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Photos of Sleeping Child Did Not Constitute Molestation

February 9, 2021

Since the Court of Appeals found that the evidence was sufficient to convict on some of the counts, the State will be permitted to retry the defendant.

In Rice v. State, the Defendant was convicted at a bench trial of seven counts of child molestation, two counts of sexual exploitation of children, and three counts of invasion of privacy. The Georgia Court of Appeals reversed his convictions, holding that the evidence was insufficient as to many of the counts and that the trial court abused its discretion in excluding evidence regarding the defendant’s wife’s occupation.

Was the Evidence Sufficient to Convict?

First, the defendant claimed there was insufficient evidence to convict him of several of the charges in the indictment.

On appeal, the court reviews the evidence in a light most favorable to support the verdict. That’s because the defendant is no longer presumed to be innocent. The court also doesn’t examine the credibility or weight of the evidence on appeal. It only reviews whether the evidence was sufficient for a rational judge or jury to convict.

When it comes to deciding if the defendant’s conduct meets the crime’s statutory definition, an appeals court construes the statute strictly against criminal liability. When the language of a statute can be interpreted in more than one way, the court is bound to adopt the view that is most favorable to the defendant.

The Child Molestation Convictions

Most of the counts of child molestation were based on the defendant allegedly taking photos of his children while they were sleeping. Though they were mostly clothed, a special agent with the Department of Homeland Security testified that the images were suggestive and indicative of sexual exploitation.

The appeals court disagreed with the trial court and found that the defendant’s actions in taking these photos did not constitute the offense of child molestation under the statute and reversed his convictions on these counts. The court noted that there is no legal authority or basis to find that taking pictures of your sleeping children can constitute an act of child molestation.

The Sexual Exploitation Convictions

With respect to the sexual exploitation convictions, the defendant argued that the images did not depict the lewd exhibition of the children’s genitals and thus did not constitute child pornography under the statute. However, the appeals court held that the photos satisfied the criteria for sexual exploitation of a child under OCGA §16-12-100(a)(4). The court noted that, although the children were sleeping in the photos, the children’s underwear were pulled down, exposing their bottoms. It concluded that their exposure and positions in bed were sufficient to affirm the trial court’s finding that the exhibition of the genitals was lewd.

The Invasion of Privacy Convictions

The defendant was charged with invasion of privacy for taking these photos of his children while they were sleeping. To be convicted of invasion of privacy under OCGA §16-11-62, the prosecution must show that the children depicted:

  • Had a right to privacy in their bedroom; and
  • Did not consent to the photos being taken.

The appeals court found that the prosecution failed to prove both of these factors and overturned the convictions. The court explained that the girls were sleeping in a bedroom that they shared with their parents and neither of them testified at trial that the pictures were taken without their consent.

Trial Court Should Not Have Excluded Evidence

The defendant argued that the trial court committed reversible error by granting the State’s motion to exclude evidence concerning his wife’s occupation. This was critical at trial because his only defense was that his wife committed the alleged crimes.

The defense sought to introduce evidence that the defendant’s wife was a “cam girl,” which means she had an internet-based business where she would perform sexual acts for money via a web camera. He claimed that she had both the opportunity and sophistication to commit the crimes.

Defendants are permitted at trial to offer evidence that someone else committed the crimes they are charged with if the evidence:

  • Directly connects the other person with the offense; and
  • Tends to show that the defendant is innocent.

The appeals court concluded that the evidence regarding the defendant’s wife’s occupation satisfied both of these factors. It held that the trial court erred by denying the defense the opportunity to use this evidence on cross-examination of the wife at trial. The court found that the error was so prejudicial to the defense that the defendant’s convictions on the remaining counts must be reversed.

Polygraph Test Results

The defendant also argued that the trial court erred in excluding the results of his unstipulated polygraph test. As the appeals court correctly noted, under Georgia law, results of a polygraph examination are only admissible if the parties expressly stipulate to its admission. Because the test was an unstipulated one, it was not error for the trial court to exclude it at trial.

The State Can Retry Some of the Charges

Since the Court of Appeals found that the evidence was sufficient to convict on some of the counts, the State will be permitted to retry the defendant. However, double jeopardy will prohibit a retrial on any of the counts for which the evidence was found to be insufficient to convict.

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