In Underwood v. State, the Georgia Court of Appeals affirmed the defendant’s convictions for two counts of child molestation but vacated the sentence because the trial court failed to impose a split sentence.
The defendant was accused of molesting his step-granddaughter. At trial, the defendant denied the allegations and testified that he suffered from significant medical conditions that resulted in him having no sexual desires and erectile dysfunction. He sought to call his estranged wife to testify in his defense and confirm these claims.
The trial court, however, advised her that she had the right to invoke the marital privilege and refuse to testify. As a result, she invoked the privilege and declined to take the stand at trial.
On appeal, the defendant argued that the trial court erred in permitting the estranged wife to invoke the marital privilege since (1) the privilege did not apply because the case involved the alleged abuse of a minor, and (2) he and his wife were separated at the time of the trial.
Under O.C.G.A. § 24-5-503, Georgia’s marital privilege statute, the privilege does not extend to any case in which the spouse is charged with an offense against a child under the age of 18. However, the statute provides that in these cases, the spouse can only be compelled to give testimony concerning “the specific act for which the accused is charged.” The trial court concluded that testimony concerning the defendant’s medical conditions was not related to the “specific act” charged in the indictment.
The Court of Appeals declined to rule on whether this was a proper exercise of the marital privilege. Rather, it found that any error stemming from the trial court’s advisement to the defendant’s wife that she could invoke the privilege was in fact harmless because the testimony would have been cumulative of the defendant’s own testimony. Further, the Court noted that the testimony would not have negated an element of the offense because child molestation does not require evidence of the defendant’s actual arousal.
The Court affirmed the defendant’s child molestation convictions, however, it held that the defendant’s sentence of 12 years in prison was improper because it was not a split sentence, with at least one year of probation as required under Georgia law. As a result, the case was remanded to the trial court for resentencing.
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