Cash v. State

• Court: Georgia Court of Appeals
• Writing for the Court: Adams
• Citation: Cash v. State, 669 S.E.2d 731, 294 Ga. App. 741 (Ga. App. 2008)
• Decision Date: 20 November 2008
• Docket Number: No. A08A1310.,A08A1310.
• Parties: CASH v. The STATE.

669 S.E.2d 731

294 Ga. App. 741

CASH v. The STATE.

No. A08A1310.

Court of Appeals of Georgia.

November 20, 2008.

Howard J. Weintraub, Atlanta, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

ADAMS, Judge.

Waltrant Cash was found guilty by a jury of aggravated child molestation. He appeals following the denial of his motion for new trial.

The victim, who was 16 years old at the time of trial and 15 years old when the incident giving rise to the charges was alleged to have occurred, testified that Cash was at that time married to her sister Courtney,¹ and that during the summer of 2004, he also became her track coach through the Villa Rica recreational department track program. The victim testified that the team was traveling to Savannah for their first track meet of the season and that she and about five of the other members of the team were spending the night at Cash's home so that they could leave from there the next morning.² The victim testified that her sister had gone to sleep in the bedroom and that the team members, who were sleeping on pallets on the living room floor, had fallen asleep but that she and Cash were still awake in the living room and watching television. The victim testified that at some point Cash asked her "to give him head." At first she refused, but ultimately agreed after he asked her four or five times so he would "leave [her] alone."

The victim testified she and Cash went down to the basement and Cash pulled his pants down and told the victim to put her mouth on his penis. The victim testified that she did as she was told. Afterward, Cash and the victim went back upstairs, the victim returned to the living room and Cash went to his own bedroom where Courtney was already sleeping.

The victim testified about another incident that occurred later in the summer when the team traveled to Iowa for the National Junior Olympics. The victim testified that Cash and his brother accompanied the team on that trip and that she shared a room with them. She testified that one day when Cash's brother was not there, Cash again told her to "give him head." At first she refused, but he threatened to hit her so she did what he asked.

The victim testified that several months after the trip Cash came to her school and got her out of class to talk to her. He told her that he and Courtney had separated, that Courtney and their child were going to be living at the victim's house with her family, and that the victim "better take care of his child because [her sister] wasn't a good enough mom to do it." He also asked the victim not to tell anybody about what had happened between them.

The victim testified that several months after the Iowa incident, and after Cash and Courtney had separated, she went out on a call with her father, who was a driver for a wrecker service, and he commented that something seemed to be wrong with her and asked her what it was. The victim then told him about the Iowa incident but not what had occurred in Cash's home before the Savannah track meet.

The victim's father also testified. He testified that the victim went with him one night when he was out on a call and that he asked her what was bothering her because she had not been her usual cheerful and loving self. He testified the victim did not tell him any specifics but told him something had happened in Iowa and that they would talk later. They returned home and the victim told her father and her mother about "some things" that had happened on that trip. Her father asked her to tell them "something about [Cash] that none of us should know about, and she described him from the waist down[,] what he looked like." The victim's father testified that he first contacted officials in Carroll County about these allegations and then contacted the authorities in Iowa.

Captain Brian Camp, the commander of criminal investigations in the Villa Rica Police Department, also testified. Camp testified that on September 13, 2004, the department received a request from the police department in Des Moines, Iowa asking for their assistance in gathering information on a complaint concerning sexual allegations against Cash that they had received from the victim's father. Camp testified, over a hearsay objection, that he interviewed the victim and that she told him that Cash had forced her to perform oral sex on him while they were in Iowa.

Camp testified that he next interviewed Cash, who denied the Iowa incident. Camp then talked to the victim again, who made the same general allegations, although with a few differences in the surrounding circumstances, concerning the sexual assault in Iowa. Following this interview, Camp spoke with Cash again, who again denied all sexual contact with the victim and told Camp that he thought the victim's father was "making all this up to keep him from being able to get custody of [his] child."

Cash came to Camp's office again on October 12, 2004, to undergo a polygraph examination. Both Camp and the polygraph examiner, Morris Nix, testified that prior to the polygraph being administered, Cash made the statement that the victim had performed oral sex on him at his home in Carroll County about eight to nine months prior to that time. This statement was not reduced to writing. Camp testified that he then contacted the Carroll County sheriff's department concerning the investigation since Cash's residence was outside the Villa Rica city limits and thus not in his jurisdiction.

Diane Henderson, an investigator with the Carroll County Sheriff's Department, also testified. Henderson interviewed first the victim and then Cash. Both interviews were recorded and played for the jury. In her interview, the victim told Henderson about the incident the night before the Savannah track meet and about the incident in Iowa. Henderson then interviewed Cash about these incidents and he denied that either of them occurred. He also stated that he believed these allegations had been made against him because of issues stemming from his divorce from Courtney. He told Henderson that he was having health problems and also felt like he was under pressure to make an admission the day the polygraph was scheduled.

Courtney also testified. She said that after they separated Cash admitted that something had happened between him and the victim at their house. She testified that after his arrest he told her this did not happen but he thought it was what she wanted to hear, and if she thought he was being truthful with her, she might forgive him and take him back.

Two members of the track team who spent the night at Cash's house the night before the Savannah track meet also testified. According to their testimony, the team members were watching movies, and the victim was the first one to fall asleep in the living room after the movie was over. The witnesses testified that they were still awake when Cash and Courtney went to bed together in their bedroom. One of them specifically testified that Cash never came back out of the bedroom that night, except to "poke[] his head" out to tell everyone to go to bed around midnight or 1:00 a.m.

Cash denied the charge against him, and testified that he only made the statement to Camp and Nix after Nix had "[b]asically hounded me for 30, 40 minutes" to "tell the truth" and "go ahead and admit that you did something." He testified that he told Camp and Nix that the victim had performed an act of oral sodomy on him about eight to nine months previous. He said he made this statement although it was not true, because he "was positive" they were going to send him to jail because they had not done the things they had told them they would do to investigate the Iowa allegation to see if it was true. Cash testified he told the officers the assault occurred here because he did not want to be extradited to Iowa to face charges since he would not be able to see his daughter there. He testified that he subsequently denied the charges to Henderson when he realized the exact nature of the charges against him, and that he gave her the name of all the people at his house that night and told her that it would have been impossible for the incident to have occurred given the circumstances.

Cash also testified that the victim was the first to fall asleep that night and that he and his wife and child went to bed after the victim fell asleep but while the rest of the track team members were still awake. He testified that at one point he opened his bedroom door and told the team members who were still awake to go to sleep but that he never came back out of his bedroom that night.

Cash contends that the trial court erred by finding that the victim's out-of-court statements were admissible under the Child Hearsay Statute because the victim was over 14 years of age at the time the statements were made. OCGA...