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Palmer v. State

Court of Appeals of Georgia

March 3, 2015

PALMER
v.
THE STATE

Child Hearsay Statute. DeKalb Superior Court. Before Judge Hunter.

Judgment reversed and case remanded.

Jimmonique R. S. Rodgers, Tyler R. Conklin, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

BARNES, Presiding Judge. Boggs and Branch, JJ., concur.

OPINION

Page 601

Barnes, Presiding Judge.

A jury found Timothy Palmer guilty of two counts of aggravated child molestation and one count of statutory rape,[1] and the trial court denied his motion for a new trial. On appeal, Palmer contends that the trial court committed reversible error in violation of OCGA § 17-8-57 by giving a jury instruction on statements by a child describing sexual contact or physical abuse in which the court expressed an opinion regarding the reliability of the child's statements. Because we determined in Rolland v. State, 296 Ga.App. 889, 891 (676 S.E.2d 296) (2009), and Starr v. State, 269 Ga.App. 466, 467-468 (1) (604 S.E.2d 297) (2004),[2] that virtually the same jury instruction violated OCGA § 17-8-57 and required reversal, Palmer's convictions must be reversed and the case remanded for a new trial.

1. At trial, in addition to the testimony of the child victim, the State introduced into evidence and played for the jury a video recording of the victim's forensic interview. The victim's mother and [330 Ga.App. 871] the lead detective assigned to the case also testified regarding the victim's disclosures of sexual abuse to them. Subsequently, during its charge to the jury, the trial court gave the following instruction on statements made by a child describing sexual contact or physical abuse:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another shall be admissible in evidence by the testimony of the person to whom made if the child is available to testify in the proceedings and if the court finds that the circumstances of the statement provide sufficient indicia of reliability.

( Emphasis supplied.) See OCGA § 24-8-820 (2012).[3]

Palmer contends that the trial court's instruction, in light of the language informing

Page 602

the jury that the court found that the circumstances of the child's statements had " sufficient indicia of reliability," constituted an improper comment on the evidence in ...


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