Court Finds Evidence of Molestation Insufficient to Revoke Probation

The record showed that in November of 2010, the defendant was sentenced to one year to serve and four years of probation for theft by shoplifting. In August of 2012, the State filed a petition to revoke the defendant’s probation, alleging that he had committed the offense of child molestation.

At the revocation hearing, the defendant’s brother testified that he was babysitting a four year-old boy when he walked into the living room and saw the child’s head between the defendant’s legs. The brother testified that the boy could have been sleeping. The State asked the brother if he remembered writing a statement in which he told police that according to the boy, the defendant told the boy to “put it in his mouth.” The trial court sustained defense counsel’s objection to the statement as hearsay. On cross-examination, the brother testified that the defendant and the child were asleep on the couch fully clothed, and that “nothing bad happened.”

According to O.C.G.A. § 42-8-34.1(b), a “court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” To establish the offense of child molestation, the State had the burden to prove that the defendant did an “immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

The Court held that the non-hearsay evidence presented at the hearing only showed that the defendant was asleep on a couch, fully clothed, with a fully clothed child laying on his lap. The Court held that, as the State conceded, this evidence did not show by a preponderance of the evidence that the defendant committed the offense of child molestation. Thus, the Court concluded that the trial court abused its discretion in revoking the defendant’s probation.