DILLARD, C. J., RAY and SELF, JJ.
Rakee West was indicted on two counts each of child
molestation and statutory rape. The State filed a motion in
limine seeking to prohibit any testimony or evidence
regarding West's belief that the victim was over the age
of consent. After oral argument, the trial court granted the
State's motion in limine. The trial court then granted
West's certificate of immediate review, and this Court
granted West's application for interlocutory appeal from
this order. For the following reasons, we affirm.
A motion in limine is a pretrial method of determining the
admissibility of evidence. By its very nature, the grant of a
motion in limine excluding evidence suggests that there is no
circumstance under which the evidence under scrutiny is
likely to be admissible at trial. In light of that absolute,
the grant of a motion in limine excluding evidence is a
judicial power which must be exercised with great care. A
trial court's ruling on a motion in limine is reviewed
for abuse of discretion.
(Citation and punctuation omitted.) Forsyth County v.
Martin, 279 Ga. 215, 221 (3) (610 S.E.2d 512) (2005).
motion in limine, the State indicated that West was read his
Miranda rights and then consented to undergo a recorded
interview by Investigator Wayne Luke and Investigator Walter
Kegley on September 14, 2015. During this recorded interview,
West admitted to having sex with the victim on multiple
occasions. However, he claimed that he thought she was 17
years old at the time of the acts, but learned later that the
victim was only 15 years old. In its motion, the State sought
to prohibit West from eliciting any testimony or presenting
any evidence about West's beliefs regarding the
victim's age at the time of the sexual acts. Citing to
Haywood v. State, 283 Ga.App. 568 (642 S.E.2d 203)
(2007), the State argued that even if West believed the
victim was 17 years old, his belief would not be a possible
defense at trial and would only confuse the jury as to the
elements of the charged offenses. The trial court granted the
§ 16-6-3 (a) provides that "[a] person commits the
offense of statutory rape when he or she engages in sexual
intercourse with any person under the age of 16 years and not
his or her spouse[.]" And, "[w]ith regard to
statutory rape, the defendant's knowledge of the age of
the female is not an essential element of the cime[, ] and
therefore it is no defense that the accused reasonably
believed that the prosecutrix was of the age of
consent." (Punctuation omitted.) Haywood, supra
at 568, citing Tant v. State, 158 Ga.App. 624,
624-625 (2) (281 S.E.2d 357) (1981).
§ 16-6-4 (a) (1) provides that "[a] person commits
the offense of child molestation when such person: . . . Does
any immoral or indecent act to or in the presence of or with
any child under the age of 16 years with the intent to arouse
or satisfy the sexual desires of either the child or the
person[.]" The defendant's knowledge of the age of
the victim is not an essential element of the crime of child
molestation. See Schultz v. State, 267 Ga.App. 240,
241 (1) (599 S.E.2d 247) (2004). Accord Disabato v.
State, 303 Ga.App. 68, 70 (2) (692 S.E.2d 701) (2010).
Haywood, supra, this Court found that the trial
court did not abuse its discretion in granting the
State's motion in limine seeking to exclude evidence of
the defendant's knowledge of the victim in a case where
defendant was convicted of child molestation and statutory
rape. The Haywood Court reasoned that knowledge of
the victim's age is not an element of either statutory
rape or child molestation and, thus, was not relevant
information in the trial. See also Schultz, supra at
241 (1)-(2) (defendant was not entitled to a jury instruction
as to mistake of fact in a child molestation prosecution
because knowledge of the victim's age is not an element
of the crime of child molestation). The Haywood
Court went on to conclude that evidence regarding the
victim's contradictory statements about her age would not
be admissible even for impeachment purposes. Id. at
appeal, West argues that Haywood, supra, is no
longer binding because Georgia case law subsequent to
Haywood has allowed evidence of a defendant's
belief regarding the victim's age to be introduced in
similar cases. West cites to Davis v. State, 329
Ga.App. 17 (763 S.E.2d 371) (2014) and Castaneira v.
State, 321 Ga.App. 418 (740 S.E.2d 400) (2013) for this
assertion. However, to the extent these cases conflict with
the holding in Haywood, supra, they do so only in
dicta. They have not altered the clear-cut rule set forth by
this Court in Haywood, supra.
Davis, supra at 20 (2), this Court held that a
defendant's trial counsel did not render ineffective
assistance by presenting the legally invalid mistake-of-fact
defense that the defendant thought the victim was the age of
consent when they engaged in sexual activity. The
Davis Court held that, although the defendant's
knowledge of the victim's age is not an element of child
molestation, the defense counsel's attempt to sway the
jurors by presenting evidence that the defendant believed the
victim was old enough to consent did not constitute an
unreasonable trial strategy and, thus, did not rise to the
level of ineffective assistance. Id. Although the
trial court in Davis, supra, allowed the defendant
to make a statement that he thought the victim was over the
age of consent, there is no indication that the State lodged
an objection or filed a motion in limine to prohibit such
evidence. Further, this Court was not asked on appeal to
determine the propriety of the admission of such evidence.
Accordingly, this Court's holding in Davis,
supra, does not conflict with Haywood, supra.
Castaneira, supra, does not directly conflict with
Haywood, supra. In Castaneira, this Court
found that a jury instruction on a mistake-of-fact defense
was not warranted in an attempted child molestation case
where a victim told a defendant that she was underage.
Id. at 422-423 (1). Thus, this Court held that any
mistake-of-fact by the defendant was a result of his own
fault or negligence and, accordingly, that a jury instruction
on mistake-of-fact was not warranted. Id. Although
this Court seemed to indicate, in non-binding dicta, that
even if an instruction on the mistake-of-fact defense was
warranted due to the defendant's belief regarding the
victim's age, there was no reversible error because the
trial court's jury instructions provided adequate
instruction on the elements intent and knowledge.
Id. at 423 (1). However, the Castaneira
Court's discussion was dicta and does not overrule our
explicit holding in Haywood, supra. See Zepp v.
Brannen, 283 Ga. 395, 397 (658 S.E.2d 567) (2008)
("declin[ing] to give force to the dicta in [another
case] because it was not necessary to resolve the issue
before the Court") (citation omitted).
Haywood is controlling, we conclude that the trial
court did not err in granting the State's motion in
limine to exclude evidence and testimony regarding West's
belief of the victim's age at the time of the sexual act.
To the extent that West argues that the statute as written is
unconstitutional, such issue is not within the jurisdiction
of this Court. See Gearin v. State, 269 Ga.App. 187,
189 (3) (603 S.E.2d 709) (2004) ("[O]ur Supreme Court
has exclusive jurisdiction over all cases in which the