SECOND DIVISION

BARNES, P. J.,

RICKMAN and SELF, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

January 24, 2017

In the Court of Appeals of Georgia

A16A1801. LASTER v. THE STATE.

RICKMAN, Judge.

Following a jury trial in 2014, Richard Earl Laster was convicted of child

molestation and sexual battery against a child under the age of 16.

1 He filed a motion

for new trial, which the trial court denied. Laster contends on appeal that the trial

court erroneously: (1) overruled his objection to the hearsay testimony of several

witnesses who took to the witness stand before the child victim and who relayed

statements made to them by the child victim; and (2) instructed the jury that, as to the

offense of sexual battery, a child under the age of 16 lacks the legal capacity to

1 Laster was found guilty of a second count of sexual battery against a child

under the age of 16; however, that count merged into Laster’s child molestation

conviction for sentencing purposes.
consent to sexual conduct. For the following reasons, we reverse Laster’s conviction

of sexual battery. We affirm in all other respects.

On appeal from a criminal conviction, we view the evidence in the

light most favorable to support the jury’s verdict, and the defendant no

longer enjoys a presumption of innocence. We do not weigh the

evidence or judge the credibility of the witnesses, but determine only

whether the evidence authorized the jury to find the defendant guilty of

the crimes beyond a reasonable doubt in accordance with the standard

set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LEd2d

560) (1979).

Bledson v. State, 337 Ga. App. 444 (787 SE2d 809) (2016).

So construed, the evidence adduced at trial showed that Laster and his wife

were close friends of the victim’s family, and that the victim and her little sister used

to disembark their school bus at Laster’s home and remain there until their mother

returned from work. In November 2012, the victim’s stepfather discovered sexually

explicit text messages that Laster, then 29-years old, had sent to the victim, then 13-

years old. The text messages included a reference to Laster’s need “to control

[himself] around [the victim] . . . so [her mother] don’t think anything” and his

assertion that he was “the only one who [could] touch the [victim’s] Hello Kitty spot

and make [her] . . . collapse.”

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The stepfather showed the text messages to the victim’s aunt, who questioned

the victim about them. The victim admitted to her aunt that Laster had kissed her and

had touched her vagina, and stated that Laster was her boyfriend and that they loved

each other. The victim later told her mother that she “had feelings” for Laster.

The victim’s family alerted law enforcement officials and the victim told the

investigating detective that she and Laster “were close,” and that he had kissed her

and touched her vagina on at least one occasion. The victim was subsequently taken

to a children’s advocacy center for a forensic interview. There, she revealed to the

forensic interviewer that she was 12 years old when Laster began touching her

intimately. She later elaborated that the touching began after Laster told her that her

stepfather had asked him “to test” her. Over the course of the next several months,

Laster repeatedly molested the victim, touching her chest, buttocks, and vagina, the

latter of which he referred to as her “Hello Kitty.” Although the victim initially

considered their relationship to be one of “a father-daughter-type,” she grew to

believe that Laster loved her intimately, and the two discussed a future marriage.

Laster provided the victim with a “secret” cellular phone through which they

communicated daily, and at some point, representing himself as “an uncle or like an

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uncle,” Laster began regularly visiting the victim at school without her parents’

knowledge, pulling her out of class for up to an hour-and-a-half at a time. 

Laster was subsequently arrested and charged, and the victim testified at trial

to events consistent with those set forth above. The victim’s mother also testified and

identified three letters written by Laster: the first, written to the victim, was sexually

explicit and implored the victim to “please, please, please, keep [the cell phone he

intended to provide] out of sight”; the second, also written to the victim, included

Laster’s declarations of love for her, discussed how she was “growing sexier . . . by

the hour,” and mentioned his excitement about DJ’ing at her impending thirteenth

birthday party; and the third, written to the victim’s parents after his text messages

has been discovered, contained Laster’s apology that the “Hello Kitty” text message

“didn’t look right” and explained that contrary to all appearances, he was simply

referring to the victim’s Hello Kitty headphones.

Laster testified in his own defense and denied any inappropriate contact with

the child. He claimed that the text messages were an innocent misunderstanding,

denied that he was the author of the love letters to the victim, and maintained that his

visits to the victim’s school were merely lunch visits.

The jury convicted Laster of the crimes charged. This appeal follows.

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1. Laster argues that the trial court erred in overruling his objection to the

testimony of the victim’s aunt, the victim’s mother, and the investigating detective,

all of whom took the witness stand before the victim and relayed statements the

victim made to them regarding Laster’s abuse. Laster contends that the collective

testimony bolstered the victim’s testimony before her credibility had been challenged.

Generally speaking, “[u]nless a witness’s veracity has affirmatively been

placed in issue, the witness’s prior consistent statement is pure hearsay evidence,

which cannot be admitted merely to corroborate the witness, or to bolster the

witness’s credibility in the eyes of the jury.” (Footnotes omitted.) Woodard v. State,

269 Ga. 317, 320 (2) (496 SE2d 896) (1998), overruled on other grounds by Bunn v.

State, 291 Ga. 183-184 (728 SE2d 569) (2012). The Child Hearsay Statute, however,

is a legislatively created exception to the general rule prohibiting such hearsay

evidence and provides that, so long as certain conditions are met, a statement made

by a child describing any act of sexual contact is admissible in evidence by the person

to whom the statement was made. See OCGA § 24-3-16 (2012).

