Darden v. State , 206 Ga. App. 400 ( 1992 )

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2 and 3. I concur in Division 1 on the basis of Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). As to whether hearsay evidence concerning the statements of a person who is age 14 or over at the time of trial is admissible under OCGA § 24-3-16,1 am not prepared to say. As pointed out by the majority, Vargas v. State, 184 Ga. App. 650 (2) (362 SE2d 461) (1987), is not precedential in this regard. Moreover, the case it cites, as being in accord with a ruling that it is applicable in such circumstances, does not address the issue. Williams v. State, 180 Ga. App. 562 (1) (349 SE2d 797) (1986), merely quotes the statute and points out that it will cover other cases, tried after its effective date. The victims in Williams were 13 at the time they made the statements but their age at the time of trial is not shown.

Whether the Legislature’s purpose of protecting young children from the trauma of trial was intended by it to reach witnesses age 14 or over has not been settled and need not be reached in this case. The question is whether the reference to “the child,” in the context of “if the child is available to testify in the proceedings,” means the child who is still under the age of 14; or any person, regardless of age, who at the time of the statement was under the age of 14 years; or any person who is still legally a child at the time of trial but is 14 years of age or older.