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Peck v. State

The state failed to prove venue for the charges crimes.

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Jerry Peck appeals from his conviction for sexual exploitation of a child and distributing obscene material. He contends that insufficient evidence supports his convictions because the State failed to prove venue. He also asserts that the trial court erred by admitting evidence of prior difficulties between himself and the victim, permitting the victim to testify in violation of the privilege against spousal testimony, and denying his motion for a mistrial after allowing improper impeachment evidence. Because the State failed to prove venue, we must reverse this case for a new trial. 1. The State charged Peck with sexual exploitation of children by knowingly possessing and controlling photographs that depicted a 17-year-old minor exposing her breasts and touching a penis. The State also charged Peck with distributing obscene material by giving and disseminating the same photos to the drug store that developed them. The only evidence of venue presented in this case is the name of the road where the drug store was located and an investigating police officer’s testimony that he worked for the Gainesville Police Department. This evidence fails to establish venue in Hall County. Quezada-Barrera v. State , 295 Ga. App. 747 673 SE2d 126 2009. While we must therefore reverse Peck’s convictions, “we note that if a criminal conviction is reversed because of an evidentiary insufficiency concerning the procedural propriety of laying venue within a particular forum, and not because of an evidentiary insufficiency concerning the accused’s guilt, retrial is not barred by the Double Jeopardy Clause.” Citation and punctuation omitted. McKinney v. State , 294 Ga. App. 366, 370 4 670 SE2d 147 2008.

Because some of the evidentiary issues raised in this appeal may arise in another trial, we will address them.

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