituted a single unit of prosecution for which the defendant was subject to only one conviction and sentence because the General Assembly did not, by clear and unambiguous language, provide that multiple touches to a victim, during a single uninterrupted course of conduct, authorized multiple prosecutions and convictions for separate acts of child molestation. Scott v. State, Ga. App. , 846 S.E.2d 241 (2020).
Child molestation and sexual battery.
- Even though the facts in an indictment for child molestation were sufficient to charge the lesser offense of sexual battery, where the evidence presented demanded a finding of child molestation or nothing, the trial court did not err by refusing to charge on sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Sexual battery can be a lesser included offense of child molestation in particular cases where the facts alleged in the indictment for child molestation also include all of the elements of sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
When the jury by the jury's verdict finds the defendant guilty of multiple offenses arising from the same conduct, the court does not err in convicting and sentencing the defendant for the greater offense after merging the lesser offenses into it. Conviction of both sexual battery and child molestation justified the merger of the battery offense into the molestation offense because the molestation offense was the greater offense; a defendant was properly sentenced as defendant's sentence was within the maximum prescribed for a first offense of child molestation. Dorsey v. State, 265 Ga. App. 597, 595 S.E.2d 106 (2004).
Because the evidence was sufficient to convict defendant of either sexual battery, in violation of O.C.G.A. § 16-6-22.1(b), or child molestation, in violation of O.C.G.A. § 16-6-4, the trial court was authorized to merge the lesser offense of sexual battery into the greater offense of child molestation. Webb v. State, 270 Ga. App. 817, 608 S.E.2d 241 (2004).
Since the question whether defendant committed sexual battery was not posed by the evidence presented, the trial court did not err when the court refused to charge the jury on sexual battery as a lesser included offense of child molestation. Walker v. State, 279 Ga. App. 749, 632 S.E.2d 482 (2006).
Defendant's conviction for sexual battery by touching the victim's genital area merged with the defendant's conviction for child molestation by touching the victim's vagina, and the defendant's conviction for sexual battery by touching the victim's breast merged with the defendant's conviction for child molestation by touching the victim's breast. Therefore, the trial court erred in imposing a separate sentence on the jury's verdicts on these sexual battery counts. Gunn v. State, 300 Ga. App. 229, 684 S.E.2d 380 (2009).
Trial court properly declined to merge a sexual battery offense, O.C.G.A. § 16-6-22.1(b), into a child molestation offense under O.C.G.A. § 16-6-4. The sexual battery was established by evidence that the defendant touched the 15-year-old victim's breasts, and the child molestation proof included evidence of the separate act of touching the victim's stomach. Haynes v. State, 302 Ga. App. 296, 690 S.E.2d 925 (2010), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Child molestation and aggravated sexual battery.
- Even though the defendant could be properly prosecuted for either crime, where the evidence shows a single act, the trial court erred in failing to merge the offenses for sentencing purposes. Shamsuddeen v. State, 255 Ga. App. 326, 565 S.E.2d 544 (2002).
Trial court properly refused to merge, for sentencing purposes, defendant's convictions for aggravated sexual battery and child molestation since the charged offense of aggravated sexual battery required proof of penetration, whereas the charged offense of child molestation did not. As a result, the separate acts were neither factually nor legally contained in the other respective count and, therefore, the offenses did not merge. Daniel v. State, 292 Ga. App. 560, 665 S.E.2d 696, cert. denied, No. S08C1931, 2008 Ga. LEXIS 891 (Ga. 2008).
Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645, 731 S.E.2d 79 (2012).
Simple battery not lesser included offense.
- Simple battery, as defined in O.C.G.A. § 16-5-23, is not a lesser crime included in the crime of child molestation as defined in O.C.G.A. § 16-6-4. State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354, cert. denied, 429 U.S. 833, 97 S. Ct. 98, 50 L. Ed. 2d 98 (1976).
Trial court's refusal to charge on simple battery as a lesser included offense of child molestation was not error, where the victim testified to defendant's commission of acts of fondling which, if believed by the jury, would clearly show that defendant had committed the crime of child molestation. Brooks v. State, 197 Ga. App. 194, 397 S.E.2d 622 (1990).
Child molestation and enticing child for indecent purposes.
- When the appellant stands convicted under a two-count indictment charging the appellant with enticing a child for indecent purposes under O.C.G.A. § 16-6-5 and child molestation under O.C.G.A. § 16-6-4, one crime is not included within the other as a matter of law. Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).
Child molestation and enticement are separate offenses, and the combination of attempt with child molestation does not bring it within the purview of enticement. Wittschen v. State, 259 Ga. 448, 383 S.E.2d 885 (1989).
Child molestation and enticement counts merged as a matter of fact where the enticement counts of the indictment specifically alleged that defendant enticed the child for the purpose of child molestation and, thus, in order to prove the enticement counts, the prosecution had to prove all the facts used to prove the child molestation counts. Wells v. State, 222 Ga. App. 587, 474 S.E.2d 764 (1996).
Child molestation and enticement are distinct and separate offenses that are not included within each other as a matter of law, as the offense of enticement has an element of asportation not found in the offense of child molestation. Veasey v. State, 234 Ga. App. 795, 507 S.E.2d 799 (1998).
Charges of child molestation and enticement did not merge as a matter of fact under the circumstances of the case since the acts which constituted enticement were separate from and completed before the acts which constituted molestation. Leon v. State, 237 Ga. App. 99, 513 S.E.2d 227 (1999).
Trial court did not err in failing to merge the defendant's convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes because to convict the defendant of criminal attempt to commit child molestation, the state had to prove that the defendant took a substantial step towards doing an immoral or indecent act to or with someone believed to be under the age of 16, and for purposes of convicting the defendant of criminal attempt to entice a child for indecent purposes, the state was not required to prove that the defendant was acting with an intent or desire to satisfy sexual desires. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).
Since the defendant encouraged the victim to sneak out of the house and then picked up the victim, drove the victim to a secluded destination, and proceeded to touch the victim in a sexual manner, the evidence showed that the charged offense of enticing a child and child molestation did not merge as a matter of fact, because the defendant completed the enticement before committing the acts of child molestation. Lengsfeld v. State, 324 Ga. App. 775, 751 S.E.2d 566 (2013).
Child molestation and computer child exploitation did not merge.
- Because the offenses of criminal attempt to commit child molestation and computer child exploitation each required proof of a fact the other did not, the trial court did not err in sentencing the defendant on both convictions. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474 (2013).
State was not required to charge a defendant with child molestation in order to obtain a conviction for enticing a child for indecent purposes as those are two separate crimes involving different elements, and generally, enticement is completed before child molestation occurs. Jackson v. State, 274 Ga. App. 26, 619 S.E.2d 294 (2005).
No merger if separate occasions.
- Child molestation and statutory rape offenses did not merge where they were separate legal offenses, and because the victim reported at least two separate acts of sexual intercourse with the victim's step-parent. McMillian v. State, 263 Ga. App. 782, 589 S.E.2d 335 (2003).
When the defendant sexually assaulted the two-year old victim on at least two separate occasions, there were two separate legal offenses that did not merge as a matter of law for sentencing purposes. James v. State, 268 Ga. App. 851, 602 S.E.2d 854 (2004).
Defendant's conviction for child molestation by touching a child's anus with defendant's genitals and aggravated child molestation by placing defendant's genitals in the child's anus did not merge as the child testified that defendant put the defendant's "private" in the child's anus on four occasions. Neal v. State, 271 Ga. App. 283, 609 S.E.2d 204 (2005).
