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GA Child Molestation Conviction Upheld Despite Improper Questioning by State

June 20, 2013

In Ogletree v. State, the Georgia Court of Appeals held that the State’s questioning of the defendant as to whether he visited a psychosexual behavior therapist was improper but did not likely contribute to the verdict.

Ogletree was indicted for committing six sexual offenses. Specifically, the indictment alleged that he had committed three counts of child molestation, two counts of enticing a child for indecent purposes, and one count of sexual battery.

Ogletree testified in his defense and, on cross-examination, the prosecutor asked him, “Now, you went to see the psychosexual behavior therapist –.” His defense attorney immediately objected. Outside the presence of the jury, the defense attorney asserted that the question called for improper character evidence and requested that the court declare a mistrial. The trial court sustained the objection but did not declare a mistrial. The defense attorney then withdrew an earlier request for a curative instruction, stating that he did not “want to bring it to [the jury’s] attention again.” On appeal, Ogletree contended that the prosecutor’s question was prejudicial in that it implied that he had seen a psychosexual behavior therapist because he had committed the offenses alleged in the indictment.

The Court of Appeals stated that where a prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. It also pointed out that the Court had previously held that an unanswered question is not grounds for a mistrial. Here, the State’s improper question was truncated by an objection, the objection was sustained, and the question was left unanswered. The State neither returned to the line of questioning nor alluded to it in closing arguments. The Court of Appeals also pointed out that while the trial court might have issued a curative instruction, defense counsel made a tactical decision not to have the jurors be reminded of the matter.

The Court stated that even assuming the question was improper, it would not warrant a reversal of Ogletree’s conviction. In order to reverse the conviction, the Court notes that there must be both error and harm. The strength of the State’s evidence in the case made it highly improbable that the improper questioning contributed to the verdict. The Court concluded that since the error was most likely harmless, it was not grounds for reversing the conviction.

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