Mark Robert Starr was convicted by a jury of one count of child molestation. His motion for new trial, as amended, was denied, and he appeals. Starr argues that the victim’s videotaped statement and his own two audiotaped statements were improperly admitted, and he enumerates as error a portion of the trial court’s jury charge. Because we conclude that in its jury instructions the trial court improperly expressed an opinion on the evidence in violation of OCGA § 17-8-57, we reverse and remand this case for a new trial. Construed in favor of the verdict, evidence was presented that Starr, a friend of the victim’s father, was visiting in the victim’s home on the date of the incident. Near the end of his visit, he was alone with the four-year-old victim in her “toy room” and was playing a computer game with her. The victim reported to both parents and to Dawn Warren, a local children’s advocate, that Starr had touched her genital area. She told Warren that “it hurted sic when he was digging in it” with his hand. Warren’s videotaped interview with the victim was played for the jury.
1. Starr enumerates as error the following instruction, given during the final charge to the jury, which almost identically tracks the language of OCGA § 24-3-16: A statement made by a child under the age of fourteen years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify and the court finds that the circumstances of the statement provides sic sufficient indicia of reliability . Emphasis supplied. Starr contends that no objection was raised to the admission of the victim’s statement and consequently that no need arose for the trial court to explain its rationale for admitting it. He argues that “the trial court’s expression of its opinion that the child’s statement had ‘sufficient indicia of reliability’ was entirely gratuitous” and constituted an opinion as to what had been proved, in violation of OCGA § 17-8-57. We agree.
