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Georgia Court of Appeals Sustains Demurrer in Molestation Case

November 3, 2015

In Herring v. State, the Georgia Court of Appeals held that the indictment charging the defendant with 8 counts of incest, child molestation and aggravated sodomy was defective as the State failed to show that it was unable to more narrowly set out the range of dates on which the offenses were alleged to have been committed.

The defendant filed a special demurrer to quash the indictment on the grounds that the State failed to sufficiently narrow the range of dates for the alleged offenses. The trial court overruled the demurrer and the defendant proceeded with an interlocutory appeal.

On appeal, the Court explained that since the appeal was interlocutory, the standard of review is whether the indictment is perfect in form and substance—as opposed to a harmless error analysis which would be applicable after conviction.

The Court began its analysis of this indictment by noting that, generally, an indictment which does not allege a specific date is imperfect in form. The Court has carved out an exception to this general rule though if the State can show that the evidence does not permit it to allege a specific date. This occurs often in child molestation cases where a child is unable to precisely state when an incident occurred.

In this case, the Court of Appeals found that the State actually was able to allege specific dates as to counts 3 and 4 of the indictment. Specifically, the alleged victim had told an investigator precise dates on which the incidents occurred with respect to these counts. The evidence, therefore, showed that the State could reasonably narrow the range of dates on those two counts.

As a result, the Court reversed the trial court’s decision and held that the special demurrer should have been sustained with respect to these counts of the indictment.

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