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Child Hearsay in Georgia

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If you are charged with child molestation, cruelty to children, or any crime, in Georgia, where a child is the alleged victim, the State will fie a Motion to Admit Child Hearsay testimony.

This is pursuant to O.C.G.A. 24-8-820. This status is the Georgia Child Hearsay Statute.

O.C.G.A. 24-8-820 reads as follows:

(a) A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at trial, unless the adverse party forfeits or waives such child’s testimony as provide in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

All that is required is:

  1. Notice to the defendant of the State’s intention to use such statements.
  2. The child testifying at trial, unless the defendant waives it.
  3. The person to whom the statements were made is subject to cross-examination.

You will need to be prepared to challenge the credibility and the underlying facts of any witness who takes the stand against you and claims that the child made statements to them about the sexual contact or physical abuse. Do not waive the child’s presence at trial. Make the child testify.

In cases of child molestation, there is rarely physical evidence. The entire case comes down to credibility. It is the defendant’s credibility vs. the child’s and the child’s witness’s credibility. Do not forfeit the right to a thorough cross-examination of the child and their witnesses.

These child hearsay witnesses can include testimony of physicians, investigators, parents, other family members, forensic interviewers and any other person who spoke to the child about the allegations.

You must be prepared to challenge each of these statements.

Child Molestation and Cruelty to Children carry severe penalties in Georgia. Do not make statements to the police about the allegations. You must hire a qualified attorney and be prepared to vigorously fight your case at trial.

Please call us at 404-581-0999 if you are charged with any crime involving a child in Georgia.

My Driver’s License is suspended from a DUI. Now what?

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There are several traffic offenses in Georgia that can lead to a suspension of your drivers license upon a conviction. The most common offense we see where a suspension will be invoked is DUI. Once your drivers license is suspended it is imperative that you immediately contact your attorney in order to file an appeal of the suspension with the administrative board.

License suspensions resulting in DUI have two different consequences based on whether you refused or consented to sobriety tests. If you refused tests, then your license could be suspended for one year.  You can lift the suspension under certain conditions, like electing to install an ignition interlock device that tests your blood-alcohol concentration roughly every 15 minutes or you can file an appeal of the suspension with the administrative license service within 30 days of your arrest.

If you consented to the sobriety tests and blow over the legal limit (.08 blood-alcohol concentration) then your license will be suspended for 30 days and you can obtain a limited permit from the Department of Driver Services to travel to/from work, doctor’s appointments, and to see your attorney.

If you have more than one DUI, the suspension will almost always be a harsher penalty. For example, if it is your second DUI within five years and you consent to tests, then you will receive an 18 month hard suspension and you will not be able to obtain a temporary permit. Because of the hard and fast deadlines for appealing license suspensions, it is imperative to contact your attorney immediately after your arrest.

Arrest for Trafficking at Hartsfield Jackson Airport

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If you or a loved one is arrested for Trafficking in Clayton County at the Atlanta airport, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The Clayton County District Attorney has a dedicated division to prosecute cases involving Trafficking case. They will vigorously prosecute you if you are transport drugs through the airport.
Do not think that just because you are innocent that the charges will be dismissed. Drug charges are aggressively prosecuted in Clayton County.

Make sure your attorney has had felony jury trials and has won these cases. Do not let an attorney handle your case who does not specifically handle drug cases. Many drug cases are won at a motions hearing. It is imperative that you get body cams, dash cams, search warrants and take witness statements of anyone involved in the search and seizure of the drugs.

The law may say you are presumed innocent but in drug cases, you have to prove your innocence.

Here is what you should do if arrested for Trafficking at the airport in Clayton County.
1. Hire an attorney – Make sure that attorney actually handles and tries drug cases in Clayton County. Most criminal defense attorneys do not handle these cases. Make sure the attorney you talk to does regularly handles drug cases in Georgia
2. Avoid making any statements – Do not proclaim your innocence to the police at the airport. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for trafficking, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
3. Start gathering important evidence
a. Gather and preserve any physical evidence in your possession.
b. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
c. Witnesses – Immediately make a list of any person who you think might have information about this accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.
Here is what you should never do if arrested for trafficking at the airport in Clayton County.
1. Never talk to law enforcement or the Clayton County District Attorney’s office without an attorney.

If you are arrested for trafficking at the airport in cocaine, heroin, marijuana, methamphetamine or any other illegal drug in Clayton County, please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Necrophilia in Fulton County

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Necrophilia is a serious crime in Georgia.

O.C.G.A. § 16-6-7: A person commits the offense of necrophilia when he performs any sexual act with a dead human body involving the sex organs of the one and the mouth, anus, penis or vagina of the other.

If you are arrested for necrophilia in Fulton County, you will be taken to first appearance the following day after your arrest. You will be the Fulton County Jail at 901 Rice Street.

