Defendant was charged in an indictment with one count of aggravated child molestation, two counts of incest, and four counts of child molestation, for acts committed against his two minor daughters, Y. R. and A. P., and also a minor niece, M. L. The jury acquitted him of aggravated child molestation and one count of child molestation, but found him guilty of two counts of incest and three counts of child molestation. Two of those three counts of child molestation were merged with the two counts of incest. Defendant filed this direct appeal from the judgment and sentence. Held:
1. Defendant first enumerates the refusal of the trial court to give the following written request to charge: "The fact that one or more of the witnesses in this case is a child should not . . . bring any more weight or credit to her or their testimony In other words, the fact that a witness is a child does not make her or their testimony any more truthful than that of the defendant or anyone else testifying in this matter."
"Notwithstanding the provisions of subsection (a) of [OCGA 24-9-5
], . . . in criminal cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be Competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter[, OCGA 24-9-80
]." OCGA 24-9-5
(b). Pursuant to OCGA 24-9-80
, the credibility of any witness is a matter to be determined by the jury under proper instructions from the court. Whether the circumstance that a witness is a child makes that child's testimony more truthful than that of the defendant is strictly a matter of credibility for the jury to determine, taking into consideration all other appropriate factors. See McIlwain v. State, 264 Ga. 382
, 383 (3) (445 SE2d 261
) and Fraser v. State, 143 Ga. 322 (5) (85 SE 124)
. In our view, defendant's request is not an accurate statement of the law and is argumentative, in that it erroneously charges that the credibility of each witness is the same in the eyes of the law. The correct proposition is that the rules for determining the credibility or believability of all the witnesses are the same. See Thomas v. State, 217 Ga. App. 720 (1)
, 721 (458 SE2d 897
). The trial court did not err in refusing to give this instruction.
J. Tom Morgan, District Attorney, Lee A. Mangone, Barbara B. Conroy, Assistant District Attorneys, for appellee.