Trial court properly refused to merge a defendant's convictions as the offenses of aggravated child molestation and sexual exploitation of children were separate legal offenses and did not merge as a matter of law; the offenses did not merge as a matter of fact as: (1) the defendant was charged with five separate acts of aggravated child molestation, each of which was based on different facts; (2) the 35 convictions of sexual exploitation of children were based on the distinct actions of the defendant creating 32 separate sexually explicit photographic or video images and distributing three other sexually explicit images over the Internet; and (3) the defendant's creation of sexually explicit images of several of the sex acts that constituted the basis for the aggravated child molestation charges were separate actions warranting a separate charge and conviction, as the offenses of aggravated child molestation were completed separately and independently of the defendant photographing or videotaping the acts. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126 (2006).
Because the record contained sufficient evidence of multiple acts committed against the victim by the defendant for the trier of fact to find the defendant guilty beyond a reasonable doubt of both aggravated child molestation and aggravated sodomy, the offenses did not merge as a matter of law or fact; thus, the evidence supporting one count was not "used up" in proving the other count. Forbes v. State, 284 Ga. App. 520, 644 S.E.2d 345 (2007).
Count of rape under O.C.G.A. § 16-6-1(a)(2) (carnal knowledge of a female under 16) did not merge into a count of aggravated child molestation under O.C.G.A. § 16-6-4 (immoral or indecent act with a child under 16 with the intent to arouse sexual desire and that act injuring the child) because the two counts arose out of different incidents with the same victim. Jones v. State, 335 Ga. App. 591, 782 S.E.2d 489 (2016).
Merger of child molestation counts.
- When the defendant was convicted of four counts of child molestation, the court of appeals erred in evaluating the defendant's claim that three of the child molestation counts should have been merged together using the "required evidence" test because the defendant was convicted of multiple counts of the same crime, and the court of appeals should have used the applicable unit-of-prosecution analysis to determine whether the three child molestation counts merged. Scott v. State, 306 Ga. 507, 832 S.E.2d 426 (2019).
Molestation counts did not factually merge.
- Merger was not appropriate on counts eight, nine, and ten in the defendant's child molestation case: count eight accused the defendant of placing the defendant's penis against the genital area of the victim; count nine accused the defendant of having the victim lick the defendant's buttocks; and count ten accused the defendant of placing the defendant's hand on the genital area of the victim. The evidence in the record established that each of these counts were separate and distinct crimes that were completed before the defendant perpetrated the next, and therefore, the crimes did not factually merge. Sarratt v. State, 299 Ga. App. 568, 683 S.E.2d 10 (2009).
Child molestation, aggravated sexual battery, and cruelty to children did not merge.
- In the defendant's trial for aggravated sexual battery, O.C.G.A. § 16-6-22.2, the jury charge did not suggest that the element of "without consent" was established solely by the victim's age; thus, the aggravated sexual battery charge was not a strict liability crime. The defendant completed the crime of aggravated sexual battery on the bed prior to molesting and causing the victim cruel or excessive physical or mental pain when the defendant followed the victim into the bathroom; the crimes did not merge. Womac v. State, 302 Ga. 681, 808 S.E.2d 709 (2017).
Lesser offense of cruelty to children did not merge into the greater offenses of rape and aggravated child molestation, where the facts that the victim was threatened and terrorized, that she screamed in pain, and that she continued to experience pain and discomfort and would suffer from the venereal diseases she contracted from defendant forever were not needed to prove the elements of rape and aggravated child molestation. Ranalli v. State, 197 Ga. App. 360, 398 S.E.2d 420 (1990).
Trial court did not err in failing to merge the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b), and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant's or the child's sexual desires under O.C.G.A. § 16-6-4(a). Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011).
Merger not warranted in child molestation and statutory rape.
- Trial court did not err in failing to merge the child molestation and statutory rape convictions because the child molestation conviction was based on the defendant touching the victim's back and vaginal area, while the statutory rape conviction was based on the defendant engaging in sexual intercourse with the victim. Wilson v. State, 354 Ga. App. 64, 840 S.E.2d 601 (2020).
Child molestation and attempted statutory rape.
- Trial court did not err in merging an attempted statutory rape charge into a child molestation charge, instead of merging the child molestation counts into the attempted statutory rape count; the evidence establishing that defendant fondled the victim's breasts was not used up in proving that the defendant removed their clothing and attempted penetration; accordingly, three child molestation charges were not subject to merger with the attempted statutory rape count. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Trial court did not err in merging an attempted statutory rape charge into a child molestation charge as the state was required to prove the commission of an immoral or indecent act (removing the victim's and defendant's clothing), the victim's age was less than 16, and defendant's intent to arouse or satisfy his own or the child's sexual desires; thus, the state used up the evidence that defendant committed attempted statutory rape in establishing that he committed child molestation. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Statutory rape.
- Conviction for child molestation merges into the crime of statutory rape and when there is a conviction for both the conviction and sentence for the former crime must be reversed. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982).
Trial court did not err in instructing the jury that it could return a verdict on child molestation, where defendant had been indicted for statutory rape and the evidence showed that child molestation was a lesser included offense of statutory rape as a matter of fact. Burgess v. State, 189 Ga. App. 790, 377 S.E.2d 543 (1989), aff'd, 194 Ga. App. 179, 390 S.E.2d 92 (1990).
Double jeopardy was not involved by a jury verdict finding the defendant guilty of rape and child molestation based on the same conduct where the trial court merged the two counts and entered a judgment of conviction and a sentence only on the rape count. Mackey v. State, 235 Ga. App. 209, 509 S.E.2d 68 (1998).
Trial court erred when it convicted defendant of child molestation because facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404, 593 S.E.2d 945 (2004).
Guilty verdict entered against a defendant on a charge of statutory rape, and a not guilty verdict against that same defendant on a charge of child molestation, stemming from the same act of intercourse with the victim, were not mutually exclusive or inconsistent, as the fact that the jury acquitted defendant of the child molestation charge did not make the evidence of statutory rape any less sufficient; further, even if the acquittal was inconsistent with the conviction, the inconsistency could not be used as an avenue to challenge the conviction, since the inconsistent-verdict rule was abolished in Georgia. Perez-Hurtado v. State, 275 Ga. App. 162, 620 S.E.2d 435 (2005).
Defendant's conviction of aggravated child molestation was not based on the same conduct that would have supported a conviction for statutory rape, so the rule of lenity was inapplicable. Wilson v. State, 279 Ga. App. 459, 631 S.E.2d 391 (2006), cert. denied, No. S06C1689, 2006 Ga. LEXIS 1036 (Ga. 2006).
While an indictment did not charge the defendant with statutory rape, O.C.G.A. § 16-6-3, the allegations of the indictment notified the defendant that statutory rape could have been considered a lesser included offense of the indicted crime of child molestation; since the defendant admitted that the defendant tried to place the defendant's genitals in the victim's genitals, and since the victim testified that "it hurt," a jury instruction on statutory rape as a lesser included offense of child molestation was proper. Stulb v. State, 279 Ga. App. 547, 631 S.E.2d 765 (2006).
Trial court properly denied defendant's request to have defendant's convictions for statutory rape and aggravated child molestation merged for sentencing purposes as the crimes were distinct offenses with different elements; testimony of the victim also authorized the jury to find that the crimes occurred on different occasions over a period of months, and therefore the crimes did not merge as a matter of either law or fact. Williams v. State, 291 Ga. App. 173, 661 S.E.2d 601 (2008).
