Prior Conviction Improperly Admitted in Molestation Case

The defendant was charged with molesting his twelve-year-old niece. At a pretrial hearing, the court determined that the State could introduce evidence of the defendant’s prior guilty plea to a charge of aggravated criminal sexual abuse in Illinois.

On appeal, the defendant argued that the trial court erred in admitting his prior conviction because the State failed to prove that the prior offense constituted a crime in Georgia. The Court of Appeals agreed, noting that the State only introduced the indictment, not the factual basis for the plea. The Illinois indictment did not include the age of the victim and did not require lack of consent as an element of the offense.

In order to constitute a crime in Georgia, it must be shown that the prior offense involved either a child under the age of 16 or lack of consent. The indictment itself, however, established neither of these. The Court then held that the trial court erred in admitting the conviction, which was not harmless, because the Court reasoned that it was likely, given the purely testimonial evidence of the case, the conviction contributed to the jury’s verdict. As a result, the Court reversed the defendant’s convictions and remanded the case for a new trial.

The defendant also contended that the trial judge improperly commented on the evidence by stating, “I can’t buy it. There’s no evidence of it.” when the State objected in closing argument to defense counsel’s theory that the victim had been taught to lie by her half-sister.

The Court noted that this could be viewed by the jury as an indication that the judge believed the alleged victim was telling the truth. Such a comment would be impermissible under O.C.G.A. § 17-8-57 which provides that “[i]t is error for any judge…to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.” Therefore, the Court cautioned the trial judge from making comments such as this at the defendant’s retrial.