In the Interest of S. S.
281 Ga. App. 781
Ga. Ct. App.
2006
Check Treatment
Adams, Judge.

Fоllowing a bench hearing, the Juvenile Court of Upson County adjudicatedS. S. delinquent on the charge of child molestation, which S. S. committed when he was 14 years old. He appeals, arguing that the only evidence supporting a finding оf delinquency was inadmissible hearsay and that the admissible evidence was insufficient to support an adjudication of delinquency.

The juvenile court judge allowed the six-year-old victim’s mother, sister and the investigating officer to tеstify about statements made to them by the victim concerning the molestation. Following the close of the Statе’s case, defense counsel indicated she wanted to call the victim to the stand for the purpose оf cross-examination. The judge conferred with the prosecutor, and agreed they did not want to have *782the victim testify in the courtroom. Defense counsel posed no objection, and the juvenile court judge suggested thеy take the microphone into his chambers and conduct the examination of the witness there. Defense сounsel again did not object to this procedure. Although the proceedings in chambers were not transcribеd, following the return to the courtroom, the juvenile court judge recited on the record that it was not in the best intеrest of the child to be questioned, “given the fact that we can’t get any information out of the young lady.” Defense counsel then moved for a dismissal of the petition, arguing that the hearsay testimony of the three witnesses was inadmissible because the child was not available for cross-examination. The juvenile court judge denied the mоtion, finding that

as far as availability, she is here. She sat back there. And we had an opportunity to talk to her. Now аs far as — as whether or not she’s going to give us any information, it appears that... she’s not ‍‌​‌​‌‌‌​‌‌‌‌​​‌‌‌​‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌‌​​‌‌‌​​‌‍going to talk to us. We all sаt out there and — and tried to warm up this child and she won’t talk to us. And, now, I’m not going to let you browbeat this child. It’s not in that child’s best interest.

Relying on Hines v. State, 248 Ga. App. 752 (548 SE2d 642) (2001), S. S. contends that the juvenile court erred by allowing the witnesses to testify concerning the statements the victim mаde to them about the molestation because she was not “available” to testify within the meaning of OCGA § 24-3-16. In Hines, the child would not take the stand and the trial court excused the child without him ever being sworn and examined as a witness. Id. at 754. In that сircumstance, we held that the child was “unavailable” within the meaning of OCGA § 24-3-16, and the statements the child made to his mother were inadmissible. Id.

However, there is also a line of cases1 in which we have held that a child who is uncommunicative, unresponsive or evasive during questioning is available within the meaning of OCGA ‍‌​‌​‌‌‌​‌‌‌‌​​‌‌‌​‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌‌​​‌‌‌​​‌‍§ 24-3-16. As we explained in Bright v. State, 197 Ga. App. 784 (400 SE2d 18) (1990),

[s]o long as the witness is made available for confrontation and сross-examination, the defendant’s rights are protected, even if the witness is uncommunicative or unresponsivе. The thrust of the child witness statute is to allow the jury, *783which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child’s accusations. If a child, who has reported child molestation to an adult permitted tо testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child’s credibility, taking into consideration the child’s maturity and ability to withstand the pressure and intimidation of the courtroom environment. The manner in which the witness responds to cross-examination is, itself, evidence as to credibility.

Id. at 785 (4).

The State argues that since this case was being tried before the juvenile court judge, and not a jury, this case is distinguishable from Hines and should be governed by Bright and similar cases. We agree. Although thе attempt to examine the child occurred in the judge’s chambers and not in open court, and although it doеs not appear that the child was actually placed under oath, the juvenile court judge, as the trier of fact, witnessed the child’s demeanor and unresponsiveness. Having observed the child’s unwillingness or inability to answer questions, the judge then made a legal ruling ‍‌​‌​‌‌‌​‌‌‌‌​​‌‌‌​‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌‌​​‌‌‌​​‌‍that the child was available but that no further purpose would be served by having the child examined in the open courtroom. “The trial court has broad discretion in determining the admissibility of child hearsаy evidence, and we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discrеtion.” (Citation and punctuation omitted.) Fiek v. State, 266 Ga. App. 523, 524 (1) (597 SE2d 585) (2004). We find no abuse of discretion under the particular circumstances оf this case.

S. S. also argues the statements were inadmissible under Crawford v. Washington, 541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004), and Georgia cases applying Crawford, because the hearsay statements were testimonial in nаture and he did not confront and cross-examine the child. Although the Supreme Court did not provide a comprehensive definition of “testimonial” statements, they include, at the very least, statements made by witnesses to government officers investigating a crime. Jenkins v. State, 278 Ga. 598, 605-606 (2) (604 SE2d 789) (2004), and cites. However, the statements the child made to her sister and her ‍‌​‌​‌‌‌​‌‌‌‌​​‌‌‌​‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌‌​​‌‌‌​​‌‍mother аbout the molestation were not testimonial and thus did not run afoul of Crawford. Gonzalez v. State, 277 Ga. App. 362, 367-368 (4) (626 SE2d 569) (2006) (statements made with no reasonable exрectation that they would be used at a later trial were not testimonial in nature). Thus, even assuming for the sake оf this argument that the officer’s statement was wrongly *784admitted, that evidence was merely cumulative of other properly admitted testimony, and its admission does not require reversal. Chapman v. State, 280 Ga. 560 (2) (629 SE2d 220) (2006) (A Crawford violation is harmless where the inadmissible testimony was cumulative of other admissible evidence.).

Decided October 5, 2006. Monica N. Hamlett, for appellant. Scott L. Ballard, District Attorney, Josh ‍‌​‌​‌‌‌​‌‌‌‌​​‌‌‌​‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌‌​​‌‌‌​​‌‍W. Thacker, Assistant District Attorney, for appellee.

The prоperly admitted evidence was sufficient to support the adjudication of delinquency based upon the acts charged. In the Interest of M. C. A, 263 Ga. App. 770 (589 SE2d 331) (2003); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J., and Mikell, J., concur.

Notes

Bell v. State, 263 Ga. App. 894, 896 (589 SE2d 653) (2003); Smith v. State, 228 Ga. App. 144, 146 (3) (491 SE2d 194) (1997); Byrd v. State, 204 Ga. App. 252, 253 (1) (419 SE2d 111) (1992).