2 As such, “the Child

2 There have been several iterations of the Child Hearsay Statute. This case is

governed by OCGA § 24-3-16 (2012), which was in effect at the time Laster

committed the offenses. See Ga. L. 2013, p. 222, § 21 (expressly providing that

“[a]ny offense occurring before July 1, 2013, shall be governed by the [Child Hearsay

Statute] in effect at the time of such offense”). OCGA § 24-3-16 (2012) provided that,

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Hearsay Statute actually contemplates testimony from both the child and those

witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’”

(Citation and punctuation omitted.) Ledford v. State, 313 Ga. App. 389, 391-392 (2)

(721 SE2d 585) (2011) (“Any ‘bolstering’ can be explored by defendant in

cross-examination.”); see also Weathersby v. State, 262 Ga. 126, 128 (4) (A) (414

SE2d 200) (1992).

Here, Laster does not assert that the statutory requirements were not met, and

we have previously held that, under OCGA § 24-3-16 (2012), the order of witnesses

is irrelevant to the question of the admissibility of child-hearsay evidence. See OCGA

§ 24-3-16 (2012); Hilliard v. State, 298 Ga. App. 473, 477 (4) (a) (680 SE2d 541)

[a] statement made by a child under the age of 14 years describing any

act of sexual contact . . . performed with or on the child by another . . .

is admissible in evidence by the testimony of the person or persons to

whom made 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.

With the adoption of the New Evidence Code, effective January 1, 2013, OCGA § 24-

3-16 was repealed and replaced with OCGA § 24-8-820, a nearly identical version of

that statute. See Ga. L. 2011, p. 99, § 2. Six months later, OCGA § 24-8-820 was

substantially revised. See Ga. L. 2013, p. 222, § 13 (effective July 1, 2013).

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(2009) (holding that the trial court did not err in allowing a witness to testify

regarding the child victim’s hearsay statements prior to the child testifying “because

OCGA § 24-3-16 allows testimony about a child’s out-of-court statements even in

cases when the child does not appear as a witness, as long as the child is available at

the trial to testify”). Accordingly, the trial court did not err in allowing the childhearsay testimony. See OCGA § 24-3-16 (2012); Hilliard v. State, 298 Ga. App. at

477 (4) (a).

2. Laster further argues that the trial court erred by instructing the jury, in

regard to the offense of sexual battery, that a child under the age of 16 lacks the legal

capacity to consent to sexual conduct. We are constrained to agree.

After instructing the jury that “[a] person commits sexual battery when that

person intentionally makes physical contact with the primary genital area and/or the

buttocks of another person without consent of the other person,” see OCGA §16-6-

22.1 (b), the trial court further charged that “[u]nder Georgia law, a person under the

age of 16 lacks legal capacity to consent to sexual conduct.”

Although the charge was a correctstatement of the law at the time it was given,

following the trial, the Supreme Court of Georgia held that the crime of sexual battery

“require[s] actual proof of the victim’s lack of consent, regardless of the victim’s

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age.” See Watson v. State, 297 Ga. 718, 720 (777 SE2d 677) (2015). Thus, the

Watson Court determined that it is erroneous for a trial court to instruct a jury that an

underage victim is not capable of consenting to contact constituting sexual battery.

Id. at 720. The instant case was in the appellate “pipeline” at the time Watson was

decided and, consequently, the Watson holding governs our analysis. See Harris v.

State, 273 Ga. 608, 610 (2) (543 SE2d 716) (2001). We therefore must determine

whether the charge was harmless, i.e., whether it is highly probable that the erroneous

charge did not contribute to the jury’s verdict. See Johnson v. State, 238 Ga. 59, 61

(230 SE2d 869) (1976); see also Franks v. State, 278 Ga. 246, 266 (6) (599 SE2d

134) (2004) (applying the highly probable test to determine whether a jury instruction

rendered erroneous by a new rule adopted while the case was in the appellate pipeline

constituted reversible error).

Following Watson, the trial court’s charge “effectively relieved the State of its

burden to prove [lack of consent,] an essential element of the crime ofsexual battery.”

Watson, 297 Ga. at 720 (2). As such, we cannot say, under the particular facts of this

case, that it is highly probable the erroneous instruction did not contribute to the

jury’s verdict. See generally Johnson, 238 Ga. at 61. It follows that we must reverse

Laster’s sexual battery conviction. See generally Warren v. State, 283 Ga. 42, 43–44

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(4) (656 SE2d 803) (2008); Cochran v. State, 276 Ga. 283, 285 (2) (576 SE2d 867)

(2003).

Judgment affirmed in part and reversed in part. Barnes, P. J., and Self, J.,

concur.

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