McCoy v. State
| Decision Date | 03 January 1990 |
| Docket Number | No. A89A1743,A89A1743 |
| Citation | 194 Ga.App. 244,390 S.E.2d 251 |
| Parties | McCOY v. The STATE. |
| Court | Georgia Court of Appeals |
Bailey & Bearden, J. Lane Bearden, Calhoun, for appellant.
Darrell E. Wilson, Dist. Atty., Mickey R. Thacker, Asst. Dist. Atty., for appellee.
The appellant brings this appeal from his conviction of child molestation. Held:
1. The appellant contends that the trial court erred in denying his motion for directed verdict of acquittal. The evidence showed that during an episode of "play fighting" with the victim, the appellant placed the victim's shirt in her mouth, restrained her, and fondled her vagina. The victim struggled with the appellant, broke free from him, and immediately told her younger sister what had transpired. Later that same day, the victim reported the incident to her mother. She was thereafter examined by an emergency room nurse, who observed that the child's vaginal area was inflamed and that she had a two-inch bruise on her left hip. We conclude that, from the evidence as a whole, a rational trier of fact could have determined beyond a reasonable doubt that the appellant was guilty of child molestation. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We consequently hold that the trial court did not err in refusing to direct a verdict of acquittal.
2. The appellant enumerates as error the admission of evidence that he had twice pinched the victim on her breast prior to the act of molestation for which he was on trial. He contends that the state failed to notify him, in accordance with Rule 31.3 of the Uniform Superior Court Rules, of its intention to introduce such evidence. Assuming arguendo that the admission of this testimony was improper, we conclude that in the context of the other evidence in the case it was harmless, i.e., that it is "highly probable" the evidence did not contribute to the verdict. See Minter v. State, 258 Ga. 629(2), 373 S.E.2d 359 (1988).
3. The appellant enumerates as error the admission of testimony from various witnesses regarding out-of-court statements made by the victim, contending that this evidence violated his due process right of confrontation and improperly bolstered the victim's in-court testimony.
"Pursuant to OCGA § 24-3-16, a statement made by a child under the age of 14 to another concerning sexual contact or physical abuse is admissible if the child is available to testify and the court finds sufficient indicia of reliability in the statement." Morgan v. State, 189 Ga.App. 795, 796(1), 377 S.E.2d 707 (1989). It is well settled that the admission of such evidence under these circumstances does not violate the constitutional right of confrontation "if the witness...
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...right of confrontation 'if the witness testifies at trial and is subject to cross-examination.' [Cit.]" McCoy v. State, 194 Ga.App. 244(3), 390 S.E.2d 251 (1990). Appellant contends the trial court deprived him of the opportunity to cross-examine the witness on certain allegations made in t......