Whorton v. State
321 Ga. App. 335
Ga. Ct. App.2013Background
- Glenn Whorton, the boyfriend of V. B.'s aunt, was tried by jury for child molestation and sexual battery of a four-year-old victim, V. B.
- V. B. exhibited troubling behaviors in 2007, including enuresis, fear of the dark, and frequent genital irritation, leading to concerns of harm by someone.
- V. B. disclosed to her mother that Whorton had touched her 'bunches of times' and demonstrated contact with her genitals; she initially denied harm when questioned by her mother.
- A forensic interview and counseling followed the disclosure, with subsequent statements to investigators and a counselor corroborating Whorton's touching, described as 'tutu' by V. B.
- Whorton was indicted for acts occurring in June 2007; the jury convicted him on both counts, and he appealed.
- On appeal, the court assessed evidentiary reliability of child-hearsay statements, Confrontation Clause implications, and sufficiency of the evidence as it related to admissible testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre-trial reliability hearing requirement | Whorton argues for a Gregg reliability hearing before admitting child-hearsay statements. | Whorton contends the trial court failed to conduct necessary reliability analysis. | No pre-trial hearing required; record supported reliability and no reversible error. |
| Admissibility under Confrontation Clause | Whorton asserts testimonial hearsay violated Confrontation Clause by not calling the child as a witness. | State argues error harmless due to cumulative evidence. | Admission was harmless because testimonial statements were cumulative of admissible non-testimonial statements. |
| Sufficiency of evidence | Convictions rested on inadmissible hearsay alone. | Evidence including admissible child-hearsay suffices to sustain convictions. | Convictions affirmed; sufficient admissible evidence supports guilt. |
Key Cases Cited
- Reynolds v. State, 267 Ga. App. 811 (Ga. App. 2004) (advisable rather than required reliability hearing for child hearsay)
- Ferreri v. State, 267 Ga. App. 813 (Ga. App. 2004) (pretrial Gregg hearing may be prudent but not controlling; not precedential on requirement)
- Hatley v. State, 290 Ga. 480 (Ga. 2012) (harmless error when testimonial statements are cumulative of non-testimonial hearsay)
- Gregg v. State, 201 Ga. App. 238 (Ga. App. 1991) (outlines indicia of reliability and admissibility framework for child hearsay)
- Hughes v. State, 297 Ga. App. 581 (Ga. App. 2009) (videotaped statements assessed for reliability under similar framework)
- Robinson v. State, 308 Ga. App. 45 (Ga. App. 2011) (explicitly notes no need for explicit reliability finding before admission)