Coxwell v. State, A90A0684
| Decision Date | 25 May 1990 |
| Docket Number | No. A90A0684,A90A0684 |
| Citation | 395 S.E.2d 38,195 Ga.App. 751 |
| Parties | COXWELL v. The STATE. |
| Court | Georgia Court of Appeals |
Robert M. Boulineau, Milledgeville, for appellant.
Joseph H. Briley, Dist. Atty., Alberto C. Martinez, Jr., Asst. Dist. Atty., for appellee.
The appellant was convicted of child molestation. He brings this appeal from the denial of his motion for new trial. Held:
1. The appellant contends that the trial court erred in refusing to declare a mistrial in response to the following remarks made by the state's attorney during his opening statement: The appellant contends that these remarks resulted in a violation of his rights under Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987), which holds that where the Child Hearsay Statute, OCGA § 24-3-16, is invoked to introduce out-of-court declarations made by the alleged victim and either party desires to cross-examine the child, the court shall "inform the jury that it is the court who has called the child," in order to avoid the possibility that the jurors might "resent the defendant for forcing the child to take the stand and undergo cross-examination." Id. at 299, 357 S.E.2d 562.
In response to the appellant's motion for mistrial, the judge informed counsel that if the victim were called to testify he would instruct the jury that she had been called as a witness by the court. The appellant did not thereafter renew his motion, and there was no request by either party that the child be called as a witness. See Brown v. State, 187 Ga.App. 347(1), 370 S.E.2d 203 (1988). Consequently, we find this enumeration of error to be without merit.
2. In an attempt to prove that the child had fabricated the allegations upon which the indictment was based, the appellant sought to introduce evidence that she and her mother had, on a previous occasion, falsely accused another person of child molestation. Following an evidentiary hearing conducted outside the presence of the jury, the trial court excluded this evidence on the ground that it had not been shown that there was a "reasonable probability" that the prior accusation had in fact been false. See Smith v. State, 259 Ga. 135, 377 S.E.2d 158 (1989). We agree and consequently find this enumeration of error to be without merit.
3. The appellant contends that the trial court erred in allowing a social worker employed by the Department of Family & Children Services (DFCS) to state her opinion on the ultimate issue of whether the child had been sexually molested. The witness testified that her job was to investigate reports of child abuse and stated that she had received training in interviewing young children and in observing behavioral characteristics and traits common to sexually molested children.
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