McMurtry v. State
338 Ga. App. 622
| Ga. Ct. App. | 2016Background
- Defendant Jerome McMurtry, A.L.’s great-uncle, was convicted of one count of sexual battery and two counts of child molestation for touching a 10‑year‑old in December 2013; jury acquitted on one molestation count and three counts were nol prossed.
- Victim A.L. testified to multiple improper sexual acts (comments, ‘‘dry‑humping,’’ exposure, and digital contact inside her nightclothes).
- McMurtry testified, denying intent to molest: he claimed voluntary heavy drinking, partial blackouts, and that he was ‘‘looking for the remote’’; he also made inconsistent statements to police.
- Mother and a police officer testified about A.L.’s out‑of‑court statements; the State gave statutory pretrial notice required by OCGA § 24‑8‑820.
- Post‑trial, McMurtry moved for a new trial on general grounds and raised arguments including insufficiency of intent because of intoxication, accident defense not disproved, entitlement to a simple battery jury charge, exclusion objections to child hearsay, and ineffective assistance for failing to object to hearsay testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence / intent for Count 2 (child molestation) | State: evidence (victim testimony, mother’s observations, contradictions) supports intent | McMurtry: voluntary intoxication/blackout negated ability to form requisite intent | Affirmed — viewed in light most favorable to State, evidence supports verdict; voluntary intoxication not exculpatory |
| Whether State disproved defense of accident beyond reasonable doubt | State: A.L.’s detailed testimony and mother’s account permit rejection of accident | McMurtry: touching was accidental while drunk searching for remote | Affirmed — jury reasonably rejected accident defense based on testimony |
| Failure to instruct on simple battery as lesser included offense | State: no proper written request and evidence did not support lesser offense | McMurtry: trial court should have instructed on simple battery | Affirmed — no written request and evidence presented only supported either molestation or no crime |
| Admissibility of A.L.’s out‑of‑court statements (child hearsay) | State: statements admissible under OCGA § 24‑8‑820; notice provided and declarant testified | McMurtry: statements lacked indicia of reliability and were improperly admitted | Affirmed — statute’s requirements met; no additional indicia‑of‑reliability requirement applies; reviewed for plain error and none found |
| Ineffective assistance for failure to object to hearsay testimony | McMurtry: counsel should have objected and pressed recent fabrication/improper motive on cross | State: counsel had no meritorious basis to object because statements were admissible | Affirmed — counsel not deficient because testimony was properly admissible; no reasonable probability of different outcome |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Allen v. State, 296 Ga. 738 (standard on motion for new trial and appellate review)
- Watkins v. State, 336 Ga. App. 145 (when lesser‑included charge is improper because evidence supports only completed crime or none)
- Hendrix v. State, 298 Ga. 60 (counsel not ineffective for failing to object to properly admissible evidence)
- Hill v. State, 291 Ga. 160 (standards for ineffective assistance review)