In Prophitt v. State, the Georgia Court of Appeals reversed the defendant's child molestation conviction finding that the evidence was insufficient to establish that the alleged act was committed in the presence of the child.
The indictment charged the defendant with one count of child molestation and alleged that he masturbated while watching a child take a shower through a hole in the bathroom floor. It was alleged that this was an immoral and indecent act committed in the presence of the child.
The issue here is whether the defendant, who was located underneath the house where the child was showering, was in the presence of the child at the time he engaged in the immoral or indecent act.
The Court noted that this issue has been addressed in several prior cases where a defendant was masturbating in the same room as the child, and in another case where a defendant masturbated in front of a window where the child observed him from about 100 feet away. In all of these cases, the Court found that the defendant was sufficiently in the presence of the child to establish the commission of the molestation offense.
However, the Court then pointed out that unlike any of these cases, the defendant and the child in this case were not in the physical presence of each other. The child was unaware that the defendant was observing her and that he was engaging in sexual conduct while doing so. The Court concluded that under these circumstances, the defendant was not in the child’s presence at the time he engaged in the alleged acts.
The Court stated that for child molestation to occur, the accused and the child must be together at the time of the alleged offense. For them to be together, they must be in the same location. The Court then held that this means that they “must be in close enough physical proximity that they each would at least have the opportunity to observe the other — regardless of whether the child actually does observe the defendant’s conduct.”
As a result of the fact that the child in this case could not have been able to observe the defendant, the Court of Appeals held that the defendant’s conviction for child molestation must be reversed.
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