Although a habeas applicant was convicted of uncharged statutory rape based on an instruction that statutory rape was a lesser included offense of forcible rape, and it was later decided that statutory rape was never an offense included in forcible rape, he failed to show a violation of due process because the elements of statutory rape were stated in the indictment as a whole, which also charged the applicant with child molestation and aggravated child molestation. Hill v. Williams, 296 Ga. 753, 770 S.E.2d 800 (2015).
Child molestation and incest.
- Defendant's child molestation in violation of O.C.G.A. § 16-6-4, rape in violation of O.C.G.A. § 16-6-1, and incest in violation of O.C.G.A. § 16-6-22 charges did not merge as a matter of law or fact because they were separate legal offenses and because the victim's testimony and other evidence showed that the victim suffered well over two separate acts of sexual intercourse and additional instances involving oral and anal sex with the defendant. Allen v. State, 281 Ga. App. 294, 635 S.E.2d 884 (2006).
Appellant was not convicted twice for same conduct as matter of fact when the appellant was convicted of violating O.C.G.A. §§ 16-6-4 and16-6-5. Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).
Attempted aggravated child molestation and attempted aggravated sodomy did not merge.
- In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and16-1-7. Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408, 825 S.E.2d 909 (2019).
Jury Issues and Instructions
Whether touching is of sexual nature is a question for the jury.
- When the defendant teacher's evidence was that the defendant's touching of minor students was not of a sexual nature, the issue was one for the jury to decide. Walsh v. State, 236 Ga. App. 558, 512 S.E.2d 408 (1999).
No claim of remaining juror confusion.
- In a child molestation case, where the jury was only to convict for conduct in the way and manner alleged in the indictment, which was an act with intent to arouse the defendant, not the child, but the statute covers both alternatives, the jury was not permitted to convict defendant on the child's sexual desires where the jury was recharged on the law, the jury election not to return to the courtroom with further questions, as it was told it could do, undercut any claim of remaining juror confusion. Branam v. State, 204 Ga. App. 205, 419 S.E.2d 86 (1992).
Questions requiring prejudgment of case.
- Trial court abused the court's discretion by prohibiting defense counsel from asking prospective jurors whether the prospective jurors had strong feelings about child molestation, and if those feelings would impair their judgment or make it difficult for the prospective jurors to judge the case; but, this error was harmless given the overwhelming evidence of the defendant's guilt regarding the numerous acts of sodomy that the defendant engaged in with the defendant's child, the scientific evidence which linked the defendant's DNA to the semen found in the victim's mouth, and the defendant's attempt to allude the authorities until the defendant was apprehended in Tennessee. Meeks v. State, 269 Ga. App. 836, 605 S.E.2d 428 (2004).
Charge to jury.
- It was error for the court to charge the jury on O.C.G.A. § 16-6-4 in the statute's entirety since the indictment charged the defendant only with committing aggravated child molestation by committing sodomy. Perguson v. State, 221 Ga. App. 212, 470 S.E.2d 909 (1996).
Trial court did not err in reciting O.C.G.A. § 16-6-4(a) in its entirety to the jury since the jury was informed of the exact offenses for which defendant had been charged and the court instructed the jury that defendant's guilt must be based upon the offenses as set forth in the indictment. Buice v. State, 239 Ga. App. 52, 520 S.E.2d 258 (1999), aff'd, 272 Ga. 323, 528 S.E.2d 788 (2000).
Because the trial court read the indictment to the jury, so that the jury was aware that the state alleged defendant caused physical injury to the victim, the court properly charged the jury by reading the portion of O.C.G.A. § 16-6-4 that applied in the case: causing physical injury to the child. Ceasar v. State, 239 Ga. App. 752, 521 S.E.2d 866 (1999).
Trial court properly limited the elements of the crime of child molestation to those charged in the indictment since it charged the jury with the text of O.C.G.A. § 16-6-4, read the indictment, and instructed that the jury must find that defendant committed the specific acts alleged in the indictment. Roberson v. State, 241 Ga. App. 226, 526 S.E.2d 428 (1999).
Contention that the trial court erred in charging a jury on the entire definition of aggravated child molestation under O.C.G.A. § 16-6-4(c), including that the offense could be committed through child molestation causing physical injury, when the indictment did not allege aggravated child molestation resulting from a sexual act that physically harmed the child, was rejected because sufficient limiting instructions were given to the jury, and thus, no danger existed that the charge might have misled the jury to believe that it could convict the defendant of aggravated child molestation based on facts not charged in the indictment. Holloway v. State, 278 Ga. App. 709, 629 S.E.2d 447 (2006).
Defendant's conviction for aggravated child molestation and the sentence imposed thereon was vacated because the record showed that the trial court did not instruct the jury that physical harm to the victim was an essential element of the crime of aggravated child molestation as indicted; consequently, the trial court's charge was harmful as a matter of law because the charge authorized a conviction for aggravated child molestation upon proof of only the elements of child molestation. Pitts v. State, 287 Ga. App. 540, 652 S.E.2d 181 (2007).
Given that the exact date the charged child molestation offense was alleged to have been committed was not stated as a material allegation in the indictment, the trial court did not erroneously instruct the jury that the indicted offenses could be proven to have occurred at any time within the statute of limitations as the defendant failed to show either the deprivation of an alibi defense or a right to a fair trial resulted by issuing the instruction. Brown v. State, 287 Ga. App. 857, 652 S.E.2d 807 (2007), cert. denied, No. S08C0393, 2008 Ga. LEXIS 154 (Ga. 2008).
Because a child molestation indictment properly charged conjunctively that defendant's acts were taken with the intent to arouse and satisfy the sexual desires of the accused and the child, and the state proved one such method, the trial court's charge in the disjunctive pursuant to the language of O.C.G.A. § 16-6-4(a) was not error. Martin v. State, 299 Ga. App. 845, 683 S.E.2d 896 (2009).
Trial counsel was not ineffective for failing to request a limiting instruction specifying the state's burden to prove that the child molestation against the victim occurred in the manner alleged in the indictment because the trial court's jury instructions, as a whole, properly distinguished the acts upon which the child molestation offense was based and limited the jury's determination of the child molestation offense to those acts set forth in that count of the indictment. Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011).
Defendant was entitled to a new trial because there was a reasonable possibility that the jury convicted the defendant of child molestation, O.C.G.A. § 16-6-4(a), in a manner not charged in the indictment since the trial court did not give a limiting instruction to ensure that the jury would find the defendant guilty in the specific manner charged in the indictment or instruct the jury not to consider child molestation as having occurred in another manner; when the jury expressed the jury's confusion by asking whether sexual conversations could constitute an immoral or indecent act, the trial court should have instructed the jury to limit the jury's consideration to determining whether the defendant was guilty of committing child molestation in the specific manner alleged in the indictment only. Smith v. State, 310 Ga. App. 418, 714 S.E.2d 51 (2011), cert. denied, No. S11C1731, 2012 Ga. LEXIS 249 (Ga. 2012).
Charge on accident not required.
- In a child molestation case, because the defendant denied any touching occurred, accidental or otherwise, the trial court did not err in denying the defendant's requested charge on accident because to support an instruction on accident, a defendant must admit to having committed an act that would constitute the crime charged. Watkins v. State, 336 Ga. App. 145, 784 S.E.2d 11 (2016).
