In Laster v. State, the Georgia Court of Appeals reversed the defendant’s conviction for sexual battery against a child under 16 due to the trial court’s erroneous jury instruction that a child under 16 lacks the capacity to consent to sexual conduct.
However, the Court affirmed the defendant’s conviction for child molestation, ruling that the trial court did not err in admitting child hearsay testimony.
At trial, the facts showed that the 13-year-old girl’s stepfather found sexually explicit text messages from the defendant including one that stated the defendant was the only one who could touch the girl’s “Hello kitty spot.” When questioned, the girl stated that the defendant had kissed her and touched her chest, buttocks, and vagina multiple times over a period of months. She said that the 29-year-old defendant was her boyfriend.
Two “love letters” from the defendant were also admitted into evidence, along with the testimony of the girl’s aunt, her mother and the investigating detective.
On appeal, the defendant argued that the trial court erred in overruling his objections to the testimony of the aunt, mother and detective. He contended that their testimony improperly bolstered the girl’s credibility before her credibility had been brought into question. The Court of Appeals affirmed, noting that the Child Hearsay Statute permitted such testimony regardless of when the girl’s credibility was challenged.
The defendant also asserted that the trial court erred in instructing the jury that with respect to the sexual battery charge, a child under 16 lacks the legal capacity to consent to sexual conduct. The Court agreed. Though this was a correct statement of the law at the time of the defendant’s trial, the Georgia Supreme Court subsequently held in Watson v. State, 297 Ga. 718 (2015) that the offense of sexual battery required “actual proof of the victim’s lack of consent” regardless of the victim’s age.
The Watson decision was controlling because the defendant’s case was in the appellate “pipeline” at the time of the decision. Under the ruling in Watson, the trial court’s instruction relieved the State of having to prove the lack of consent, which the Court could not say was harmless to the outcome.
As a result, the Court reversed the defendant’s conviction for sexual battery.
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