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London v. State

Court of Appeals of Georgia

July 16, 2015

LONDON
v.
THE STATE

Recording. Muscogee Superior Court. Before Judge Jordan.

Bentley C. Adams III, for appellant.

Julia F. Slater, District Attorney, Robert B. Bickerstaff II, Michael E. Craig, Assistant District Attorneys, for appellee.

PHIPPS, Presiding Judge. Doyle, C. J., concurs. Boggs, J., concurs specially.

OPINION

Phipps, Presiding Judge.

Bartholomew London was convicted of child molestation and two counts of aggravated child molestation involving his then-15-year-old stepdaughter, C. S. He appeals from the denial of his motion for new trial, contending, among other things, that the trial court erred when it denied his motion to suppress a recording of a telephone conversation between him and the child. Because the state failed, pursuant to OCGA § 16-11-66 (b), to obtain consent for the recording by order of a judge of a superior court upon written application, we reverse.

While the trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine [333 Ga.App. 333] whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.[1]

On March 16, 2010, an indictment was returned filed against London. Counts 1 and 2 of the indictment alleged that London committed the crime of aggravated child molestation " by placing his mouth on [C. S.'s] vagina" ; Count 3 alleged that London committed the crime of child molestation " by placing his finger into [C. S.'s] vagina[.]" The offenses were alleged to have been committed " on or between" August 1, 2009 and October 1, 2009.

At trial, C. S. testified that London was married to her mother and that they all lived together on the dates at issue. C. S. testified

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that sometime in late August 2009, London went into her bedroom and put his mouth on her " privates." London also inserted his finger in C. S.'s " private part." C. S. told London that " it hurt," and London stopped. C. S. testified that on another occasion in early September 2009, London entered her bedroom and put his mouth on her " private." Around October 1, 2009, C. S. disclosed the incidents to her mother, who took C. S. to the police station the following day.

A detective interviewed C. S. and videotaped the interview. C. S. testified that the detective asked her to call London " [t]o get him to admit what he did," but C. S. could not reach London at that time. C. S. went back to the police station two days later; her mother was with her initially, but she had to leave and was not present when C. S. called London from the police station that day. The detective recalled specifically that police had " decided for C. S. to come back in and [C. S.] agreed to ... come back in ... October the 4th, and [C. S.] attempted to make another call to [London]." This time, London answered the phone; police conducted what the detective referred to as a " reverse phone call," recorded the conversation with a video device, and reduced the recording to a DVD format.[2]

[333 Ga.App. 334] The court allowed the state to introduce into evidence the DVD, which was played for the jury. The court also allowed the state to introduce a transcript of the conversation that had been recorded and preserved on the DVD. C. S. testified that the transcript was made as she watched the video and that the transcript was true and accurate to the best of her knowledge. Therein, at one point C. S. informed London that she had an impending doctor's appointment, and she wanted to ask ...


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