Instruction on indictment for aggravated child molestation.
- Defendant, who was indicted for aggravated child molestation, was not convicted of a crime in a manner not charged in defendant's indictment on the basis that the trial court, after charging the jury with the relevant method, i.e., aggravated child molestation based on an act of sodomy, also gave a charge defining child molestation, which tracked the statutory language of O.C.G.A. § 16-6-4(a); the giving of this definitional charge was proper and there could be no error since the defendant was not indicted on a charge of child molestation or convicted thereof and was instead convicted of aggravated child molestation. Robinson v. State, 272 Ga. 752, 533 S.E.2d 718 (2000).
Testimony that the defendant's genitals touched the victim's "back private," although it never entered in the victim's anus, showed completion only of the greater offense of aggravated child molestation under O.C.G.A. § 16-6-4(c) and sodomy which was defined under O.C.G.A. § 16-6-2(a) as any sexual act involving the sex organs of one person and the mouth or anus of another; therefore, the trial court did not err in refusing to charge the jury on child molestation as a lesser included offense of aggravated child molestation. Wright v. State, 259 Ga. App. 74, 576 S.E.2d 64 (2003).
After charging a jury with the presumption of innocence and the state's burden of proof, a trial judge properly limited the charge by stating that if it believed defendant committed aggravated child molestation "as alleged in the indictment," it was authorized to find defendant guilty; as a result, the trial court properly denied defendant's motion for a new trial. James v. State, 268 Ga. App. 851, 602 S.E.2d 854 (2004).
Because an erroneous jury instruction on an offense of aggravated child molestation violated an inmate's due process rights by allowing the jury to convict in a manner not charged in the indictment, and the inmate's trial counsel was ineffective in failing to object to the instruction, the inmate was properly granted habeas relief. Hall v. Wheeling, 282 Ga. 86, 646 S.E.2d 236 (2007).
Jury instruction on the definition of sodomy was necessary, even though sodomy was not one of the offenses charged in the indictment, since sodomy was an element of the offenses of aggravated child molestation, O.C.G.A. § 16-6-2(a), for which defendant was on trial. Ramirez v. State, 265 Ga. App. 808, 595 S.E.2d 630 (2004).
Charge based on O.C.G.A.
§ 16-6-4(c). - When the indictment charged the defendant only with aggravated child molestation by committing sodomy, an instruction based upon O.C.G.A. § 16-6-4(c) in its entirety did not have the effect of allowing the jury to convict the defendant of the offense based upon acts of molestation that physically injured the victim. Hilliard v. State, 226 Ga. App. 478, 487 S.E.2d 81 (1997).
Erroneous instruction.
- Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769, cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
When the defendant was charged with aggravated child molestation by causing physical injury and one count of sodomy, it was reversible error to read O.C.G.A. § 16-6-4(c) to the jury in the statute's entirety since the statute allowed the jury to convict the defendant for aggravated child molestation involving an act of sodomy instead of the method charged in the indictment. Linson v. State, 221 Ga. App. 691, 472 S.E.2d 690 (1996).
Without a limiting instruction directing the jury to consider only whether defendant committed aggravated child molestation in the manner specified in the indictment, a charge on the entire O.C.G.A. § 16-6-4(c) violated due process and the error could not be deemed harmless. Skillern v. State, 240 Ga. App. 34, 521 S.E.2d 844 (1999).
Trial court erred in defining aggravated child molestation by instructing the jury that the defendant could be convicted of violating O.C.G.A. § 16-6-4(c) if the defendant either sodomized or injured the victim, because the indictment alleged only an act of sodomy; the error was harmless, however, as evidence of both sodomy and injury was presented, and the final charge cured any defect in the challenged instruction. Robertson v. State, 278 Ga. App. 376, 629 S.E.2d 79 (2006).
Trial court's instruction of the jury on the entirety of O.C.G.A. § 16-6-4(c) when the aggravated child molestation charge was based on physical injury to a child was not a substantial error under O.C.G.A. § 5-5-24(c); the indictment was read to the jury, the indictment was sent with the jury for deliberations, and the jury was instructed that the state's burden was to prove every material allegation in the indictment and every essential element of each crime beyond a reasonable doubt. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Good character charge erroneous.
- In a prosecution for child molestation, a good character charge was erroneous as: 1) the charge failed to inform the jury that the defendant's good character was a substantive fact, and that evidence of good character had to be considered in connection with all other evidence; and 2) the charge failed to instruct the jury that good character in and of itself could be sufficient to create a reasonable doubt as to guilt. Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009).
Instructions sufficient to inform jury of specific intent.
- In a prosecution under O.C.G.A. § 16-6-4, counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV for failing to request a jury instruction on specific intent or in objecting to the trial court's failure to give such an instruction; the jury was adequately instructed on the specific intent of the crime of child molestation, as the trial court informed the jury that child molestation was a crime of specific intent by reading the indictment to the jury and by instructing the jury on the statutory definition of child molestation, the trial court charged the jury that intent was an essential element of the crime that the state had to prove beyond a reasonable doubt, and the trial court stated that the jury would have to acquit if the jury found that the subject incident occurred as a result of accident. Malone v. State, 277 Ga. App. 694, 627 S.E.2d 378 (2006).
Failure to charge jury on statutory definition of child molestation in the absence of a request was not reversible error because the jury was charged on the statutory definition of enticing a child for indecent purposes; although the two crimes had different elements, a common element of each crime was that the defendant committed an "indecent act" to the victim or in the victim's presence. Jackson v. State, 274 Ga. App. 26, 619 S.E.2d 294 (2005).
Withdrawn charge request properly not honored.
- Trial court did not err by failing to charge the jury that child molestation was a lesser included offense of rape since the defendant subsequently withdrew a written request for such a charge. Brady v. State, 206 Ga. App. 497, 426 S.E.2d 15 (1992).
Erroneous charge in indictment of aggravated child molestation did not mean that the jury could not convict defendant of child molestation as charged by the trial court. Perry v. State, 216 Ga. App. 661, 455 S.E.2d 607 (1995).
Failure to charge definition of sodomy.
- Trial court's failure to charge, without written request, on the definition of "sodomy" was not reversible error, where the indictment specified the manner in which the alleged acts of sodomy had been committed and the evidence disclosed that defendant performed the acts of sodomy. Floyd v. State, 193 Ga. App. 17, 387 S.E.2d 16 (1989).
Counsel failing to insist complete diary be submitted to jury.
- In a child molestation case, trial counsel was not ineffective in failing to insist that the victim's entire diary go out with the jury because the evidence of the feelings of the victim, the defendant's daughter, toward the victim's parents showed that the victim had animosity toward the mother, rather than the defendant; and the diary entries which referenced the allegations that the defendant had fathered a child out of wedlock and failed to satisfy the financial obligations regarding the defendant's children would likely have undermined the defendant's good character defense. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014).
Charge on delinquency of a minor.
- When the defendant allegedly had intercourse with a 14-year-old, the trial court did not err in failing to give a lesser included offense instruction regarding delinquency of a minor in violation of O.C.G.A. § 16-12-1(b)(1) in addition to the court's instructions on child molestation in violation of O.C.G.A. § 16-6-4(a). Delinquency of a minor was not a lesser included offense of child molestation as proof of one offense would not have served to prevent a conviction on the other pursuant to O.C.G.A. § 16-1-6 because the offenses shared no essential elements and were directed to different acts. Slack v. State, 265 Ga. App. 306, 593 S.E.2d 664 (2004).
