Prophitt v. the State
336 Ga. App. 262
Ga. Ct. App.2016Background
- Defendant Jason Prophitt lived with his wife and their 10-year-old daughter; a 15-year-old friend (C.D.) was spending the night and showered in the only bathroom.
- Prophitt allegedly went beneath the house and looked up through a small hole in the bathroom floor while masturbating; his wife discovered him and called police.
- Prophitt was indicted and convicted by a jury for child molestation under OCGA § 16-6-4(a)(1) (immoral/indecent act in the presence of a child to arouse himself).
- At trial the State relied on evidence that Prophitt was 7–8 feet from the shower beneath the floor and that he was masturbating while looking through the hole; the child was unaware of his presence or conduct.
- Prophitt moved for directed verdict arguing the State did not prove he acted “in the presence of” the child; the trial court denied the motion and entered judgment on the jury’s guilty verdict.
- On appeal, the Court of Appeals reversed, holding the evidence did not show Prophitt was “in the presence of” C.D. as required by the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Prophitt committed an immoral/indecent act “in the presence of” a child under OCGA § 16-6-4 | The State: proximity (7–8 feet) and that Prophitt could view C.D. suffice to show he was in the child’s presence, even if C.D. was unaware | Prophitt: he was under the house, separated by the bathroom floor, making him not "in the presence" of the child | Court: Reversed conviction — not in the child’s presence because they were not together in the same place or immediate physical proximity and the child was unaware of his conduct |
Key Cases Cited
- Vines v. State, 269 Ga. 438 (Georgia 1998) (child molestation requires accused and victim to be together in same place; telephone conduct not within statute)
- Selfe v. State, 290 Ga. App. 857 (Ga. App. 2008) (webcam transmission where accused and child were in separate locations did not satisfy presence element)
- Rainey v. State, 261 Ga. App. 888 (Ga. App. 2003) (presence satisfied where accused knowingly exposed himself through a window to a child who could see him)
- Clemens v. State, 318 Ga. App. 16 (Ga. App. 2012) (presence satisfied where defendant masturbated in same bed as sleeping child and was aware of the child’s proximity)
- Klausen v. State, 294 Ga. App. 463 (Ga. App. 2008) (presence satisfied where defendant masturbated on sofa while aware child sat on the same sofa)