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Docket Number

74756.

Attorney(S)

Frank Armstrong III, for appellant. C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judges

DEEN, Presiding Judge.

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Smart Summary

Case Summary: Newberry v. The State, Court of Appeals of Georgia (Sept. 8, 1987)

Factual and Procedural Background

Carl Watson Newberry appealed his conviction for child molestation following the denial of his motion for a new trial. The evidence at trial included testimony from a four-year-old child who related that, in October 1985, Newberry "messed" with her in a pig's house, held her down, and put his tongue and his "hickey" in her bottom. The child did not call for help because she feared "the wild dogs" and said Newberry held her down. The trial court found the child competent to testify. During trial the child used anatomically correct dolls to demonstrate the conduct she described.

The record shows the child apparently first reported the incident to her mother's boyfriend and his mother, who took no action. Approximately six months later the mother reported the incident to police. A Department of Family and Children Services (DFCS) worker conducted and videotaped an interview of the child three days after the police report. Foster parents testified that in May 1986 the child, without prompting, described the molestation to them while in the car. The videotaped DFCS interview was offered into evidence at trial and viewed by the jury. Newberry appealed, primarily challenging the admission of the child's videotaped statement.

Legal Issues Presented

Whether OCGA § 24-3-16 requires a court to make an explicit finding of "necessity" before admitting a child's out-of-court statement describing sexual contact as substantive evidence.
Whether the trial court properly found that the child's videotaped statement bore sufficient indicia of reliability to be admitted into evidence.
Whether the trial court erred in permitting the jury to view the videotaped statement after a foundation was laid.
Whether a child witness must be found competent during an investigative (out-of-court) interview before the substance of that interview can be admitted into evidence.
Whether the recent holding in Sosebee v. State applied to this case.

Arguments of the Parties

Appellant's Arguments

The trial court erred in admitting the child's videotaped statement without first finding "necessity" for use of the statement.
Admission of the videotaped statement without a necessity finding violated Newberry's confrontation rights under the United States and Georgia Constitutions (an argument raised in his appellate brief).

The opinion does not contain a detailed account of the State's separate trial- or appellate-level arguments beyond the court's own analysis and citations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Richardson v. State, 256 Ga. 746 (353 S.E.2d 342) (1987)	Prior consistent statements of a witness who testifies and is subject to cross-examination are admissible as substantive evidence.	The court cited Richardson to support the proposition that OCGA § 24-3-16 codifies this rule for children under 14 and thus does not require a finding of "necessity" before admitting such statements.
Cuzzort v. State, 254 Ga. 745 (334 S.E.2d 661) (1985)	Same principle regarding admissibility of prior consistent statements by a testifying witness.	Used alongside Richardson to show OCGA § 24-3-16 is a statutory codification of that rule for child abuse/molestation statements.
Ohio v. Roberts, 448 U.S. 56 (1980)	Addresses Confrontation Clause issues when relying on unavailable witnesses and the necessity of indicia of reliability for prior testimony.	The court distinguished Roberts, noting Roberts involved clearly unavailable former testimony; OCGA § 24-3-16 both requires witness availability and indicia of reliability, thereby protecting confrontation rights in the instant factual setting.
Brooks v. State, 141 Ga. App. 725, 734 (234 S.E.2d 541) (1977)	Sets forth requirements for admission of an audiotape (mechanical capability, operator competence, authenticity, preservation, identification of speakers, voluntariness, etc.).	The court found that the videotape met the Brooks criteria (mechanical capability/accuracy, competent operator, authenticity, dating, preservation, speaker identification, voluntary elicitation) and therefore was admissible.
Scott v. State, 177 Ga. App. 474 (339 S.E.2d 718) (1985)	Enumerations of error on appeal may not be enlarged by issues raised only in the appellate brief.	The court applied Scott to reject appellant's attempt to raise a constitutional confrontation claim for the first time in his appellate brief when that issue was not contained in the original enumeration.
Sosebee v. State, 257 Ga. 298 (357 S.E.2d 562) (1987)	(As referenced) A recent holding addressing circumstances relevant to the admissibility of certain statements or testimony.	The court held Sosebee was inapplicable here because the child witness was present at trial, testified, and was cross-examined.

