PALMER v. STATE (2015)

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 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 (Supp.2012).³

Palmer contends that the trial court's instruction, in light of the language informing 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 violation of OCGA § 17–8–57. We agree.

“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17–8–57. “Even if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are required to order a new trial, and there can be no finding of harmless error.” (Citations and punctuation omitted.) Booker v. State, 322 Ga.App. 257, 259(1) (744 S.E.2d 429) (2013). See State v. Gardner, 286 Ga. 633, 634 (690 S.E.2d 164) (2010); Sauerwein v. State, 280 Ga. 438, 439(2) (629 S.E.2d 235) (2006).

In Rolland, 296 Ga.App. at 890–891, and Starr, 269 Ga.App. at 466–468(1), the trial court gave virtually the same jury instruction on statements of a child describing sexual contact or physical abuse, and we considered a similar claim that the instruction violated OCGA § 17–8–57. We concluded in both cases that the jury instruction violated OCGA § 17–8–57 and required reversal because the jurors could have reasonably taken the instruction to be an expression or intimation of the trial court's opinion that the child's statements were reliable or true. See Rolland, 296 Ga.App. at 891; Starr, 269 Ga.App. at 467–468(1).

Based on this binding precedent, we conclude that the trial court's jury instruction violated OCGA § 17–8–57. “Given the mandatory nature of OCGA § 17–8–57 and the case law interpreting it, we must reverse [Palmer's] conviction[s] and remand the case to the trial court for a new trial.” Murphy v. State, 290 Ga. 459, 461(2) (722 S.E.2d 51) (2012). See Gardner, 286 Ga. at 634; Sauerwein, 280 Ga. at 439(2).

2. Given our decision in Division 1, we need not address Palmer's claim that the State failed to prove venue for one of the aggravated child molestation counts.⁴ The remedy for the failure to prove venue is to reverse and remand for a new trial if the State otherwise presented sufficient evidence to prove that the defendant committed the crime. See Powers v. State, 309 Ga.App. 262, 264(1) (709 S.E.2d 821) (2011). Here, the evidence was sufficient to prove that Palmer committed the alleged act of aggravated child molestation; therefore, retrial is not barred by Double Jeopardy considerations. See Jones v. State, 272 Ga. 900, 905(4) (537 S.E.2d 80) (2000). And because the remedy for failing to prove venue would be a retrial, which we already held in Division 1 must occur in this case, we need not resolve the venue question raised by Palmer in this enumeration of error.

Judgment reversed and case remanded.

FOOTNOTES

1.  The jury acquitted Palmer of aggravated sexual battery and child molestation.

2.  Starr subsequently was overruled in part on other grounds by Hatley v. State, 290 Ga. 480, 483(I) (722 S.E.2d 67) (2012).

3.  This charge mirrors the language of OCGA § 24–8–820 (Supp.2012), which governed Palmer's trial in March 2013. See Ga. Laws 2011, Act 52, § 101. With respect to offenses occurring on or after July 1, 2013, a new version of the child hearsay statute applies that, among other things, omits the statutory requirement that the trial court determine whether the circumstances of the statement provide sufficient indicia of reliability before admitting the hearsay evidence. See OCGA § 24–8–820 (2013); Ga. L.2013, p. 222, §§ 13, 21/HB 349.

4.  We likewise need not address Palmer's claim of ineffective assistance of counsel.

BARNES, Presiding Judge.

BOGGS and BRANCH, JJ., concur.