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Court Affirms Convictions Despite Vacating Two Molestation Counts

November 20, 2019

The Georgia Court of Appeals affirmed the defendant’s conviction for aggravated sexual battery but vacated convictions on two of the three counts of child molestation, finding that the evidence presented by the State with respect to those counts was insufficient.

In Chitwood v. State, the defendant was accused of molesting his six-year-old stepdaughter. Following an anonymous report to DFCS, the girl was interviewed and then taken for a sexual assault examination. According to the SANE nurse who conducted the exam, she observed a significant amount of redness on the girl’s labia as well as “irregularities” on her rectum. The defendant was arrested and later indicted for one count of aggravated sexual battery and three counts of child molestation.

At trial, the State introduced evidence of a prior allegation made against the defendant in 2008. An investigator from the Sheriff’s department testified that an allegation was made by the defendant’s 5-year-old cousin that he touched her private area under her clothes. As a result of that allegation, the defendant entered a guilty plea to the offense of sexual battery. The State introduced a certified copy of that conviction at trial.

At trial, the jury convicted the defendant on all four counts. On appeal, he argued that the evidence presented by the State was insufficient to support the convictions. The Court of Appeals agreed with respect to two of the child molestation counts.

In Count three of the indictment, the defendant was accused of child molestation for allegedly “exposing said child’s primary genital area.” At trial, the girl’s mother testified that she walked into the bedroom and observed the defendant lying in bed next to the child. She stated that the child “had her gown up” and that her underwear was pulled down. The child testified that, during the incident, her clothes were pulled up to her neck.

The Court pointed out, however, that there was no evidence presented at trial that the girl’s primary genital area had been exposed as charged in the indictment. During the trial, the prosecutor did not elicit any testimony regarding the manner in which the child was laying in the bed (i.e., on her back, on her stomach, etc.). Therefore, there was no evidence by which the jury could find that her genital area had been exposed.

Count four of the indictment charged the defendant with a separate act of child molestation for allegedly exposing his penis in the child’s presence. The testimony of the mother at trial was that when she entered the bedroom, she observed the defendant lying in the bed with his boxer shorts down. However, as the Court of Appeals noted, there was no testimony from her or any other witness that the defendant’s penis was exposed and that it was exposed in the child’s presence.

Based on the testimony that was presented with respect to these two counts, the Court held that the evidence was insufficient to establish the offenses of child molestation as they were alleged in the indictment. Therefore, the Court vacated the defendant’s convictions for these charges. The Court held that the evidence was sufficient with respect to the remaining charges.

The defendant also argued that the trial court erred in allowing the State to introduce the certified copy of his prior sexual battery conviction as prior act evidence since it failed to show on its face any similarities to the present case. The Court, citing to its prior decisions, held that the admission of the conviction was proper since “a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crime.”

The defendant also argued that his trial attorney was ineffective for failing to object to hearsay testimony from a sheriff’s deputy and a DFCS employee who both testified to statements made to them by the girl’s mother. With respect to these contentions, the Court held that even if the trial attorney’s performance was deficient for failing to make these objections, the defendant has not shown that there is a reasonable likelihood that the outcome of the trial would have been different. Therefore, the Court held that the defendant cannot establish his ineffective assistance of counsel claim.

As a result, the defendant’s convictions for aggravated sexual battery and one count of child molestation were affirmed.

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