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GA Child Molestation Conviction Upheld Despite Variance in Evidence

September 2, 2013

In Stephens v. State, the Georgia Court of Appeals upheld the defendant’s conviction for child molestation, rejecting the defendant’s contention that he should be given a new trial on the grounds that there was a variance between the State’s proof at trial and the allegations in the indictment.

Stephens was accused of taking his daughter to an abandoned house and sexually assaulting her. The victim told her mother, who called the police. The victim initially stated that Stephens had only touched her with his hands, but later reported to the officer investigating her case that she had been raped. Stephens was subsequently arrested and indicted. Following a jury trial, he was found guilty of child molestation. Stephens moved for a new trial on the grounds that the evidence did not support the verdict. Specifically, he argued that there was a variance between the act alleged in the indictment and the State’s proof at trial.

Under Georgia’s child molestation statute, a person commits the offense when he or she “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” The Georgia Court of Appeals has previously held that “if the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance…”

Stephens’ indictment alleged that he committed child molestation by “placing his hand on the victim’s female sex organ.” The Court of Appeals acknowledged that the victim did not specifically testify regarding an act as described in the indictment, but rather testified that he had forced sexual intercourse with her. The Court, however, pointed out that she did testify that Stephens cleaned her vaginal area with a towel after assaulting her. The Court then pointed to a prior decision which declined to hold that “evidence of skin-to-skin contact” was necessary to prove that the defendant had physical contact with the victim’s genital area as alleged in the indictment.

The State also presented the testimony of the victim’s mother, the police investigator, a forensic interviewer, and the physician’s assistant who examined the child after the assault. Each of these witnesses testified to statements made by the child pursuant to Georgia’s Child Hearsay Statute. These witnesses all testified that she initially stated that Stephens touched her vaginal area.

In light of the testimony of both the victim and the child hearsay witnesses, the Court of Appeals held that there was not a variance between the act alleged in the indictment and the State’s proof at trial. Thus, the Court held that the evidence was sufficient for a rational trier of fact to have found Stephens guilty beyond a reasonable doubt, and that the trial court did not err in denying his motion for a new trial.

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