On appeal from his conviction for child molestation, Myron Sheppard argues that Georgia’s Child Hearsay Statute (OCGA § 24-3-16) is unconstitutional and was unconstitutionally applied in his cаse. Sheppard also argues that the trial court erred when it admitted similar transaction evidence without holding a Uniform Superior Court Rule 31.3 (B) hearing pursuant to
Williams v. State,
“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with thе defendant no longer enjoying a presumption of innocence.” (Citation omitted.)
Reese v. State,
So viewed, the record shows that on Christmas Eve 1992, Sheppard was lying beneath the victim, who was seven years old at the time, when he put his tongue into her mouth and placed her hand on his erect penis. After the victim got up to go to bed in another room, Sheppard followed her into the room, lay down beside her, put his hand down her pants, and touched her vagina. As the family moved from Putnam County, where the first incident occurred, to Jasper County, where the attacks continued, the victim told her mother and some friends about them. For some time, the victim’s mother accepted her husband’s denials. When the victim told her mother some years later about one fondling incident immediately аfter it occurred, however, the mother confronted Sheppard, who stopped the molestation but denied that the abuse had occurred.
In 2002, the Baldwin County Department of Family and Children Services (“DFACS”) received a tip and approached the victim at her school, at which time she confirmed that the molestation had occurred. Shеppard left the family’s house the next day, traveling to Kentucky, Arkansas, Mexico and Belize before being apprehended in Costa Rica. Sheppard tried at least twiсe to convince the victim to recant. A jury found Sheppard guilty of two counts of child molestation, and he was sentenced to twenty years with ten to serve. His motion for new triаl was denied.
1. Sheppard does not challenge the sufficiency of the evidence against him. We have reviewed the record, however, and find that the evidence was sufficient for a rational trier of fact to have found him guilty beyond a reasonable doubt of the charged offenses. OCGA § 16-6-4 (a) (defining child molestation);
Jackson v. Virginia,
supra; see also
Johnson v. State,
2. The gravamen of Sheppard’s first two assertions of error is that his conviction must be overturned because the Georgia Child Hearsay Statute, OCGA § 24-3-16, is unconstitutional in light of the U. S. Supreme Court’s decision in
Crawford v. Washington,
*272
Citing our decision in
Estes v. State,
To the extent Sheppard suggests that OCGA § 24-3-16 was unconstitutionally applied to admit each of the statements he identifies as depriving him of his right to confront witnesses, we note that although the U. S. Supreme Court’s decision in
Crawford
appeared some months before his trial, Sheppard made no objection on that basis to any of the statements of which he now complains.
1
He has thus waived these objections on appeal.
Estes,
3. Sheppard also argues that the trial court errеd when it admitted testimony concerning nine similar transactions without making the requisite Williams findings. We agree.
Rule 31.3 (B) requires the State to make three affirmative showings: (1) the similar transaction evidence is offered for some purpose other than to show a probability that the defendant committed the crime on trial because the defendant is a person of criminal chаracter; (2) the accused committed the independent offenses; and (3) a sufficient connection or similarity between the prior offense and the offense chargеd such that proof of the former tends to prove the latter.
Hall v. State,
After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense оr act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particulаr independent offense or act.
*273
(Footnote omitted.)
Williams,
At the times Sheppard molested them, the victims of the similar transactions ranged in age from ten to sixteen years old. Sheppard’s sexuаl abuse of children, “regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, [would be] of sufficient similarity to make the еvidence admissible.” (Citations omitted.)
Oller v. State,
Although the State timely filed a notice of intent to introduce evidence of these similar transactions and asserts that a Rule 31.3 (B) hearing was hеld below, we have not seen either a transcript of or explicit references to such a hearing in the record before us. Thus “we cannot state that the trial court followed the correct procedures for admitting any of the transactions.”
Hall,
Although Sheppard failed to object to the admission of some of the allegedly objectionable testimony, this Court has held that a defendant “bears no burden to initiate” Rule 31.3 (B) procedures and that a defendant’s failure to object to the absence of such procedures “does not constitute a waiver.”
Riddle v. State,
We therefore vacate the trial court’s judgment of conviction and remand this case to the trial court with direction that it determine whether a Rule 31.3 (B) hearing has already been held and, if not, to hold such a hearing.
Hall,
If the trial court determines that the State’s [similar transaction] evidence does not meet the standards of Will *274 iams v. State, or if its probative value is substantially outweighed by its prejudicial effect, a new trial is required.
(Footnote omitted.)
Clarke v. State,
Judgment vacated and case remanded with direction.
Notes
At the conclusion of his brief, Sheppаrd asserts that he “continually objected to the hearsay testimony and registered a continuing objection,” but provides no citation to the record for this assertion. See Court of Appeals Rule 25 (a) (1) (appellant’s brief shall include “the citation of such parts of the record or transcript essential to a consideration of the errors complained of” and “a statement of the method by which each enumeration of error was preserved for consideration”).