Hunnicutt v

State, 194 Ga. App. 714, 391 S.E.2d 790, 1990 Ga. App. LEXIS 319 (1990) (decided under former O.C.G.A. § 24-3-16). 24-8-820 Child was considered “available to testify” under former O.C.G.A. § 24-3-16 only if the child was “competent” to testify within the meaning of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and 24-6-603). Shaver v. State, 199 Ga. App. 428, 405 S.E.2d 281, 1991 Ga. App. LEXIS 530 (1991), cert. denied, No. S91C1028, 1991 Ga. LEXIS 751 (Ga. May 15, 1991) (decided under former O.C.G.A. § 24-3-16). Availability of child for pretrial interview. — When the witness is a child, it is permissible for the legal custodian to decide whether the child will be made available to defense counsel for a pretrial interview. Kelly v. State, 197 Ga. App. 811, 399 S.E.2d 568, 1990 Ga. App. LEXIS 1480 (1990) (decided under former O.C.G.A. § 24-3-16). Defendant’s right to notice of statements before trial. — There was no requirement in former O.C.G.A. § 24-3-16 that the state provide the defense with pretrial notice of the state’s intention to introduce child hearsay statements in evidence. Schwindler v. State, 254 Ga. App. 579, 563 S.E.2d 154, 2002 Ga. App. LEXIS 335 (2002), cert. denied, No. S02C1230, 2002 Ga. LEXIS 677 (Ga. Sept. 6, 2002), cert. denied, 538 U.S. 1016, 123 S. Ct. 1935, 155 L. Ed. 2d 854, 2003 U.S. LEXIS 3533 (2003), overruled, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020), overruled in part, George v. State, 312 Ga. 801, 865 S.E.2d 127, 2021 Ga. LEXIS 679 (2021) (decided under former O.C.G.A. § 24-3-16). Evidence admissible although child available to testify. — In a prosecution for child molestation, hearsay evidence was admissible under former O.C.G.A. § 24-3-16 because the child was clearly available to testify, and the defendant did not challenge the existence of indicia of reliability. Trew v. State, 244 Ga. App. 76, 534 S.E.2d 804, 2000 Ga. App. LEXIS 633 (2000) (decided under former O.C.G.A. § 24-3-16). Child’s own statements about molestation were admissible under the child hearsay statute. Phillips v. State, 251 Ga. App. 179, 553 S.E.2d 847, 2001 Ga. App. LEXIS 960 (2001) (decided under former O.C.G.A. § 24-3-16). 241 Application (Cont’d) Tape recorded police interview with an eight year old female victim was properly admissible under former O.C.G.A. § 243-16 at defendant’s trial for child molestation. The child testified at trial and the defendant had the opportunity to cross examine the child regarding the child’s memory and the circumstances surrounding the child’s out-of-court statements, and the judge and jury had an opportunity to evaluate the child’s veracity. The police officer testified about the manner in which the child’s mother came to the officer and about the officer’s involvement in recording the interview. There was no evidence that the child was forced to make the child’s statements or that the child was coached regarding what to say. Hayes v. State, 252 Ga. App. 897, 557 S.E.2d 468, 2001 Ga. App. LEXIS 1395 (2001) (decided under former O.C.G.A. § 24-3-16). Although a trial court stated that a child witness would not testify at trial because the child kept crying, because the child was present and available to testify at trial, inadmissibility of the child’s hearsay statements was not present under former O.C.G.A. § 24-3-16; the judge’s comment that the witness would not testify was not an improper comment on the evidence under O.C.G.A. § 17-8-57. Brock v. State, 270 Ga. App. 250, 605 S.E.2d 907, 2004 Ga. App. LEXIS 1399 (2004) (decided under former O.C.G.A. § 24-3-16). Trial court did not abuse the court’s discretion in denying defendant’s motion in limine to exclude statements that the 13-year-old male child molestation victim made to the parents as such statements were admissible under former O.C.G.A. § 24-3-16 because sufficient indicia of reliability were established; the victim was present at trial and testified on direct examination as to why the victim initially denied the molestation when the victim was first confronted by the parents, and then why the victim finally admitted the molestation. Steverson v. State, 276 Ga. App. 876, 625 S.E.2d 476, 2005 Ga. App. LEXIS 1385 (2005) (decided under former O.C.G.A. § 24-3-16). Evidence presented at trial was sufficient to establish the reliability of the 24-8-820 statement that the child victim made to an aunt, and the trial court did not err in finding that the statement had the requisite degree of trustworthiness to be admitted at trial; moreover, admission of the statement was harmless because all the child victims testified about the incident at trial and the defendant was acquitted of an aggravated child