*1 Byrd, Washington Larsen, Jr., T. Garland Larsen, Celia Wm. appellees. Byrd, for Charles W. THE STATE. 76273. GLISSON (372 SE2d Judge. Sognier, cruelty Appellant child, he a of incest and was convicted appeals. Appellant com- incest cannot be the offense of
1. contends that “stepgranddaughter,” “stepgrandfather” his mitted between deny verdict a directed and acquittal it was error to his motion therefore agree. as offense. knowledge prohibition against intermarriage be- or carnal “The by consanguinity, persons extended unless tween related degrees applies only Levitical statute, to those related within specified by the 53], if are [Cook v. or certain relations generally only question, however, is statute, relations. being regulated by provision to con- statute, order a common parties in some each other the crime the must be related to stitute prohibited.” degree marriage Incest, CJS, 3a. is within which relationship; Consanguinity “Kinship; as: blood is defined persons or stock from the same connection or relation of common ancestor. descended ‘affinity,’ distinguished Consanguinity marriage, existing consequence of a be- which is the connection persons the other.” and the kindred of tween each of the married Special p. Dictionary, Edition, “There Fifth Black’s Law is a clear Deluxe marriage just or sexual moral between the difference persons consanguinity [blood] and that intercourse of persons pressly relating related statutory prohibition only by affinity, ex- hence a related implication consanguinity degrees will not Affinity meaning degrees affinity, stat- . . . within the extend to utes riage parties against mar- to a does not arise one of the party.” only by affinity CJS, person and a related supra, § 3b. (a) person provides: “A commits the offense
OCGA 16-6-22 person engages whom incest when he sexual intercourse with (1) by marriage follows: he Father and he or as knows is related either (2) stepson; daughter stepdaughter; or Mother and son (4) (3) blood; Brother and of the whole blood sister half (5) (6) grandchild; nephew; Grandparent Uncle and prohib- Aunt and (Emphasis supplied.) while niece.” iting by affinity, persons certain related sexual relations between stepgrandfather-stepgranddaughter does not include the always its definition of It has incest. been the law that criminal strictly statutes must be Mitchell construed Ga. 3 and since the does prohibition not include a “step- sexual between a intercourse grandfather” “stepgranddaughter,” excluded under expressio maxim unius est exclusio alterius. . fully
“The fact that the . . sexual here involved [are] act[s] *2 loathsome proscribed as the disgusting acts the Code does not justify us reading statutory prohibition into the something which Assembly General intentionally inadvertently either or omitted.” Riley Garrett, 345, (1) (133 367) (1963). 219 Ga. 347-348 SE2d Since the appellant alleged victim is not which is statute, any enumerated in the sexual relation- ship between them would not be Accordingly, appellant’s incestuous. conviction of incest must be reversed.
2. Appellant alleges it testify was error to allow witnesses to as to what the alleged regard victim told them. In alleged trial, who was sixteen at the time of invoked her tes- privilege tify provisions (a), under the of OCGA on ground 24-9-27 that § her testimony would tend to bring disgrace public contempt upon family. times, She privilege invoked this three tes- and refused to tify despite the ruling that she must trial court counselor, then allowed a agent, school a former GBI and the victim’s stepfather mother and testify, continuing objection, over a as to what the victim charged. told them about the offenses The State of- fered such testimony conduct, on the ground explain that it was to and the court ground. Thus, admitted it on that appellant’s convic- tion is entirely based hearsay testimony. OCGA 24-3-16 is not § applicable the alleged because victim under was not fourteen at the time she made her statements. 482)
In Momon v.
(1982),
forth OCGA § usually unavailable, the witness That may compelled not be of death or cases where the because compelled testify, in the of a wife who cannot case wit- has that “a Court established Supreme her husband. Our matters to material ness cannot refuse to relative on the basis crime committed a member of [her] [her] contempt upon infamy public bring disgrace, answer [her] 499) (4) (266 Thomas v. family.” [her] (1980). Brown v. See also (1978). invoke alleged this case could not victim /Thus, Since ground on this and could have been deprived a trial been compellable, appellant has in- immediately, rather than which the victim’s would be evaluation, be sub- termediately, and she would before the for its compel ject to The result of the court’s failure cross-examination. *3 to be inadmissible evidence the witness to was that allowed from its presented evidence was shielded jury, and admissible consideration. judge of the trial wrongs right,
Two
do not make a
and
failure
testimony
not
the con-
compel
alleged
victim’s
should
sanction
testimony.
sequent
of
That
is reversible error
hearsay
admission
First,
victim’s
would be direct evidence
reasons.
they
not occur. Sec-
charged
that either the offenses
occurred or
did
ond,
subject
him
to cross-exam-
appellant’s accuser would face
and be
ination,
thereby
right to confront
giving appellant his constitutional
448)
v.
