Background

• Barclay was convicted of two counts of child molestation (Counts 1 and 5), two counts of aggravated child molestation (Counts 2 and 3), and one count of aggravated sodomy (Count 4).
• Barclay's eight-year-old stepdaughter A.R.H. reported inappropriate touching; DFCS interviewed A.R.H. and C.B. via videotaped sessions after the report.
• Medical examination of C.B. revealed anal scarring consistent with sexual abuse, and C.B. described being hurt as 'bootie' while the statements were recorded.
• A Gregg hearing determined the videotaped interview of C.B. had sufficient indicia of reliability and was admissible; C.B. testified at trial subject to cross-examination.
• The trial court admitted the videotape over Barclay’s challenge, and the State and Barclay debated whether counts should merge.
• The court ultimately held that Counts 1, 2, and 4 merged into Count 3 for sentencing purposes and remanded for resentencing; Counts 4 mergers were required because the proof of sodomy under Count 4 was necessary to prove aggravated child molestation under Count 3.

Issues

Key Cases Cited

• Gosier v. State, 241 Ga.App. 384 (1999) (admission of evidence within trial court’s discretion)
• Simmons v. State, 291 Ga.App. 642 (2008) (child hearsay framework; abuse of discretion standard)
• Ferreri v. State, 267 Ga.App. 811 (2004) ( Gregg factors applied to reliability of child statements)
• Gregg v. State, 201 Ga.App. 238 (1991) (outline of indicia of reliability for child statements)
• Drinkard v. Walker, 281 Ga. 211 (2006) (required evidence test for merger of offenses)
• Howard v. State, 281 Ga.App. 797 (2006) (merger when proof of one offence necessary to prove another)
• Hogan v. State, 178 Ga.App. 534 (1986) (same conduct cannot support two separate sentences)
• Foster v. State, 254 Ga.App. 255 (2002) (Count 1 is a lesser included offense of Count 2)