The Fulton County District Attorney will indict you and you will need an attorney to zealously defend you.

A person convicted of necrophilia in Fulton County is punishable by imprisonment for not less than 1 nor more than 10 years.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Prior False Allegations Are Admissible in a Child Molestation

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You are accused with child molestation and your accuser has previously falsely accused another person of child molestation. Can you bring up these prior false accusations in your case? The answer is yes.

The Georgia Supreme Court held in State v. Burns, that a defendant in a child molestation prosecution may bring up evidence that the alleged victim has previously made false accusations of child molestation. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

If you are charged with aggravated child molestation, child molestation, sexual battery, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court.

If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999

Enticing A Child for Indecent Purposes in Dekalb County

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Enticing a child for indecent purposes is a serious crime in Dekalb County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The State must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Dekalb County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Dekalb County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

Enticing A Child for Indecent Purposes in Clayton County

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Enticing a child for indecent purposes is a serious crime in Clayton County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself. The Clayton County District Attorney’s office has a unit dedicated to prosecuting sex crimes.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The Clayton County District Attorney must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Clayton County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Clayton County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

Trafficking Marijuana at the Atlanta Airport

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If you are arrested for marijuana at the Atlanta airport, your case will likely be prosecuted in Clayton County Superior Court. The penalties you could possibly face if convicted depend on how much marijuana you have with you at the time of your arrest.

Georgia regulates marijuana through the Georgia Controlled Substance Act and O.C.G.A. §16-13-1(a)(1) says that marijuana is a controlled substance. The Georgia codes that specifically regulates marijuana crimes are O.C.G.A. § 16-13-30(j) and O.C.G.A. § 16-13-31(c). The statutes say that “It shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana”. The penalties an individual faces for possessing marijuana at the Atlanta airport depend on the quantity of marijuana and could range from a simple fine to up to 15 years in prison.

If you are caught with less than an ounce of marijuana, you will be charged with a misdemeanor and face a fine of up to $1000 and/or a year in jail. If you are caught with more than an ounce but less than 10 pounds of marijuana, you face a felony conviction and 1-10 years in prison.

However, for the higher amounts often intercepted at the airport, the penalties are severe. If you possess marijuana in excess of 10 pounds, you will be charged with trafficking marijuana and the penalties depend on the amount you possess:

  • If you are arrested with 10-2,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 5 years in prison and a $100,000 fine.
  • If you are arrested with 2,000-10,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 7 years in prison and a $250,000 fine.
  • If you are arrested with more than 10,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 15 years in prison and a $1 million fine.

As you can see, the penalties for trafficking marijuana at the Atlanta airport are steep. It is important that you hire a skilled criminal defense attorney to represent you if you are charged with this offense. The lawyers at W. Scott Smith are experienced at defending these types of crimes and will work tirelessly to discover defenses in your case and protect you from these severe punishments. Call our office today at 404-581-0999 for a free consultation.

Statutory Rape in Gwinnett County

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Statutory Rape in Gwinnett County is a serious crime in Georgia.

O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Gwinnett County can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape in Gwinnett County, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

If you are arrested in Gwinnett County for Statutory Rape, you will see a Gwinnett Magistrate judge the following day. At this initial court date, the Gwinnett Magistrate Judge will read the warrant to you and may consider bond. If bond is not given at first appearance, you will be reset to a preliminary hearing and bond hearing date in front of another Gwinnett County Magistrate judge.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in Gwinnett County for Statutory Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Sex Offenses. You must protect your rights and take this matter very seriously.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

How the Fourth Amendment Could Protect You in Drug Cases

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The Fourth Amendment provides safeguards for individuals during their interactions with law enforcement. If evidence is discovered during an interaction that violates an individual’s Fourth Amendment rights, that evidence cannot be used against the individual in court.

This issue commonly arises in cases where an individual is pulled over for a traffic violation and is subsequently charged with possessing drugs. For example, if an officer pulls you over for crossing the solid line, they are not allowed to search your car for drugs if you do not consent to the search. While there are certain exceptions in place to ensure officer safety and to prevent the destruction of evidence (such as patting down an individual on the outside of their clothing to search for weapons, for example), the officer cannot freely look through your pockets or inside your vehicle.

Understanding Fourth Amendment protections is complex, and it is important that you hire an experienced attorney if you are charged with a serious offense like possession of drugs, possession of drugs with intent to distribute, or trafficking drugs. The lawyers at W. Scott Smith, PC will work diligently to discover any Fourth Amendment violations in your case and to keep the harmful evidence out of court. If you are charged with one of these serious offenses in Clayton, Cobb, Dekalb, Fulton, Gwinnett, or Fayette Counties, call our office at 404-581-0999 today for a free consultation.