Kay v. State
306 Ga. App. 666
| Ga. Ct. App. | 2010Background
- Kay was convicted of child molestation and appeals, challenging sufficiency of evidence, a pretrial motion in limine ruling, and alleged ineffective assistance of counsel under Strickland.
- Eight-year-old victim told DFCS workers Kay touched her between the legs; interview was recorded and played at trial, and victim testified Kay touched her between her legs.
- Victim initially recanted but later testified; the jury weighed credibility and resolved conflicting evidence in Kay's favor.
- Indictment alleged touching of the victim's vagina with intent to satisfy sexual desires; trial evidence showed touching between the legs on top of clothing.
- State moved in limine to bar defense from referencing the victim's mother's past drug use and DFCS placement of children; court limited cross-examination on those topics.
- Defense alleged ineffective assistance for not requesting lesser charges and for not objecting to leading questions; trial court denied relief and conviction affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict | Kay argues evidence is inadequate to prove guilt beyond a reasonable doubt. | State asserts the victim's testimony, corroborated by recording, supports guilt. | Evidence supports a rational finding of guilt beyond reasonable doubt. |
| Impeachment evidence via DFCS placement and drug-use references | Kay contends in limine ruling improperly restricted cross-examination about DFCS placement and drug use. | State contends such cross-examination is not relevant or properly admissible impeachment absent convictions. | Trial court's limiting rulings were proper; no reversible error. |
| Fatal variance between indictment and proof | Kay claims indictment alleges touching of the vagina with intent to satisfy, but proof showed touching between legs over clothing. | State argues no material variance under Georgia law; elements proven include immoral or indecent act with intent to arouse or satisfy. | No material variance; conviction upheld. |
| Cross-examination of DFCS employee and mother | Kay asserts the court curtailed cross-examination that could reveal motive to fabricate testimony. | State contends such cross-examination is not relevant or permissible as framed. | No abuse of discretion; cross-examination limits were proper. |
| Ineffective assistance of counsel | Kay claims counsel was ineffective for not calling grandmother as witness and not requesting certain charges, and for failing to object to leading questions. | State argues decisions were tactical and did not amount to deficient performance or prejudice. | No ineffective assistance; decisions were reasonable tactical choices. |
Key Cases Cited
- Dean v. State, 273 Ga. 806 (Ga. 2001) (sufficiency standard for Jackson v. Virginia in Georgia)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency of evidence standard)
- Hibbs v. State, 299 Ga.App. 723 (Ga. App. 2009) (confrontation and cross-examination issues involving juvenile proceedings)
- Cherry v. State, 283 Ga.App. 700 (Ga. App. 2007) (necessity of exact indictment language not required)
- Watson v. State, 222 Ga.App. 814 (Ga. App. 1996) (touching scope and sexual nature questions up to jury)