SULLINS v. the STATE., 347 Ga. App. 628

Background

Defendant Richard Lee Sullins, Jr. was convicted after a bench trial of child molestation, two counts of sexual battery against a child under 16, and second-degree cruelty to children; sentence totaled 35 years (20 to serve, 15 probated).
The alleged victim (D.K.) disclosed the abuse at school in January 2016; a forensic interview at Harbor House and testimony recounted multiple inappropriate touchings spanning ages 13–16.
The State introduced D.K.’s videotaped forensic interview and testimony from witnesses recounting D.K.’s out-of-court statements.
It was undisputed on appeal that D.K. was 16 when she made the outcry and was interviewed, so her out-of-court statements did not satisfy the Child Hearsay Statute (OCGA § 24-8-820) which requires the declarant be under 16.
No hearsay objection was raised at trial; the parties and trial court appear to have proceeded under the mistaken belief the victim was under 16.
The Court of Appeals reviewed the unobjected-to hearsay for plain error, concluded admission was clear error that likely affected the outcome in the bench trial, and ordered a new trial; convictions otherwise supported except for the Count premised on victim being under 16 for felony sexual battery.

Issues

Issue	Sullins' Argument	State's Argument	Held
Admission of D.K.’s forensic interview and witnesses’ testimony about her out-of-court statements (hearsay)	Admission was improper because D.K. was 16 at the time of the outcry and thus not covered by the Child Hearsay Statute	Any challenge was waived by failure to object; remedy would be ineffective-assistance claim, not appellate review	Court reviewed for plain error, found admission was clear and obvious error and warranted new trial
Applicability of prior-consistent-statement exception to admit the forensic interview	Prior consistent statement did not apply because defense only made general attacks on credibility, not allegations of recent fabrication or improper influence	Evidence could be considered for rehabilitation/corroboration	Court held prior-consistent-statement exception did not apply; hearsay inadmissible
Whether the unobjected-to hearsay affected substantial rights in a bench trial	The erroneous admission likely affected outcome because judge relied on interview details and out-of-court statements for timing and detail	Bench trial judge presumed to sift inadmissible from admissible evidence; any error harmless	Court found circumstances (misapprehension about victim’s age and judge’s apparent reliance) overcame presumption and affected substantial rights
Remedy — whether reversal and new trial required	New trial required due to seriousness of error on admissibility and its likely impact on verdict	Argued waiver/ineffectiveness should preclude reversal on appeal	Court exercised discretion to remedy; reversed in part and remanded for new trial (except convictions not dependent on the 16-year-old outcry timing may be retried)

Key Cases Cited

Mosley v. State, 298 Ga. 849 (2016) (unobjected-to hearsay reviewed for plain error)
Gates v. State, 298 Ga. 324 (2016) (four-prong plain-error framework for unobjected errors)
State v. Kelly, 290 Ga. 29 (2011) (plain-error discretion and standards)
Laster v. State, 340 Ga. App. 96 (2017) (Child Hearsay Statute is legislatively-created exception; prior consistent statements and admissibility limits)
Darden v. State, 206 Ga. App. 400 (1992) (age of declarant at time of statement controls admissibility under Child Hearsay statute)
Blackmon v. State, 336 Ga. App. 387 (2016) (outcry inadmissible where declarant over statutory age and prior-consistent exception not satisfied)
Forde v. State, 289 Ga. App. 805 (2008) (counsel deficient for failing to object to videotaped interview where declarant over statutory age)
Johnson v. State, 294 Ga. 86 (2013) (hearsay harmless where merely cumulative of properly admitted testimony)