molestation charge. Nelson v. State, 279 Ga. App. 859, 632 S.E.2d 749, 2006 Ga. App. LEXIS 704 (2006) (decided under former O.C.G.A. § 24-3-16). In the sexual molestation case, the trial court did not err in allowing into evidence the out-of-court statements of the sixyear-old victim via the parent’s hearsay testimony; the statements were admissible under former O.C.G.A. § 24-9-5 as the victim’s out-of-court statements were made under circumstances that provided sufficient indicia of reliability in that the statements were made immediately after the incident and remained consistent, and the victim testified at trial and was crossexamined. Mikell v. State, 281 Ga. App. 739, 637 S.E.2d 142, 2006 Ga. App. LEXIS 1237 (2006) (decided under former O.C.G.A. § 24-3-16). No abuse of discretion resulted from the admission of testimony from the investigating officer, the child victim’s mother, and the child victim’s sister, about the alleged child molestation committed by the juvenile as: (1) the child was available to testify; (2) cross-examination of the child victim in the judge’s chambers was attempted, but proved unsuccessful; and (3) the judge ruled that no further purpose would be served by having the child examined in the open courtroom. In the Interest of S.S., 281 Ga. App. 781, 637 S.E.2d 151, 2006 Ga. App. LEXIS 1255 (2006) (decided under former O.C.G.A. § 24-316). Defendant’s conviction for aggravated child molestation under O.C.G.A. § 166-4 was affirmed because the trial court did not err by admitting the victim’s prior out-of-court statement made in the initial interview with the police investigator, pursuant to O.C.G.A. § 24-8-820, that the victim believed that the bleeding from the victim’s vagina had been caused by the defendant. Robinson v. State, 342 Ga. 242 App. 624, 805 S.E.2d 103, 2017 Ga. App. LEXIS 390 (2017). Juvenile court did not err in allowing the foster mother to give hearsay testimony about statements the children made under former O.C.G.A. § 24-3-16 because the statements described acts of sexual contact performed with another person in the children’s presence and the children were physically in the courthouse and available to testify. In the Interest of A. S., 318 Ga. App. 457, 734 S.E.2d 225, 2012 Ga. App. LEXIS 938 (2012) (decided under former O.C.G.A. § 24-3-16). Recanting of child victim’s testimony. — Former O.C.G.A. § 24-3-16 did not require the child to corroborate the hearsay testimony, and conflicts between the videotaped statement and the testimony of the child at trial do not necessarily render the former inadmissible, but rather present a question of credibility of the witness to be resolved by the trier of fact; despite a child victim’s apparent recantation of the victim’s accusations of molestation at trial, sufficient evidence supported convictions of child molestation and aggravated child molestation after the victim described the molestation in a pre-trial videotaped interview, when an expert witness testified that children may recant testimony with regard to sexual abuse for reasons unrelated to falsity, including embarrassment and fear, and a doctor also testified that the doctor’s examination of the victim revealed “unusual” findings that would have caused the doctor to inquire regarding sexual abuse if the findings had appeared on a routine exam. Amerson v. State, 268 Ga. App. 855, 602 S.E.2d 857, 2004 Ga. App. LEXIS 1031 (2004) (decided under former O.C.G.A. § 24-3-16). Witnesses testified pursuant to former O.C.G.A. § 24-3-16 that the defendant’s stepchild, then 12, told the witnesses about being repeatedly raped and molested by the defendant. That the stepchild recanted these statements at trial did not render the hearsay inadmissible under former O.C.G.A. § 24-3-16, and as the stepchild’s credibility was for the jury to decide, the evidence was sufficient to support the defendant’s convictions for rape, incest, and child molestation. Har- 24-8-820 vey v. State, 295 Ga. App. 458, 671 S.E.2d 924, 2009 Ga. App. LEXIS 12 (2009) (decided under former O.C.G.A. § 24-3-16). Evidence admissible because victim took stand. — Direct testimony of the victim and out-of-court statements the victim made to others were admissible since the victim took the stand and was examined and cross-examined by both parties. Fields v. State, 194 Ga. App. 149, 390 S.E.2d 71, 1990 Ga. App. LEXIS 38 (1990) (decided under former O.C.G.A. § 24-3-16). Because a child victim testified of defendant’s sexual abuse and that defendant showed the victim “pictures or movies where people didn’t have any clothes on,” the trial court properly admitted the videotapes and determined that a psychotherapist’s testimony was