Charge tracking entire statute not error.
- Charge on a code section in the statute's entirety is not error when a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict, such that the trial judge's charging of the jury with the definition of child molestation as contained within O.C.G.A. § 16-6-4 with a subsequent instruction charging that the defendant's guilt must be based upon the offenses set forth in the indictment was not reversible error. Potts v. State, 207 Ga. App. 863, 429 S.E.2d 526 (1993).
When the indicted act of child molestation was defendant's placing of his mouth on the penis of the victim, the giving of the entire section on aggravated child molestation did not mislead the jury or violate defendant's due process rights. Rice v. State, 243 Ga. App. 143, 531 S.E.2d 182 (2000).
Any error in the trial court's charging the entire aggravated child molestation statute was not harmful because there was no reasonable possibility that the jury was misled and convicted the defendant of aggravated child molestation for causing physical injury not alleged in the indictment. Stevens v. State, Ga. App. , S.E.2d (Sept. 8, 2020).
Instruction on lesser included offenses.
- Sexual battery was not a lesser included offense of statutory rape as a matter of law, and because the indictment charging defendant with statutory rape was narrowly drawn and the evidence did not support instructions allowing the jury to find defendant guilty of sexual battery or simple battery, the trial court did not err when it denied defendant's request to instruct the jury that sexual battery and simple battery were lesser included offenses of statutory rape. Neal v. State, 264 Ga. App. 311, 590 S.E.2d 168 (2003).
In a trial on a charge of child molestation, O.C.G.A. § 16-6-4(a), the trial court did not err by refusing to instruct the jury on sexual battery, O.C.G.A. § 16-6-22.1(b), as a lesser included offense, because under the facts of the case, which alleged that the defendant sexually abused a six-year-old child, the evidence presented to the jury offered the choice between the completed crime of child molestation or no crime. Howell v. State, 278 Ga. App. 634, 629 S.E.2d 398 (2006).
There was no evidence warranting a charge of sexual battery in the defendant's sexual molestation case, and the defendant's strategy was to attack the credibility of the victim; because the evidence did not authorize a charge on sexual battery as a lesser included offense, the defendant was not prejudiced by counsel's failure to request a charge on the same. McGruder v. State, 279 Ga. App. 851, 632 S.E.2d 730 (2006).
Defendant was charged with child molestation and aggravated child molestation under O.C.G.A. § 16-6-4; the defendant denied having any sexual contact with the child and defense counsel argued that the charges were fabricated by the child's parent. As the evidence showed either the commission of the indicted crimes or no crimes at all, the defendant was not entitled to a charge on the lesser included offense of sexual battery under O.C.G.A. § 16-6-22.1(b). Linto v. State, 292 Ga. App. 482, 664 S.E.2d 856 (2008).
As the evidence in the defendant's criminal trial, if believed, would have supported defendant's conviction for the charged offense of aggravated child molestation, in violation of O.C.G.A. § 16-6-4(c), and the defendant denied that the incident occurred, there was no cause to instruct the jury on the lesser included offense of sexual battery; the evidence either showed a completed offense or no offense. Lucas v. State, 295 Ga. App. 831, 673 S.E.2d 309 (2009).
While a defendant claimed that trial counsel was ineffective for failing to request a jury instruction on the lesser included offense of child molestation under O.C.G.A. § 16-6-4(a) based on the defendant's denial of oral sodomy committed on the 14-year-old victim, trial counsel's all-or-nothing strategy regarding the prosecution for aggravated child molestation under O.C.G.A. § 16-6-4(c) was not unreasonable; trial counsel had elicited testimony by the victim that the initial written police statement contained no express reference to sodomy but stated that the victim and the defendant had kissed and cuddled, had elicited testimony from a security guard on cross-examination that the guard had not seen the victim adjust the victim's skirt by pulling it down when the victim stepped out of the car although that was what the guard claimed in a police statement, and had demonstrated that the surveillance camera had not captured anything below the mid-chest level of the car seats of the car in which the incident allegedly occurred. Nguyen v. State, 296 Ga. App. 853, 676 S.E.2d 246 (2009).
Because the defendant denied any contact with the victim, the trial court did not err in not charging on sexual battery as a lesser included offense of child molestation. Hilliard v. State, 298 Ga. App. 473, 680 S.E.2d 541 (2009).
To the extent the defendant sought review under O.C.G.A. § 17-8-58(b) of the trial court's charge to the jury on the jury's consideration of child molestation, attempted child molestation, and indecent exposure, there was no error because the trial court explained that the jury needed to consider all three offenses at the same time and properly explained how the jury would record the jury's verdict. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009).
Defendant was not entitled to a jury instruction on the lesser included offense of sodomy because there was no evidence to warrant such a charge given the defendant's theory of the case, that defendant, who admittedly spent time alone with the victims, had not touched any of the victims, and the state's evidence that the defendant sodomized the victims with the intent to gratify the defendant's own sexual desires. Ewell v. State, 318 Ga. App. 812, 734 S.E.2d 792 (2012).
Trial counsel was not ineffective in failing to request an instruction on the lesser-included offense of child molestation to the charged offense of aggravated child molestation because there was no evidence that anything other than aggravated child molestation occurred; and because the defense that the victim was lying about the defendant to avoid punishment for running away from home amounted to an all or nothing defense. Pepe-Frazier v. State, 331 Ga. App. 263, 770 S.E.2d 654 (2015), cert. denied, No. S15C1105, 2015 Ga. LEXIS 412 (Ga. 2015).
Trial court did not err in denying the defendant's instructions on lesser-included offenses of child molestation because the defendant denied any improper touching of the victim; thus, the defendant either committed an act of molestation or the defendant did not commit any act. Watkins v. State, 336 Ga. App. 145, 784 S.E.2d 11 (2016).
Trial court did not err in refusing to give a jury instruction on sexual battery as a lesser-included offense of child molestation because the defendant pointed to no evidence demonstrating that a touch occurred without the necessary intent for child molestation as the state presented evidence suggesting that the defendant asked the victim, a child under the age of 16 years, to be the defendant's girlfriend, would sometimes touch the victim after the victim got out of the shower, engaged in tongue-kissing with the victim, and had the victim touch the defendant's penis; and the evidence demonstrated either that the indicted crime or no crime at all occurred. Solis-Macias v. State, Ga. App. , S.E.2d (Sept. 4, 2020).
There was no plain error in the trial court's charge to the jury because the trial court gave an appropriate limiting instruction prior to the admission of the similar transaction evidence and because the purposes cited in the trial court's final charge were permissible and relevant to the state's case. Griffin v. State, 327 Ga. App. 751, 761 S.E.2d 146 (2014).
Trial court's failure to include the word "indecent" in the jury instruction on child molestation did not amount to plain error because the word was included in the written copy of the charge that the jury was given for deliberations and the defendant failed to show the error likely affected the outcome of the trial. Oates v. State, 355 Ga. App. 301, 844 S.E.2d 239 (2020).
Jury instruction on statute of limitation.
- Trial counsel was ineffective in failing to request a jury instruction on the statute of limitation with regard to the child-cruelty charge because in the indictment the state did not allege that the statute of limitation for child cruelty was tolled based on the victim being under the age of 16; thus, such proof was inadmissible at trial. Slack v. State, 354 Ga. App. 727, 841 S.E.2d 231 (2020).
Evidence sufficient to support instruction.