Court's Reasoning and Analysis

The court's analysis proceeds in several discrete steps:

Statutory construction and necessity finding: The court interpreted OCGA § 24-3-16, concluding the statute does not require an explicit judicial finding of "necessity" before admitting a child's out-of-court statement describing sexual contact. Instead, the statute permits admission when the child is available to testify and the circumstances provide sufficient indicia of reliability. The court treated OCGA § 24-3-16 as a codification of the existing rule allowing prior consistent statements of a testifying witness to be admitted substantively.
Confrontation clause argument and preservation: Although appellant argued a confrontation violation in his brief, the court determined this constitutional claim was not properly enumerated on appeal and therefore could not be expanded by appellate brief alone (citing Scott v. State). Consequently, the court did not decide the constitutional claim on the merits.
Indicia of reliability for the videotape: The court evaluated whether the videotaped DFCS interview exhibited sufficient reliability. It found the following were established: the mechanical capability and accuracy of the videotaping equipment, competency of the operator, authenticity and dating of the tape, proper preservation, identification of speakers, and that the child's statements were voluntarily elicited without duress. Applying the Brooks criteria for admission of recorded interviews, the court concluded the videotape met the requisite reliability standards.
Temporal delay and spontaneity: The court noted that the videotape was made several months after the alleged incident but held that the lapse of time alone did not render the statement unreliable. The trial court had considered the atmosphere, spontaneity of the child's statements to the interviewer, and the child's demeanor in assessing reliability.
Jury viewing and foundation: Because the videotape was admissible, the court found no error in permitting the jury to view it. The DFCS worker who participated in the interview testified as to her qualifications, the reasons and conditions for making the tape, and its accuracy; she was cross-examined, satisfying foundation requirements.
Competency determination during investigative interview: The court explained OCGA § 24-9-7 requires a trial determination of a child's competency to testify at trial but does not mandate a competency finding for out-of-court investigative interviews, so no such preliminary competency finding was required to admit the videotaped interview.
Applicability of Sosebee: Finally, the court determined the recent decision in Sosebee v. State did not apply because, in the present case, the child was present at trial and subject to cross-examination.

Holding and Implications

Judgment affirmed.

Implications:

The direct effect is that Newberry's conviction and the trial court's denial of his motion for a new trial were affirmed; the videotaped DFCS interview was properly admitted and shown to the jury under the court's assessment of statutory standards and evidentiary foundation.
The court explicitly declined to find that OCGA § 24-3-16 requires a separate "necessity" finding, and it emphasized the dual protections of the statute—availability of the child witness and sufficient indicia of reliability—when addressing confrontation concerns in this factual context.
The opinion does not announce or claim to establish a novel or broader precedent beyond applying existing statutory and case law to the facts; no broader implications were discussed beyond the direct appellate disposition.

Concurrence: Birdsong, C. J., and Pope, J., concurred. Rehearing denied September 29, 1987.

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NEWBERRY v. THE STATE.

DEEN, Presiding Judge.

Carl Watson Newberry appeals from his conviction of child molestation following the denial of his motion for a new trial. The evidence showed that the four-year-old daughter of his brother's girl friend contended that in October of 1985 he had "messed" with her at the pig's house" and that he "licked (her) bottom" while holding on to her, put his tongue in her bottom and his "hickey" in her bottom. The child did not call for help because "the wild dogs would have gotten me," and she could not get away from the defendant because "he held me down." The trial court determined that the child was competent to testify and during her testimony she utilized anatomically correct male and female dolls to show how Newberry had "done it." She apparently reported the incident to her mother's boyfriend and his mother, but they took no action. Approximately six months later, the child's mother reported the incident to the police. A child protective services worker with the Department of Family and Childrens Services (DFCS) testified that she conducted a videotaped interview with the child three days after the incident was reported to the police. The child's foster parents testified that during May of 1986 the child, without any prompting or encouragement, described the molestation to them while they were driving in the car.

