Sticher v. State

Johnson, Judge. Rhuel Sticher appeals from his conviction of child molestation and the denial of his motion for a new trial. 1. Sticher contends that the court erred in admitting, pursuant to OCGA § 24-3-16, hearsay evidence of statements made by the 12-year-old victim about the molestation. The evidence complained of is the testimony of a school counselor, the testimony of a Department of Family & Children Services (DFCS) caseworker and two videotaped interviews of the child. Sticher’s complaint that he was denied his right to confront his accuser by such evidence is without merit because the child testified at trial and was thoroughly cross-examined. Reynolds v. State, 257 Ga. 725 (363 SE2d 249) (1988); Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987); Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987); Frazier v. State, 195 Ga. App. 109, 112 (7) (393 SE2d 262) (1990). Sticher’s argument that the hearsay evidence was not reliable is without merit as a review of the trial transcript reveals sufficient indicia of reliability. Gregg v. State, 201 Ga. App. 238 (3) (411 SE2d 65) (1991). His claim that the evidence was inadmissible because it bolstered the child’s trial testimony also is not persuasive. “[OCGA § 24-3-16] actually contemplates testimony about what the child victim said and did relevant to the alleged sexual contact from both the child and those witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’ The purpose of this procedure is to allow a defendant to exercise his right of confrontation without requiring him to be cast unfavorably before the jury for forcing the child to testify. Any ‘bolstering’ can be explored by defendant in cross-examination.” Rayburn v. State, 194 Ga. App. 676, 677 (3) (391 SE2d 780) (1990). The trial court did not err in admitting the evidence. 2. Sticher claims that the court erred in denying his motion for a new trial because the State improperly withheld a nurse’s written report of a physical examination of the victim. The report, however, was not in the State’s possession. It is undisputed that both Sticher and the State were first made aware of the report at trial during Sticher’s [424] cross-examination of the DFCS caseworker, who had possession of the report. The caseworker then gave a copy of the report to Sticher, which he used to cross-examine the witness. Sticher admits that prior to trial he was given a copy of the State’s entire file. “Appellant made no showing that the information was in the State’s file rather than in the possession of [DFCS]. If the material was not in the State’s own file, it was not required to investigate the defendant’s case for him. [Cit.]” Frazier v. State, 195 Ga. App. 109, 112 (6) (393 SE2d 262) (1990). Because the State did not improperly withhold any information, Sticher is not entitled to a new trial on this ground. 3. Sticher argues that the court erred in refusing to admit the nurse’s report into evidence. Specifically, Sticher wanted the court to admit a portion of the report on which the nurse apparently gave her opinion that there was questionable digital penetration of the child’s vagina. “If the . . . report at issue contains the opinions or conclusions of a third party not before the [court,] those portions of the report are inadmissible hearsay until a proper foundation has been laid, i.e., the person who entered such opinions or conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.” (Citations and punctuation omitted.) Dept. of Human Resources v. Corbin, 202 Ga. App. 10 (413 SE2d 484) (1991). Sticher did not lay a proper foundation for the report because the nurse did not testify. The portion of the report he attempted to introduce was therefore inadmissible hearsay. The court did not err in excluding it. Judgment affirmed. Blackburn and Smith, JJ., concur specially.