In Welsh v. State, the Georgia Court of Appeals upheld Ontario Welsh’s conviction for two counts of child molestation despite the Court’s acknowledgement that the trial court incorrectly admitted child hearsay evidence.
According to evidence presented at trial, Welsh’s stepdaughter, R. F., alleged Welsh had molested her in 2005. R. F., who was 12 years-old at the time, told her mother that Welsh “messed with” her. Welsh admitted to both his wife and her brother-in-law that he had molested R. F. while he was intoxicated. Welsh was then taken to the police department where he gave a recorded confession.
Prior to trial, Welsh filed a motion to exclude the child hearsay statements of R.F. arguing that her statements to several witnesses lacked sufficient indicia of reliability (Click here for a discussion on these motions). Welsh also argued that R. F. subsequently recanted her statements and signed both a waiver of prosecution form and an affidavit stating she made up the allegations against her stepfather. The trial court denied the motion and admitted the child hearsay testimony.
At the conclusion of the State’s evidence, Welsh made a motion for a directed verdict arguing that the court violated his constitutional right to confront his accuser since the court admitted the victim’s hearsay statements but she was never called to the stand to testify. The court denied the motion. The jury found Welsh guilty on both child molestation counts and he was sentenced to serve 20 years on each count to run consecutively.
The Court of Appeals held that any violation of Welsh’s confrontation clause rights was harmless. Although Georgia case law, as set out recently in Hatley v. State, requires the State to put the alleged victim on the stand if child hearsay testimony is being offered, the Court noted that hearsay evidence that is admitted erroneously can be deemed harmless when the evidence is cumulative of other admissible evidence.
Here, although Welsh raised a valid confrontation clause objection, the Court found that the evidence against Welsh, especially his confessions to the crime, was overwhelming and cumulative of the inadmissible hearsay evidence.
This decision is of particular significance to Georgia criminal defense attorneys handling child molestation cases as a client’s statements to friends, family members, or the police can often be enough to render even substantial trial errors such as this one, harmless.
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