WEST v. The STATE.
Keddron 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 SE2d 512) (2005).
In its 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 SE2d 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 motion.
OCGA § 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 SE2d 357) (1981).
OCGA § 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 SE2d 247) (2004). Accord Disabato v. State, 303 Ga. App. 68, 70 (2) (692 SE2d 701) (2010).
In 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 568-569.
On 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 SE2d 371) (2014) and Castaneira v. State, 321 Ga. App. 418 (740 SE2d 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.
In 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.
Similarly, 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 SE2d 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).
Because 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 SE2d 709) (2004) (“[O]ur Supreme Court has exclusive jurisdiction over all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question”) (citation, punctuation, and footnote omitted).
Dillard, C. J., and Self, J., concur.