Defendant appeals his conviction of three counts of the offense of aggravated child molestation. Held:
1. At trial, defense counsel sought to elicit testimony from the victim on cross-examination and to introduce documentary evidence for the purpose of establishing the victim's ideas and bent of mind about sexual activity so as to explain her allegations against defendant as a fabrication derived from "the phase she's in." The trial court did not allow the admission of this evidence and defendant enumerates as error the exclusion of the documentary evidence, several letters authored by the victim discussing boys and sexual activities.
2. Defendant contends the trial court erred in permitting two witnesses to testify concerning an outcry made by the victim some four months after the last incident of child molestation. The evidence at issue was properly admitted under both the rule stated in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661)
, and under OCGA 24-3-16
. While the outcry occurred prior to the effective date of OCGA 24-3-16
, the determinative date as to the applicability of OCGA 24-3-16
was the date of trial. Accord Williams v. State, 180 Ga. App. 562 (1)
, 564 (349 SE2d 797
BEASLEY, Judge, concurring specially.
I concur fully in Division 1. I concur in Division 2 but for the reason that OCGA 24-3-16
authorized the admission of the evidence. The citation to Williams v. State, 180 Ga. App. 562 (1) (349 SE2d 797) (1986)
brings into play another exception to the hearsay rule, i.e., res gestae. That would not be applicable here, where the report of the incident was not contemporaneous and thus not generally regarded as an "outcry." Instead, the report consisted of statements made some four months after the incident, when it could not be said to be "free from all suspicion of device or afterthought." OCGA 24-3-3
; Taylor v. State, 176 Ga. App. 567
, 573 (4) (b) (336 SE2d 832
Thomas C. Lawler III, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.