O.C.G.A. § 16-6-4 (2019)

Annotations

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 of-

fender 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 DECISIONS ANALYSIS GENERAL CONSIDERATION INDICTMENT APPLICATION EXPERT TESTIMONY MERGING WITH OTHER OFFENSES JURY ISSUES AND INSTRUCTIONS SENTENCE 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 punish-

ment. 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, and 16-6-5 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 and 16-6-4, 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). 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 irrele-

General Consideration (Cont’d) vant. 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 allega-

tions 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 and 16-6-4(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

General Consideration (Cont’d) 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 irrel-

evant 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;

General Consideration (Cont’d) 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). 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) and 17-3-2.1(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

General Consideration (Cont’d) 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 inef-

fective 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 ver-

dict 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

General Consideration (Cont’d) 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) and 16-6-5, 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) and 16-6-4(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); 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); 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). 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,

Indictment (Cont’d) 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 testi-

Application (Cont’d) mony 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). Evidence of the victim alone was suffi-

cient 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

Application (Cont’d) 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 ner-

vous 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 suf-

ficient 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) and 16-6-22(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). 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) and 16-6-4(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).

Application (Cont’d) 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).

Application (Cont’d) 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, and 16-6-5.1, 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 chil-

dren, 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).

Application (Cont’d) 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). 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 and 5-5-21 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

Application (Cont’d) 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 and