Legal Blog

Georgia Molestation Conviction Upheld Despite Child’s Recantations

January 14, 2013

In Lopez v. State, the Georgia Court of Appeals held that a child’s prior statements involving allegations of sexual abuse were sufficient to authorize a conviction despite the fact that the child recanted these allegations both before and during the trial.

Raul Lopez was convicted of aggravated child molestation, rape, and child molestation in Gwinnett County Superior Court. At trial, the 8 year-old child testified that she recalled speaking with a school counselor and police officers about Lopez, but she could not remember what she told them. Upon further probing, she said she remembered telling these adults that Lopez had done something to her, but that these statements were lies a friend told her to say.

After the child’s testimony, the state called several other witnesses with knowledge of the child’s original allegations. The elementary school counselor who first heard the child’s accusations testified that the child voluntarily offered information about inappropriate touching. First, the child stated that someone had touched her “butt” on the school bus. Then, once in the counselor’s office, the child stated that Lopez had touched her “biscuit” and put “his biscuit on and in her biscuit.” The child also demonstrated on her own body and using the counselor’s dolls how Lopez allegedly touched her on the front area of her private parts. A child protective services investigator as well as a police officer testified that the child retold these allegations of abuse during interviews.

Several days after his arrest, Lopez received a call from the child apologizing for lying about him. She later gave a taped statement at the police department recanting her story about being sexually abused. The child also sought out her school counselor and apologized for lying. She said her younger brother was actually the one who had sexually abused her. The girl also told the district attorney’s office that she lied to her counselor because a girl told her to. Despite these issues, the jury still convicted Lopez.

On appeal, the Court rejected Lopez’s argument that the child’s recantations rendered the evidence insufficient to convict him. The Court ruled that the child’s prior statements about the alleged abuse, although inconsistent with her trial testimony, could be admitted as substantive proof of Lopez’s guilt.

It is quite concerning that despite the multiple issues with the child-victim’s testimony in this case, the Court still affirmed Lopez’s convictions. Almost the entire case against Lopez stemmed from the child’s statements to others alleging abuse. Rather than give equal weight to her subsequent repeated recantations to those same adults, the trial court judge was content to leave the question of credibility to the jury. With such a substantial amount of doubt as to Lopez’s guilt, it is hard to believe that the Georgia Court of Appeals affirmed his conviction.

Our firm did not handle Lopez’s defense, and we were not involved in the appeal, so unfortunately we are not aware of what was done to investigate and prepare Lopez’s case for trial. We are also unaware as to whether experts were retained to testify on Lopez’s behalf regarding the reliability of the initial allegations of abuse. It is cases like these that expose the absolute need to thoroughly investigate and prepare every­ case for trial—regardless of how weak the State’s case may seem.

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