Defendant Jerry Lee Smith was charged in a special presentment with aggravated child molestation (Count 1), and three counts of child molestation. The evidence adduced at his jury trial revealed the following: the victim, five years old at the time of the incidents, was observed bothering other kindergarten students. According to Karen Smith, the victim’s teaсher, this “meant that [the victim] had been pinning her [the other student] down to the bus seat, kissing her and pulling down her pants. So [Ms. Smith] talked to [the victim] about the situation and she said it happened. She said, ‘Jerry did it to me.’ . . . She said, ‘He would pull my pants down and he would kiss me,’ ” whereupon Ms. Smith notified the Department of Family & Children Services and also the victim’s foster parents. Kim Wilson, а child abuse investigator for the Polk County Department of Family & Children Services, interviewed the victim. Ms. Wilson “asked her did she know about private parts and had anyone touched her on the private parts, and she said that Jerry had. [Ms. Wilson] asked her who Jerry was, and she said Jerry Smith,” i.e., defendant. “She said he was a man that stayed at her house some. That’s how she described him.”
The victim told Ms. Wilson that “Jerry wanted her to sleep with him when he would stay at her house. And he would come and get her from her bed and take her to his bed and would takе down her pajama bottoms and panties. She state[d] that he touched her on her privates and that he would have her rub lotion on him.” The victim further told Ms. Wilson “that he [defendant] would touch her private parts with his hand and with his finger. And she would state that he would put his mouth on her private part.” The child demonstrated this with anatomically correct dolls. “She thеn took the male doll, *145 pulled down its pants, exposed the penis and then put the penis up to the female doll’s vaginal area. She didn’t try to insert it. She put it to there and said that that hurt. And then she said that this had happened several times with Mr. Smith.”
Robin Boatner, the victim’s foster mother, also related statements made by the victim. When Ms. Boatner was questioning the victim about her behavior on the bus, the victim stated, “ ‘Everybody does me that way.’ ” When asked “what she meant when she said everybody does her that way, [the victim] said that Jerry and [another adult male] had done her that way. . . . She said that he [Jerry] put his mouth on her privates and put his fingers in her privates.” Ms. Boatner “asked her where her mother was at the time, and she said her mother was there. That they did her mother the same way, and that her mother would just tell her to kick them and make them leave her alone.”
Special Agent Russell Leе Andrews of the Georgia Bureau of Investigation interviewed defendant at the Polk County Police Department. After being informed of his rights, defendant agreed to make a statеment. “He indicated that at times, [the victim] would wake up in the middle of the night and that she would come over and get into the bed with him. He said at times she would have her underwear on and sometimes she had her underwear off. He indicated that on several occasions he had taken his hand and had touched [the victim’s] vaginal area with his hand. He also indicated on several occasions [the victim] had bounced up and down on his face in such a way where her vaginal area would have touched his mouth.”
Although the cоurt called the victim to the stand for purposes of cross-examination, the then-six-year-old would not respond orally to any questions but would merely shake or nod her heаd. The jury acquitted defendant of all three charges of child molestation but found him guilty of aggravated child molestation as alleged in Count 1 of the special presentmеnt. After the court received evidence of defendant’s prior conviction for incest, defendant was sentenced to serve 30 years imprisonment. From the judgment of conviction and sentence entered on the jury’s verdict defendant brings this direct appeal. Held:
1. Over defendant’s objection that the answer “would be bolstering,” the State’s Attorney was permitted to ask Kim Wilson if the victim “ever change[d] what she [said] happened to her involving [defendant]?” Ms. Wilson answered: “No, sir. She never changed from the first interview to the second. She was able to give me more detail, but she did not change anything she said.” This evidentiary ruling is enumerated as error.
The Supreme Court of Georgia “stated in
Gibbons v. State,
248
*146
Ga. 858, 862 (
2. Over defendant’s objection that the recording of an interview of the victim would be the “best witness” as to what transpired during that interview, the trial court permitted Kim Wilson to tеstify that the victim did not tell the interviewer, Mrs. Aldridge, anything different; that the victim has “always been consistent with her story.” This evidentiary ruling is enumerated as error.
Defendant’s stated objection is truly in thе nature of a “best evidence” objection. “The contents of a conversation or statement which are captured on videotape are not subject to a ‘best evidence’ objection because the ‘best evidence’ rule applies only to writings.
Perkins v. State,
3. When the trial court called the victim as a witness, the six-year-old child refused to аnswer most direct questions, and then responded only with a shake or a nod of her head, never articulating a response. Since the victim refused to testify, defendant concluded that cross-examination was both futile and dangerous. He moved to strike all testimony about statements made by the victim to the adults who did testify. The overruling of that motion to strike is enumerated.
“The Child Hearsay Statute, OCGA § 24-3-16, creates an exception to the hearsay rule for statements made by a child under the age of 14 describing any act of sexual abuse ‘if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.’ The law requires only that the child be available to testify; it does not require the child to corroborate the hearsay testimony. See
Reynolds v. State,
*147
In the casе sub judice, the trial court did not err in refusing to strike the testimony of the adult witnesses who related the child’s out-of-court statements to them, in which the victim described acts of sexual abuse and child molestation, in spite of the victim’s unresponsiveness as a witness when called by the court.
Byrd v. State,
4. Defendant’s fourth enumeration contends the trial court erred in denying his motion for directed verdict of acquittal, arguing the only competent evidence of aggravated child molestation is defendant’s own statement, which shows at most only an accidental touching of his mouth to the child’s vagina.
“Whether an act is committed with the requisite criminal intent is a question for the jury ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6. See
Blanton v. State,
Judgment affirmed.