- Trial court's instruction to the jury on the statutory definition of aggravated child molestation was authorized by the evidence. Bryson v. State, 210 Ga. App. 642, 437 S.E.2d 352 (1993).
Failure to provide statutory notice of intent to seek life imprisonment.
- State's failure to provide statutory notice of their intent to seek life imprisonment with regard to a defendant charged with child molestation under O.C.G.A. § 16-6-4(b) meant that the maximum penalty for defendant was 30 years imprisonment, not life imprisonment. Webb v. State, 270 Ga. App. 817, 608 S.E.2d 241 (2004).
Batson challenge.
- Trial court properly overruled defendant's Batson challenge and allowed five jurors to remain on the panel, and not be stricken for cause, as: (1) the challenged African-American juror was not similarly situated to the remaining jurors; and (2) each of the challenged jurors testified unequivocally that their prior experiences would not hamper their ability to serve as impartial jurors. Cowan v. State, 279 Ga. App. 532, 631 S.E.2d 760 (2006).
Jury charge upheld.
- There was no reversible error, despite the defendant's argument on appeal that the trial court's charge to the jury on DNA evidence was incomplete and prejudicial as a matter of law, because: (1) a review of the record showed that the charge given by the court tracked the language set forth in the pattern charge and was otherwise a correct statement of law with respect to the collection and testing of DNA; and (2) the defendant's proposed jury charge was argumentative and composed primarily of evidentiary matters that were not proper for a jury instruction. Moreover, there was no request for the additional charge the defendant asserted was erroneously omitted present in the record. Stanley v. State, 289 Ga. App. 373, 657 S.E.2d 305 (2008).
Based on the jury instructions in the defendant's trial for child molestation, the trial court made it clear that the instructions applied to each of the seven counts; no reasonable juror would have understood that it was required to decide the verdict in an all or nothing fashion or that he or she was precluded from finding the defendant guilty of one or more counts and not guilty of others. The jury was not misled or confused. Parker v. State, 295 Ga. App. 859, 673 S.E.2d 334 (2009).
There was no due process violation regarding the trial court's charge on child molestation because the instructions cured any complained of problem with the charge since the charge as a whole limited the jury's consideration to the specific manner of committing the crime alleged in the indictment; the trial court read the indictment to the jury, instructed the jury that the state had the burden of proving every material allegation in the indictment beyond a reasonable doubt, and sent the indictment out with the jury during the jury's deliberations. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009).
Because the elements of child molestation were properly limited to those charged in the indictment, the trial court committed no error in the court's charge to the jury on the definition of child molestation. Weeks v. State, 316 Ga. App. 448, 729 S.E.2d 570 (2012).
Jury charge on voluntary intoxication in child molestation case.
- Trial court's charge on voluntary intoxication in a child molestation case was not an improper comment on the evidence under O.C.G.A. § 17-8-57, given evidence from all three complainants that defendant was drinking Wild Turkey bourbon and the victim's testimony that the victim believed defendant was drunk. Bright v. State, 301 Ga. App. 204, 687 S.E.2d 208 (2009).
Charges on lesser offenses of public indecency and contributing to delinquency of minor are not required where the uncontradicted evidence shows completion of the greater offense, child molestation. Morton v. State, 168 Ga. App. 18, 308 S.E.2d 41 (1983).
Charge on child molestation as lesser included offense of rape.
- Court's refusal to give defendant's requested charge on child molestation as a lesser included offense of rape was error requiring reversal of defendant's conviction for rape. Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988), cert. denied, 493 U.S. 1093, 110 S. Ct. 1170, 107 L. Ed. 2d 1072 (1990).
When the jury was only authorized to find defendant either guilty or not guilty of the rape charges and there was no evidence authorizing the jury to return a guilty verdict on child molestation as a lesser included offense of rape, the trial court did not err in refusing to give defendant's requested jury charge. Bailey v. State, 209 Ga. App. 390, 433 S.E.2d 610 (1993), overruled on other grounds, Walker v. State, 290 Ga. 696, 723 S.E.2d 894 (2012).
Sentence
No violation of due process.
- O.C.G.A. § 16-6-4 is neither impermissibly vague nor violative of due process. Veasey v. State, 234 Ga. App. 795, 507 S.E.2d 799 (1998).
O.C.G.A. § 16-6-4 does not violate due process for its failure to include a requirement that the state be required to prove that the defendant knew the victim was under age. Veasey v. State, 234 Ga. App. 795, 507 S.E.2d 799 (1998).
Sentence of 220 years to serve upheld but order of chemical castration unsustainable.
- Trial court properly sentenced defendant to 220 years to serve, followed by 20 years of probation, on 24 counts of sexual exploitation of a child, as such a sentence was within the statutory parameters and did not shock the appellate court's conscious in light of the crimes committed and, in fact, defendant was actually spared serving the maximum amount of prison time authorized by O.C.G.A. § 16-12-100(g)(1). However, the trial court erred by ordering defendant to undergo chemical castration under O.C.G.A. § 16-6-4(d)(2) since such punishment was only for defendants convicted of child molestation. Bennett v. State, 292 Ga. App. 382, 665 S.E.2d 365 (2008).
Split sentences.
- Trial court erred in sentencing the defendant on each of the defendant's three convictions for child molestation to a term of confinement rather than exercising the court's discretion and imposing split sentences of confinement and probation because the defendant had no prior conviction for child molestation. Watkins v. State, 336 Ga. App. 145, 784 S.E.2d 11 (2016).
Trial court's denial of the defendant's motion to vacate sentences for child molestation, aggravated child molestation, and incest was upheld because to apply the split-sentencing provisions to pre-2006 law would require the court to re-write applicable statutes to make them subject to statutory provisions that did not even exist at the time the statutes were enacted, which the court was prohibited to do without contravening the plain meaning of the statutory text. Bryson v. State, 350 Ga. App. 206, 828 S.E.2d 450 (2019).
Corrected sentence remained void because the trial court failed to impose a split sentence on the statutory rape and child molestation charges because those offenses were subject to the split sentence requirements, which required split sentences for each count. When the trial court resentenced the defendant in 2018, the court was still required to impose a split sentence on each count as required by the statute in effect at the time the defendant committed the crimes. Martinez-Chavez v. State, 352 Ga. App. 142, 834 S.E.2d 139 (2019).
Ex post facto violation in sentencing.
- Trial court erred in imposing life sentences as to two counts of aggravated sexual molestation because those sentences were ex post facto in application; the defendant was sentenced under a later version of the statute, O.C.G.A. § 16-6-4(d)(1), than the one in effect when the crimes were committed. Ewell v. State, 318 Ga. App. 812, 734 S.E.2d 792 (2012).
Sentence violated minimum sentencing requirements.
- In a child molestation case, the trial court erred in sentencing the defendant to 10 years to serve on Count 1 and probation on the remaining four counts, with the first 10 years to be served in confinement and the remainder to be served on probation, and the defendant's sentence was void because the defendant was not properly sentenced under the sexual offenders punishment statute as the sentence did not consist of a minimum term of imprisonment for child molestation, followed by an additional probated sentence of at least one year on each offense; no portion of the mandatory minimum sentence imposed could be suspended, stayed, or probated; and the trial court did not enter written findings necessary to deviate from the mandatory minimum. Brown v. State, 345 Ga. App. 622, 814 S.E.2d 738 (2018).
No Apprendi violation in sentencing.
