Following a jury trial, David Gresham was convicted of child molestation and incest. He appeals, contending that the trial court erred in applying the Rape Shield statute1 to exclude defense evidence. We agree for the reasons set forth below and thus vacate in part and remand for a new trial. “On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and Gresham no longer enjoys a presumption of innocence.” Warren v. State .2 So viewed, the evidence shows that between May 2001 and 2002, the victim, eleven-year-old A. S., lived with her mother, two half-sisters, and her step-father, Gresham. During this time, Gresham, who worked as a long-haul trucker, occasionally took A. S. with him on his delivery routes. On several of these trips, he allegedly forced A. S. to watch an adult video and to engage in sexual intercourse. A. S. also testified that Gresham forced her to have sexual intercourse and oral sex on multiple occasions when she was alone with him either in his truck or in a loft apartment above the detached garage located behind their home. Two other witnesses testified that A. S. informed them that Gresham had sexually abused her. In addition, a nurse practitioner who examined A. S. testified that A. S.’s genitalia exhibited physical signs consistent with sexual abuse.
Gresham was indicted on counts of child molestation,3 aggravated child molestation,4 incest,5 and aggravated sodomy.6 Prior to trial, the State moved in limine to exclude two defense witnesses who intended to testify that A. S. was sexually active and, in fact, had a boyfriend, with whom she allegedly had sexual intercourse during the time of the alleged sexual abuse. The trial court granted the State’s motion, ruling that the Rape Shield statute, OCGA § 24-2-3, prohibited the defense from presenting any evidence concerning A. S.’s prior sexual history. At the February 2004 trial, Gresham again proffered the witnesses, and the trial court again excluded the witnesses’ testimony based on the Rape Shield statute. The jury found Gresham guilty of child molestation and incest but acquitted him of aggravated child molestation and aggravated sodomy. This appeal followed.
