Court of Appeals Finds Evidence Sufficient in Molestation Case

The defendant was accused of watching a pornographic video and masturbating in the presence of a child. On appeal, the defendant argued that the evidence was insufficient because the child had closed his eyes when the defendant pulled out his penis. The Georgia Court of Appeals held that the State was not required to prove that the child saw the indecent act as long as it was done in the child’s presence. The Court concluded that there was ample evidence from which the jury could infer that it was done in the child’s presence.

The defendant also asserted claims of ineffective assistance of counsel contending that his trial attorney was deficient in failing to object to evidence that improperly bolstered the alleged victim’s testimony. Specifically, he argued that his attorney was ineffective for failing to object to the playing of the alleged victim’s forensic interview and testimony of statements the child made to his mother and father. The Court found that the evidence was admissible under the Child Hearsay Statute, so the defendant’s trial counsel was not deficient for failing to object.

The defendant also argued that his trial counsel was ineffective for advising him not to testify. At the motion for new trial hearing, the defendant’s trial attorney testified that he advised his client not to testify because it may have opened the door for the State to introduce a previously suppressed, but incriminating, custodial statement. On this basis, the Court found that trial counsel’s advice was not unreasonable.

As a result, the Court affirmed the defendant’s child molestation convictions.