- There was no Apprendi violation in sentencing a defendant on a child molestation conviction because the factors set forth in O.C.G.A. § 16-6-4(b)(2) described an exception to the baseline felony punishment and mitigated or decreased that punishment to the lower level of a misdemeanor if these facts were found during the sentencing hearing; the cases did not suggest that the jury must find mitigating facts which decreased the punishment for a crime. Kolar v. State, 292 Ga. App. 623, 665 S.E.2d 719 (2008).
Sentence within statutory range.
- Defendant's sentence on Count 2 of six years, to serve five, fell within the applicable statutory range of sentencing, according to the provisions of the law existing in 2003 and 2004, for a first offense of child molestation; thus, the defendant's sentence was legally authorized and not subject to review. Wilder v. State, 343 Ga. App. 110, 806 S.E.2d 200 (2017).
Sex offender registration required.
- Requiring a defendant who had been convicted of aggravated child molestation to submit to lifetime registration as a sex offender under O.C.G.A. § 42-1-12 did not exceed the maximum sentence allowed under O.C.G.A. § 16-6-4 as such registration was not a sentence or a punishment. Hollie v. State, 298 Ga. App. 1, 679 S.E.2d 47 (2009), aff'd, 287 Ga. 389, 696 S.E.2d 642 (2010).
Defendant's convictions for child molestation supported the trial court's requirement that the defendant register as a sex offender because the defendant's conviction constituted a conviction for criminal sexual conduct toward a minor and a dangerous sexual offense. Kruel v. State, 344 Ga. App. 256, 809 S.E.2d 491 (2018).
Cruel and unusual punishment.
- Habeas court properly ruled that an inmate's sentence of 10 years in prison for having consensual oral sex with a 15-year-old when the inmate was only 17 years old constituted cruel and unusual punishment in light of the 2006 amendments to O.C.G.A. §§ 16-6-4 and42-1-12. Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007).
Because the defendant was a teenager convicted only of aggravated child molestation under O.C.G.A. § 16-6-4, based solely on an act of sodomy, with no injury to the victim, involving a teenage partner two years younger, the teenager's sentence of 10 years without parole was cruel and unusual and was required to be set aside under Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007), without resentencing. Morris v. State, 300 Ga. App. 355, 685 S.E.2d 348 (2009), cert. denied, No. S10C0292, 2010 Ga. LEXIS 347 (Ga. 2010).
Trial court did not err in imposing or in refusing to reconsider the defendant's sentence of 20 years imprisonment for child molestation, with 15 to serve in confinement for statutory rape, because the defendant's sentence was within the statutory limits set by O.C.G.A. §§ 16-6-3(b) and16-6-4(b)(1); the defendant did not demonstrate that the defendant's sentence shocked the conscience. Gresham v. State, 303 Ga. App. 682, 695 S.E.2d 73 (2010).
Sentence did not constitute cruel and unusual punishment.
- Defendant failed to establish the threshold gross disproportionality inference needed to support a claim that the 10 year confinement sentence imposed on the defendant violated U.S. Const., amend. 8 and Ga. Const. 1983, Art. I, Sec. I, Para. XVII; the sentence was within the sentencing range in O.C.G.A. § 16-6-4(b)(1), the 2006 amendment to O.C.G.A. § 16-6-4(b)(2) did not apply to the defendant, so it did not provide a basis for any proportionality argument, and the evidence showed that the defendant engaged in sexual intercourse with a 12-year-old child without the child's consent, and Georgia's child molestation law punished acts that were far less severe. Bragg v. State, 296 Ga. App. 422, 674 S.E.2d 650 (2009).
Although the defendant contended that the sentence provided in the amendment to O.C.G.A. § 16-6-4(d)(1), which as a result of O.C.G.A. § 17-10-6.1 (b) was 25 years, followed by life on probation, with no possibility of probation or parole for the minimum prison time of 25 years, constituted cruel and unusual punishment in violation of the Eighth Amendment, the sentence was not grossly disproportionate to the defendant's crime since aggravated child molestation committed by the defendant was not a passive felony. Moreover, the juveniles had been tried as adults and sentenced to long periods of incarceration in Georgia, and severe punishments for crimes against children had withstood previous attacks on constitutional grounds. Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (2011).
Trial counsel was not ineffective in failing to object to the life sentence for aggravated child molestation as the defendant's sentence did not raise a threshold inference of gross disproportionality because the evidence established that the defendant, while engaged in sexual intercourse with a girlfriend, summoned the 14-year-old victim, who was working alongside other young women as a prostitute on the defendant's behalf, to the defendant's room and placed the defendant's sexual organ in the victim's mouth while the defendant's testicles were placed in the girlfriend's mouth. Pepe-Frazier v. State, 331 Ga. App. 263, 770 S.E.2d 654 (2015), cert. denied, No. S15C1105, 2015 Ga. LEXIS 412 (Ga. 2015).
Defendant's 20-year sentence for aggravated child molestation was not illegal or void because the sentence violated the Eighth Amendment as the defendant was not subject to one of the most severe punishments allowed by law, but rather to a sentence of a definite term of years. Richardson v. State, 334 Ga. App. 344, 779 S.E.2d 406 (2015).
Sentence imposed on revocation of supervised release.
- In a case in which a district court imposed a 60-month sentence on defendant following the revocation of defendant's supervised release, given the severe and egregious nature of the supervised release violation, which, under O.C.G.A. § 16-6-4(d)(1), carried a life sentence, the 60-month sentence was not unreasonable. Defendant pled guilty to aggravated child molestation and enticing a child for indecent purposes, and, under 18 U.S.C. § 3553(a), the district court concluded that the sentence was necessary to punish defendant adequately, to protect the public, and to deter future similar conduct. United States v. Williams, F.3d (11th Cir. Apr. 8, 2009)(Unpublished).
Defendant was properly sentenced for both sodomy and child molestation since the indictment as drawn charged defendant specifically with two separate and different sexual acts, and the child molestation was proved without any reference to the act of sodomy and was factually and legally distinct from sodomy. Garrett v. State, 188 Ga. App. 176, 372 S.E.2d 506 (1988).
Sentencing for child molestation and rape.
- In defendant's trial on charges of child molestation and statutory rape, the trial court did not err by imposing separate sentences for each crime because the evidence showed that defendant committed both crimes on multiple occasions. Little v. State, 260 Ga. App. 87, 579 S.E.2d 84 (2003).
Defendant's sentence to 20-year concurrent terms (10 to serve, 10 on probation), each, for aggravated child molestation and child molestation fell within the sentencing ranges under former O.C.G.A. § 16-6-4 for crimes committed between October 1992 and December 1994 and was not void. Reynolds v. State, 272 Ga. App. 91, 611 S.E.2d 750 (2005).
Mandatory child molestation sentence.
- Mandatory sentence for aggravated child molestation of 10 years without parole pursuant to O.C.G.A. §§ 16-6-4(d)(1) and 17-10-6.1 was not cruel and unusual punishment as applied to the defendant, despite the fact that the defendant was 18 years old at the time of the act and the victim was only 4 years younger. Widner v. State, 280 Ga. 675, 631 S.E.2d 675 (2006).
Defendants convicted of the rape and molestation of one defendant's step-daughter failed to show their separate counsel were ineffective; however, their sentences failed to include a split sentence as required by former O.C.G.A. § 17-10-6.2 and failed to include the five-year statutory minimum for child molestation under O.C.G.A. § 16-6-4(b)(1). The 2017 amendments to § 17-10-6.2 did not apply retroactively. Hardin v. State, 344 Ga. App. 378, 810 S.E.2d 602 (2018).
