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“Truth or Dare” Leads to Child Molestation Conviction

October 30, 2014

In Harris v. State, the Georgia Court of Appeals affirmed the defendant’s conviction for child molestation, holding that the defendant failed to prove that his trial counsel was constitutionally ineffective.

The record showed that in April 2011, the defendant lived with his wife, their two young children, and his 12 year-old stepdaughter. The stepdaughter testified that when she and the defendant were alone in the house, they played a game of “truth or dare.” During the game, the defendant dared her to take off her clothes, and she did so. When she put her clothes back on, she noticed that the defendant had an erection.

The defendant was indicted on one count of child molestation and one count of enticing a child for indecent purposes. Before trial, the State extended a plea offer of ten years of probation with certain conditions, including that he register as a sex offender. Harris rejected the offer. At trial, the State gave Harris an opportunity to reconsider whether he wanted to accept the plea offer. His defense attorney consulted with him and then informed the court that Harris has decided to go to trial.

At trial, the court granted the defendant’s motion for a directed verdict on the charge of enticing a child for indecent purposes, and the jury found him guilty of child molestation. He was sentenced to serve 12 years, with the first five in prison and the balance on probation.

Effective assistance of counsel includes the duty to provide informed legal advice regarding a plea offer. An accused may rely on his lawyer to “make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” A lawyer can ordinarily satisfy this duty by discussing with the accused the risks of going to trial, the evidence against him or her, and the possible sentences that would be imposed after a guilty plea versus after a conviction at trial.

At the hearing on the defendant’s motion for new trial, his trial attorney testified that he informed the defendant that the State had offered a plea of ten years probation which would require Harris to register as a sex offender. Counsel also testified that he told the defendant that if he was convicted, he would almost certainly go to prison and would still have to register as a sex offender. He told the defendant that the statement of a child is enough to support a conviction for child molestation, and that “if the jury believes her, he’s going to prison. If the jury doesn’t believe the child, he’s not. And [with the plea offer] he has the option to walk back out the door with a probated sentence.” He apprised the defendant of the evidence against him by making copies of the discovery he received from the State and sharing those copies with the defendant. The Court of Appeals held that this was sufficient to show that the attorney informed the defendant of the plea offer and that they discussed the risks of trial, the evidence against the defendant, and the possible sentences.

The Court also rejected an argument that counsel failed to perform adequate legal research and to properly advise the defendant on the state of the law. Specifically, the defendant argued that he was not properly informed that he could be convicted of child molestation without him even touching a child. Counsel testified that he informed the defendant he could be convicted of child molestation if the jury believed that anything he did was an immoral act to someone under the age of 16. After hearing counsel’s testimony, the trial court found as a matter of fact that counsel did inform the defendant that he could be convicted based on the allegations in this case.

As a result, the Court of Appeals affirmed the defendant’s conviction for child molestation.

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