Higgs
him.
statements were not of the res did not constitute they fresh complaint, spontaneous nor were exclamations committed, shortly allegedly charged after offenses were period slightly acts of excess of allegedly incest occurred over counselor year. contrary, On the the initial statement to the school was made after a student informed the counselor she should talk to grandfather. relationship the victim by All about her with her statements questioning witnesses, the victim were the the various result of voluntarily by alleged assuming, and were not made victim. Even argument only, the sake of the witnesses was ordinarily probative hearsay testimony wholly admissible, without objection, value, and even introduced without App. alone cannot Jones Ga. 857, establish a fact issue. (1934); SE Collins Hence, it was error to allow the testi- mony under witnesses the facts the convic- tion is reversed. unnecessary
3. In view of our decision Divisions and appellant’s remaining to address enumerations error.
Judgment Birdsong, Carley J., Banke, J., reversed. C. P. Beasley, McMurray, Pope JJ., Deen, J., J., concur. P. P. and Ben- ham, JJ., dissent. Judge, dissenting.
Pope, holding Georgia’s I1. dissent from the incest statute does relationship stepgrandchild. provides, pertinent part: person OCGA 16-6-22 “A commits the engages person offense incest when he in sexual intercourse awith by marriage to whom he knows he is related either as grandparent grandchild (Emphasis supplied.) follows: . . . . .” . . By expressly providing by marriage, Georgia for relation incest by affinity (marriage) to relation well as consan- (blood). guinity by marriage applies definition, relation to rela- “step” relationships tions “in-law” and relations. each of the (a) relationships set forth in OCGA 16-6-22 includes “in-law” “step” relationships, including grandparent grandchild, as set (a) (4). forth subsection The evidence in this case shows defendant stepfather, was the father of the victim’s with whom she lived. De- by marriage, grandfather was, fendant the victim’s and the relation- ship between defendant and victim is covered statute. majority requirement of the of Levit- degrees inapplicable.
ical *4 is In Cook v. when (56 410) (1852) Georgia’s penal State, 11 decided, Ga. 53 A.D. require parties degrees. code did to be related Levitical Laws Digest, p. years 1833, Cobb’s 1851 However, in the 130 specific Cook, the incest statute has been revised. It now sets forth six relationships prohibited, for which sexual intercourse is whether the (a). relationship “by by marriage.” is The OCGA majority’s scholarly discussion distinction re- between Georgia’s affinity by consanguinity instructive, for is also not lation applies by marriage. relationships Our statute incest statute includes affinity consanguinity. relationships both in which a court has are aware case of we The which relationship between considered whether subject stepgrandchild incest decided an is Washington. Appeals State Wash. In Court of of the State of (1985) (711 Washington Handyside, P2d 42 Wash. relationship. apply However, the held not to the incest statute was Washington 9A.64.020, statute, Ann. varies Rev. Code Wash. By Washington significantly Georgia incest statute. “descendant,” those sexual contact is forbidden with term defined to related stepchildren stepgrandchildren. include but relationships by Washington Moreover, marriage. statute does not statutory states, differences between the Because of the holding Washington is to the facts of of the the case at hand. relationship argument
I that the find no merit defendant’s implicitly stepgrandchildren left out incest statute stepdaughter father and mother because express ignore stepson in- included. cannot any relationship by marriage, each of the which clusion (a) (1) relationships through in the statute. See subsections enumerated Thus, I affirm the conviction of OCGA 16-6-22. incest. agree concerning the vic-
2. I that the with defendant explain the conduct tim’s others not admissible to statements to investigating State, Momon v. of those the accusations. See governed However, this case by Higgs squarely Instead, Momon. ruled recognizes which (in eyewit- necessary Higgs, rule for statement of a victim) ness; us, in the the witness invokes case now before surrounding the a ness’ statement wit- not to and the circumstances