First offender consideration not appropriate.
- Because the defendant was not entitled to first offender treatment for the crimes of child molestation and enticing a child for indecent purposes, to which the defendant pled guilty, the defendant's claims that trial counsel was deficient for misinforming the defendant about the defendant's eligibility for and failing to request first offender treatment were without merit. Harris v. State, 325 Ga. App. 568, 754 S.E.2d 148 (2014), recons. denied, 2019 U.S. App. LEXIS 30410 (11th Cir. Ga. 2019), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).
Life sentences authorized.
- Life sentences imposed for aggravated child molestation were authorized by O.C.G.A. § 16-6-4, as the acts alleged occurred after the amendment authorizing life sentences. Cody v. State, 324 Ga. App. 815, 752 S.E.2d 36 (2013).
Chemical castration sentence unauthorized.
- Sentence of chemical castration was unauthorized for the defendant's convictions of, inter alia, rape and aggravated sodomy. Johnson v. State, 280 Ga. App. 341, 634 S.E.2d 134 (2006), overruled on other grounds by Kimbrough v. State, 300 Ga. 516, 796 S.E.2d 694 (Ga. 2017).
Sentence violated minimum sentencing requirements.
- After defendant was convicted on three counts of aggravated child molestation and nine counts of child molestation, the trial court erred as a matter of law in merging the three aggravated child molestation convictions into the child molestation convictions, thereby violating the minimum sentencing requirements under O.C.G.A. § 17-10-6.1(a). Graham v. State, 239 Ga. App. 429, 521 S.E.2d 249 (1999).
Trial court was required to impose a sentence for the defendant's child molestation conviction that included at least the mandatory minimum of five years to serve in prison plus at least one year of probation, or to issue a written order setting forth the court's reasons for imposing a sentence below the statutory minimum, but the defendant was sentenced only to probation on the child molestation count, and no written findings were made by the trial court to support the deviation from the mandatory minimum term of imprisonment; thus, the defendant raised a colorable claim that the defendant's sentence was void in the defendant's motion to a vacate a void sentence. Hood v. State, 343 Ga. App. 230, 807 S.E.2d 10 (2017).
Sentence not excessive.
- Sentence of defendant who was convicted of a single count of child molestation to 14 years confinement to serve seven years and the remainder probated was not excessive. Jones v. State, 247 Ga. App. 43, 543 S.E.2d 72 (2000).
Trial court's imposition of a 10-year probated sentence on a count of aggravated child molestation was null and void; O.C.G.A. § 16-6-4(d)(1) imposed a 10-year minimum sentence for the offense, and under O.C.G.A. § 17-10-6.1(b), because the offense was a serious violent felony, no portion of the 10-year sentence was to be probated. Priest v. State, 281 Ga. App. 89, 635 S.E.2d 377 (2006).
Increased sentence on retrial was not vindictive.
- Defendant's increased sentence after a retrial for child molestation was not vindictive because the sentencing court's rationale, which was the defendant's additional convictions of child molestation in a similar pattern of aligning himself with a young girl's mother, rebutted any presumption of vindictiveness, and the sentence was within the allowable range pursuant to O.C.G.A. § 16-6-4(b)(1). Frazier v. State, 302 Ga. App. 346, 691 S.E.2d 247 (2010).
Crimes involving different conduct did not merge for sentencing.
- Crimes contained in counts one and two did not merge for sentencing purposes because they involved different conduct, specifically, count one required proof that defendant kissed and sucked on the victim's neck, while count two required proof that defendant wrestled with the victim on a bed and removed the victim's underwear. Lunsford v. State, 260 Ga. App. 818, 581 S.E.2d 638 (2003).
Probation condition vague and overly broad.
- Probation condition requiring defendant not to be in the presence of a child under the age of 18 without the immediate presence of a supervisor could be applied to prohibit the defendant from shopping at any store without an approved supervisor, and as written could be applied in ways not related to sentencing objectives and therefore that condition of probation is vacated. Tyler v. State, 279 Ga. App. 809, 632 S.E.2d 716 (2006), cert. denied, No. S06C1818, 2006 Ga. LEXIS 810 (Ga. 2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Failure to advise defendant of requirement to register as sex offender.
- Trial court erred in denying the defendant's motion to withdraw the defendant's guilty plea to two counts of child molestation because the defendant's trial counsel failed to advise the defendant that entering a plea of guilty to child molestation would necessitate that the defendant comply with the requirements of the state's sex offender registry statute, O.C.G.A. § 42-1-12; the defendant was subject to the sex offender registration requirements at the time that the defendant entered into defendant's plea, the terms of the sex offender registry statute were succinct, clear, and explicit in setting forth the consequences of defendant's guilty plea, and defendant's trial counsel could have readily determined that defendant was required to register and conveyed that information to the defendant. Taylor v. State, 304 Ga. App. 878, 698 S.E.2d 384 (2010).
Good cause shown for extended period of supervised probation.
- Trial court did not err in sentencing the defendant to more than two years' supervised probation after a jury convicted the defendant of child molestation because the defendant's sentence to an extended period of supervised probation was pronounced after notice and hearing and for good cause shown as required by O.C.G.A. § 17-10-1(a)(2); the "good cause shown" was to protect children. O'Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010).
Sentences were well within statutory limits of O.C.G.A. § 16-6-4(b), and there was no reversible error because defendant voluntarily pled guilty to three counts of child molestation and there was no evidence that the trial court considered a presentence report or a medical exam in aggravation of punishment. Lynn v. State, 270 Ga. App. 867, 608 S.E.2d 542 (2004).
Sentencing of juvenile for sexual battery.
- Because the evidence established that the juvenile's act of sexual battery was committed against the victim, who was under the age of 16 years, felony punishment under O.C.G.A. § 16-6-22.1(d) was required and the juvenile was not entitled to a delinquency adjudication for child abuse since if the Georgia legislature intended to provide more lenient treatment for teenagers who commit sexual battery against another minor, the legislature could have amended the statute. In the Interest of P. T., 353 Ga. App. 511, 838 S.E.2d 596 (2020).
RESEARCH REFERENCES
Am. Jur. 2d.
- 42 Am. Jur. 2d, Infants, § 15 et seq. 50 Am. Jur. 2d, Lewdness, Indecency and Obscenity, §§ 15, 16.
Liability of School Districts Under Common Law Tort Theories for the Sexual Molestation of a Student by a Teacher, 31 POF3d 261.
C.J.S.- 43 C.J.S., Infants, §§ 193, 200 et seq.
ALR.- Assault with intent to commit unnatural sex act upon minor as affected by latter's consent, 65 A.L.R.2d 748.
Applicability of criminal statutes relating to offenses against children of a specified age with respect to a child who has passed the anniversary date of such age, 73 A.L.R.2d 874.
Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.
Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.
Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative source of child's ability to describe sex acts, 83 A.L.R.4th 685.
Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 A.L.R.5th 856.
Admissibility of expert testimony as to proper techniques for interviewing children or evaluating techniques employed in particular case, 87 A.L.R.5th 693.
Validity, construction, and application of state statutes prohibiting child luring as applied to cases involving luring of child by means of electronic communications, 33 A.L.R.6th 373.
Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 103 A.L.R.6th 507.
Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.
Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the United States after commission of felony offense, 68 A.L.R. Fed. 2d 55.