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Molestation Defendant Must Show How Inadequate Notice Harmed Defense

May 9, 2017

In Harris v. State, the Georgia Court of Appeals affirmed the defendant's child molestation conviction, finding held that the trial court did not abuse its discretion in admitting similar transaction evidence and child hearsay testimony.

The defendant was accused of molesting his girlfriend’s 7 and 8-year-old granddaughters. At trial, he was convicted of six counts of child molestation and his motion for new trial was denied.

On appeal, the defendant made several arguments that the trial court erred in admitting similar transaction evidence against him. The evidence consisted of testimony from the defendant’s sister, his niece, and his childhood neighbor regarding prior acts of molestation allegedly committed by him.

First, he argued that the State failed to give timely notice of its intent to introduce similar transaction evidence. The Court of Appeals held that the notice was proper and that, even if it was untimely, the defendant could not demonstrate how it harmed his defense.

Next, the defendant contended that the trial court should have excluded the similar transaction testimony of his sister because she was called to testify regarding alleged events from 44 years prior. The Court held that the trial court did not abuse its discretion because the testimony, though dated, was relevant to show the defendant’s sexual disposition towards preteen girls and his pattern of molesting young girls living with him.

The defendant also asserted that the trial court abused its discretion in permitting the alleged victims’ mother to testify about witnessing the defendant masturbate in his home on three separate occasions. The Court held that the testimony was relevant to show the defendant’s pattern of conduct, specifically, with respect to the children’s reports that he exposed himself through an open bedroom door while others were in the house.

Lastly, the defendant argued that the trial court erred in permitting the alleged victims’ 15-year-old brother to testify since the State had failed to provide notice under the Child Hearsay Statute. The Court found that the State substantially complied with the notice requirements under the statute by including the brother’s name on their witness list and including police reports in discovery that detailed the outcry that the brother was called to testify about.

The Court further found that the defendant failed to show how the lack of a formal notice that the brother’s testimony would be admitted as child hearsay harmed his defense.

This case thus establishes that the formal notice requirements contained in the Child Hearsay Statute may not necessarily need to be complied with. Defense attorneys need to be aware of this decision and not rely on the lack of notice as a means for excluding child hearsay testimony.

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