1. Newberry first contends that the court below erred in permitting the child's videotaped statement to be admitted into evidence without first finding "necessity" for the use of the statement.

OCGA § 24-3-16 provides that "A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse 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."

Contrary to appellant's assertion OCGA § 24-3-16 does not require the court to make a finding of necessity before admitting such a statement into evidence. Prior consistent statements of a witness who takes the stand and is subject to cross-examination are admissible as substantive evidence. See Richardson v. State, 256 Ga. 746 ( 353 S.E.2d 342) (1987); Cuzzort v. State, 254 Ga. 745 ( 334 S.E.2d 661) (1985). OCGA § 24-3-16 is a codification of this rule as applied to children who have been abused or molested and are under the age of 14 and permits a child to give a statement, shortly after an incident occurs, in a non-threatening atmosphere. The transcript shows that the child was available for cross-examination as required by the statute. Her veracity was tested by the cross-examination of the DFCS employee and her foster parents. Appellant's reliance upon Ohio v. Roberts, 448 U.S. 56 (100 SC 2531, 65 L.Ed.2d 597) (1980), is misplaced, as the facts are quite different from those in the instant case. In that case, the prosecution offered the former testimony of an unavailable witness whose unavailability was clearly shown, and the court found that her prior testimony bore a sufficient indicia of reliability. Unlike certain problems envisioned in Ohio v. Roberts, OCGA § 24-3-16 protects the defendant's constitutional right of confrontation by affording defendant the dual protection of requiring both the availability of the witness and a sufficient indicia of reliability.

In his brief appellant argues that his right of confrontation under the United States and Georgia Constitutions is violated because the court below failed to make a finding of necessity before admitting the videotape into evidence. The enumeration in question does not address this constitutional issue. Enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. Scott v. State, 177 Ga. App. 474 ( 339 S.E.2d 718) (1985).

2. The trial court correctly held that the child's videotaped statements were surrounded by a sufficient indicia of reliability to be admitted into evidence. The mechanical capability of the videotaping equipment and the accuracy of the tape was shown; the operator was proved to be competent; the authenticity of the videotape was established; the tape was dated; the manner in which the tape was preserved was shown; the speakers were identified on the tape; and the testimony was shown to be voluntarily elicited without any kind of duress. As all of the requirements for the admission of an audiotape were met in this case as they are set forth in Brooks v. State, 141 Ga. App. 725, 734 ( 234 S.E.2d 541) (1977), it was admissible into evidence. The fact that it was made several months after the alleged incident does not, in and of itself, make the statement unreliable. The court considered the atmosphere and circumstances under which it was made, the spontaneity of the child's statements to the interviewer, and the child's general demeanor in making its ruling upon the reliability of the statement. We find no merit in this enumeration.

3. As the videotape of the child's statement was admissible into evidence, there is no merit in appellant's assertion that the trial court erred in permitting the jury to view it. Before it was shown to the jury, a proper foundation was laid for its introduction into evidence as the DFCS worker who participated in making the tape testified as to her qualifications and stated the reason for making the tape, the conditions under which it was made and its accuracy. She was then extensively cross-examined by defense counsel.

4. There is no requirement that the trial court must determine competency of a child witness during an investigative interview before the substance of that interview can be admitted into evidence. OCGA § 24-9-7 contemplates only that a small child be found competent to testify at trial and this code section has no applicability to out-of-court statements.

5. As the child was present at trial, testified and was cross-examined, the recent holding in Sosebee v. State, 257 Ga. 298 ( 357 S.E.2d 562) (1987) is not applicable.

Judgment affirmed. Birdsong, C. J., and Pope, J., concur.