Cuzzort v. State

Cuzzort was convicted in Dade Superior Court of the crime of aggravated sodomy committed against his 12-year-old daughter. His conviction was affirmed by the Court of Appeals. Cuzzort v. State, 173 Ga. App. 157 (325 SE2d 826) (1984). We granted certiorari to consider Division 2 of the opinion which upheld the admission into evidence of an out-of-court statement of the daughter over a hearsay objection. We affirm.

For a complete statement of the facts reference is made to the Court of Appeals’ opinion. For our purposes it is sufficient to recite that the mother testified during the trial that the child told her on an occasion near in time to the alleged offense that “. . . Clines was taking her to the bedroom of a night when I was at work.” The clear implication of this statement was that the alleged sodomy occurred on such an occasion. The child also took the stand during the trial and testified that her father committed the alleged acts. She was thoroughly cross-examined.

We view the case as follows: The question for the fact finder was whether the father committed aggravated sodomy against the daughter. The daughter testified in court under oath subject to cross-examination that he did. The mother testified in court under oath subject to cross-examination that the daughter, out of court not under oath nor subject to cross-examination, told her that he did. The admissibility of the daughter’s out-of-court statement is governed by our opinion in Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). That case dealt with a prior inconsistent statement made by an in-court witness and we held the prior inconsistent statement was not limited in value to impeachment but was substantive evidence of the matter asserted. Here there is no inconsistency between the testimony of the daughter at trial and her prior statement. Impeachment is not involved. Nonetheless the principle we laid down in Gibbons applies. The veracity of jthe daughter is in issue on the question whether her father sodomized Iher. In her out-of-court statement she said he did ánd at the trial she ¡testified he did. At trial she was under oath and subject to cross-ex-lamination about her testimony and about her out-of-court statement. ¡The concerns of the rule against hearsay are satisfied.

Judgment affirmed.

All the Justices concur, except Hill, C. J., and Bell, J., who concur specially, and Smith, J., who dissents.