MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
MCFADDEN, PRESIDING JUDGE.
issue in this appeal is whether a criminal defendant's
rights under the Confrontation Clause of the Sixth Amendment
were violated when the trial court admitted hearsay testimony
concerning out-of-court statements made by the minor victim.
Because the victim testified at trial and was subject to
cross-examination, there was no Confrontation Clause
violation. Accordingly, we affirm the judgment.
Facts and procedural posture.
Cornell was charged by indictment with aggravated sexual
battery, aggravated child molestation, aggravated sodomy, two
counts of child molestation, and two counts of cruelty to
children. The state filed notice of its intent to offer child
hearsay statements of the minor victim, G. W., pursuant to
OCGA § 24-8-820. The case proceeded to a jury trial at
which G. W. testified, as did various witnesses to whom G. W.
had made statements about having been sexually abused by
Cornell, her uncle. Witnesses for the state testified, among
other things, that five-year-old G. W. had reported that
Cornell had touched her vagina with his fingers and had made
her lick his penis.
jury found Cornell guilty of all the charges except for
aggravated child molestation. The trial court merged some of
the offenses for sentencing, and imposed a total sentence of
life, with 25 years to be served in confinement and the
remainder to be served on probation. After the trial court
denied Cornell's motion for a new trial, he filed this
claims that the trial court erred in admitting hearsay
statements of the victim in violation of the Confrontation
Clause of the Sixth Amendment. The claim is without merit.
initial matter, we note that Cornell has not challenged the
admissibility of G. W.'s out-of-court statements under
the child hearsay statute. That statute, OCGA §
A statement made by a child younger than 16 years of age
describing any act of sexual contact or physical abuse
performed with or on such child by another or with or on
another in the presence of such child shall be admissible in
evidence by the testimony of the person to whom made if the
proponent of such statement provides notice to the adverse
party prior to trial of the intention to use such
out-of-court statement and such child testifies at the trial,
unless the adverse party forfeits or waives such child's
testimony as provided in this title, and, at the time of the
testimony regarding the out-of-court statements, the person
to whom the child made such statement is subject to
cross-examination regarding the out-of-court statements.
record in this case shows that the state provided notice of
its intent to use the victim's out-of-court statements,
the victim testified at trial, and the persons to whom the
victim made the statements were subject to cross-examination
at trial. Thus, the "out-of-court statements made by [G.
W.] to the hearsay witnesses about acts of sexual abuse
committed by [Cornell] . . . were admissible under OCGA
§ 24-8-820." Blackwell v. State, 346
Ga.App. 833, 839 (3) (a) (815 S.E.2d 288) (2018).
But even if [OCGA § 24-8-820] authorizes the admission
of such evidence as an evidentiary matter, it may still be
inadmissible as a violation of the accused's rights under
the Confrontation Clause. . . . [T]here is a distinct
difference between a challenge to the admission of evidence
based upon the Confrontation Clause and that based upon an
exception to the hearsay rule.
State v. Dague, 325 Ga.App. 202, 208 (2) (750 S.E.2d
476) (2013) (citations and punctuation omitted). "The
Sixth Amendment's Confrontation Clause provides that, in
all criminal prosecutions, the accused shall enjoy the right
to be confronted with the witnesses against him."
State v. Smith, 302 Ga. 837, 838 (809 S.E.2d 720)
(2018) (citation and punctuation omitted). "(T)he
[C]onfrontation [C]lause imposes an absolute bar to admitting
out-of-court statements in evidence when they are testimonial
in nature, and when the defendant does not have an
opportunity to cross-examine the declarant."
Colton v. State, 292 Ga. 509, 512 (2) (739 S.E.2d
380) (2013) (citations and punctuation omitted; emphasis
supplied). Accord Gay v. State, 279 Ga. 180, 181 (2)
(611 S.E.2d 31) (2005). But "when the declarant appears
for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior
testimonial statements. The Clause does not bar admission of
a statement so long as the declarant is present at trial to
defend or explain it." Robinson v. State, 271
Ga.App. 584, 587 (2) (610 S.E.2d 194) (2005) (citation and
case, the victim testified at trial and was cross-examined by
Cornell. While Cornell did not question the victim about her
out-of-court statements, he was not precluded from doing so.
Compare Soto v. State, 285 Ga. 367, 370 (2) (b) (677
S.E.2d 95) (2009). The victim's out-of-court testimonial
statements might have been inadmissible "if [she had
been] unavailable and [Cornell had not been] given an
opportunity to cross-examine [her]." Smith,
supra (citation omitted). But "because the [victim was]
present at trial and testified, . . . [Cornell's]
confrontation right was not violated."
Robinson, supra. Accordingly, the trial court did
not err in admitting the child hearsay testimony. ...