admissible under former O.C.G.A. § 24-3-16; consequently, defendant failed to show that trial counsel was ineffective. Johnson v. State, 274 Ga. App. 69, 616 S.E.2d 848, 2005 Ga. App. LEXIS 671 (2005), cert. denied, No. S05C1834, 2005 Ga. LEXIS 696 (Ga. Oct. 11, 2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671, 2006 U.S. LEXIS 3611 (2006), overruled in part, Miller v. State, 285 Ga. 285, 676 S.E.2d 173, 2009 Ga. LEXIS 143 (2009) (decided under former O.C.G.A. § 24-3-16). In a case where a defendant was convicted of cruelty to children in violation of O.C.G.A. § 16-5-70, the trial court did not err in denying the defendant’s motion for a mistrial or in refusing to strike certain testimony because hearsay statements by the defendant’s daughter were admissible pursuant to former O.C.G.A. § 24-3-16 since the daughter was available to appear at trial and, in fact, took the witness stand. Stegall v. State, 297 Ga. App. 425, 677 S.E.2d 441, 2009 Ga. App. LEXIS 441 (2009) (decided under former O.C.G.A. § 24-3-16). Defendant denied right of confrontation. — Trial court erroneously and over objection allowed the state to ask defendant’s daughter, in a prosecution for child molestation and incest, whether she had heard her brothers tell her mother what defendant had done to them, as this evidence was hearsay and double hearsay 243 Application (Cont’d) not falling the exception of former O.C.G.A. § 24-3-16 because the brothers were not available to testify. Cobb v. State, 209 Ga. App. 708, 434 S.E.2d 513, 1993 Ga. App. LEXIS 981 (1993) (decided under former O.C.G.A. § 24-3-16). Defendant was not denied the right of confrontation, even though the defendant was unable to confront the victim when the victim’s statements were originally made since the victim actually testified at trial and was subject to a thorough cross-examination. Reynolds v. State, 257 Ga. 725, 363 S.E.2d 249, 1988 Ga. LEXIS 6 (1988) (decided under former O.C.G.A. § 24-3-16); Sticher v. State, 209 Ga. App. 423, 433 S.E.2d 660, 1993 Ga. App. LEXIS 929 (1993), cert. denied, No. S93C1666, 1993 Ga. LEXIS 1129 (Ga. Dec. 3, 1993) (decided under former O.C.G.A. § 24-3-16); White v. State, 213 Ga. App. 429, 445 S.E.2d 309, 1994 Ga. App. LEXIS 596 (1994) (decided under former O.C.G.A. § 24-3-16). When the victim had been called by the state and the defendant had an opportunity to cross-examine without having to call the victim to the stand, the application of former O.C.G.A. § 24-3-16 did not violate the defendant’s right to due process to confront the witness. Lawhorn v. State, 257 Ga. 780, 364 S.E.2d 559, 1988 Ga. LEXIS 44 (1988) (decided under former O.C.G.A. § 24-3-16). Child witness’s unresponsiveness to a number of questions as put by defendant did not constitute a deprivation of defendant’s constitutional confrontation right so as to require that the witness’s out-ofcourt statements be stricken since defendant was not denied the right to a thorough and sifting cross-examination of a witness who appeared to answer as well as the witness was capable of answering. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18, 1990 Ga. App. LEXIS 1497 (1990) (decided under former O.C.G.A. § 24-3-16). Defendant’s right to confront and crossexamine a child witness was protected in spite of the child’s unresponsiveness on cross-examination as to the merits of the 24-8-820 case brought against the defendant; the child’s unresponsiveness did not preclude the defendant from thoroughly cross-examining the child as to the veracity of hearsay statements made against the defendant’s interests by the child’s parents and the caseworker. Byrd v. State, 204 Ga. App. 252, 419 S.E.2d 111, 1992 Ga. App. LEXIS 840 (1992) (decided under former O.C.G.A. § 24-3-16). Hearsay testimony of an investigator was properly admitted under former O.C.G.A. § 24-3-16 as the trial court listened to the audiotape of an interview with a child and concluded there had been no excessive coaching or planting of information and that there was sufficient indicia of reliability; moreover, the child was available for cross-examination by defense counsel concerning the child’s claimed memory lapses and confusion, but counsel chose not to cross-examine the child. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587, 2006 Ga. App. LEXIS 1321 (2006) (decided under former O.C.G.A. § 24-3-16). Statements Admissible Transcript of forensic interview admissible. — In a prosecution for attempted child molestation, both the 10year-old victim and the forensic interviewer testified at trial, and both were subjected to cross-examination; therefore, a transcript of the forensic interview was admissible under O.C.G.A. § 24-8-820. Shaum v.