guarantee its trustworthiness. appeal is The of the in this obvious issue repeated testify, despite from the refusal of the victim to specific in this case instruction do so. circumstances involved guarantee the the victim trustworthiness of statements to others. identical similar statements four The victim related stepfather, counselor, her and a GBI adults: her school mother grand agent. Moreover, before the the record reflects testified aspects were cor- which statements indicted defendant. Certain by physical of other wit- or the roborated direct activity (e.g., occurred after nesses her statement the sexual *5 away parents school and weekends her were from was tes- while home by neighbor siblings her corroborated a who regularly tified defendant visited the victim’s house these times and locked the other bedroom; of the house or out of the victim’s children out door to her bed-
her statement that defendant blocked the by room with a stick was the introduction of a stick corroborated bedroom). matching description her in her As in which was found Higgs, contrary testify the victim did not to the statements made to any the four adults nor was evidence ever dis- they avowed statements or claimed were inaccurate or untrue. appeared response ques- jury and, The victim in before the trial to tioning, invoking testify. read a to statement There- position fore, the was in a to the witness’ evaluate trustworthi- sincerity ness, or motive and to form a belief as to whether the private witness could be trusted to though in even tell the truth to others public. unwilling testify she was young, The victims of sexual offenses children are vulner- dependent upon very able and often the accused. The nature of relationship between the victim and the accused a creates dilemma subpoenaed the child often the The witness necessary may conviction, able to establish the evidence dated into silence out of fear of intimi- be
reprisal. “personal dis- grace” privilege does not material to extend the issues of Division of (See may required the case and the be majority opinion, supra). youth Nevertheless, due to the and vul- nerability may judge, of the witness the trial be reluctant to contempt. reprehensible hold the witness in Conviction for these of- psycho- fenses should not be thwarted the accused’s emotional and logical any cases, control over the victim. The offense these as in just against good crime, laws, the victim but peace dignity order, of the state. When reliable evidence is availa- conviction, ble to sustain a blind, it must be excluded. Justice is but not dumb. necessity exception hearsay I do not advocate that the rule applied routinely any
be
child molestation or incest case where the
victim is unavailable to
Neither do I believe
courts
rigidly
recognized exception
should
refuse to
an established and
hearsay
to
instances where
reliable statements made
the victim to others
necessity
coupled
guaranty
with “a circumstantial
(Cit.
punctuation
of the trustworthiness of the offered evidence.”
omitted.) Higgs
supra
at 607.
the statement
age
a child under the
of fourteen to another
sex-
physical
long
ual contact or
abuse
so
is admissible
as the child is
available to
statement
and “the court finds that the circumstances of the
provide
reliability.”
sufficient indicia of
OCGA 24-3-16.
young
protect
apparent purpose
is to
child
The
the trauma of
this statute
appearing
which
to matters
would
admissibility
understandably disturbing
However,
child.
to the
reliability.
child
statement
is based on its
Is the
day
into
less
or admissible
of fourteen
reliable
over
Certainly
long
not.
as the
evidence?
So
elements
present,
exception
rule is estab-
to the
trustworthiness are
lished.
of the victim to others
The admission of the reliable statements
right
my opinion,
not, in
violate the
as an
of the
States
June
the
witness,
the United
as set forth
accused
Supreme
confront
*6
(Case
Coy
Iowa,
86-6757, decided
v.
No.
Court in
face
Evans,
Green,
United
all those who
29,1988).
99 U.
3. The four adults properly to them hearsay. the victim admissible as probative such,
As
would have whatever
value
support
it,
See,
would care to attach to
a verdict.
could
Higgs
e.g.,
supra.
606,
statements,
victim’s
considered with
circumstantial evidence that
bedroom,
defendant locked himself and the
in her
victim
medical
hymen
ruptured,
money,
evidence that the victim’s
had been
and the
trips
gifts
appellant provided
clothes,
that the
the victim would
appellant guilty beyond
authorize a rational trier of fact to find
Virginia,
Jackson v.
reasonable doubt. See
Judge McMurray Judge join Benham in this dissent. July 198 Decided Rehearing August denied Bignault, W. Paschal John Calhoun, III, R. Malcolm MacKenzie appellant. Kondritzer, Kenneth D. Attorney, appellee. Johnston,
J. Lane District (two cases). 76283, 76418. VOGTLE v. COLEMAN Judge. Sognier, Vogtle appeals judgment Alvin from the on the verdict awarding litigation $35,000 Woodrow Coleman abusive Case Vogtle’s appeal No. It consolidated with Case No. 76418 from the trial court’s award favor Coleman for