Foss G. Hodges – Criminal Defense Notable Cases:
Sex Crimes

State v. John Doe (2023): Detective Closes Aggravated Child Molestation/Aggravated Sodomy Investigation of Client After Defense Counsel Proves Neighbor’s Allegations Were False.

Defense Counsel:

Charges: Law enforcement was investigating the client for allegations of Aggravated Child Molestation, Aggravated Sodomy, and Cruelty to Children against multiple children.

Prosecution's Case:

A former neighbor accused the client, a medical doctor, of molesting the neighbor's children and his own children, and forcing his own children to molest the neighbor’s children. If arrested, prosecuted, and convicted, the client was facing a mandatory minimum 25 years up to Life in prison.

Further, in a separate matter, the Georgia Composite Medical Board was investigating whether the client violated the Board’s laws or rules by allegedly sexually harassing two employees.

Defense and Outcome:

The client was married to his wife for 25 years. They had 3 children together, two of whom were transgender. Their former neighbor had 4 children around the same age as the client’s children. Two of them were close friends with the client’s children. The two families were friendly and would sometimes get together socially for swimming, bonfires, and other family activities. They lived next door to each other for 10 years until the neighbors moved away in 2018.

In 2022, the client was contacted by DFCS, the police, and directly by the former neighbor, alleging that the client molested the neighbor’s 4 children, molested his own children, and had his children molest the neighbor’s children.

The client adamantly denied all the allegations. Defense Counsel met with him and his wife to discuss the allegations and prepare a defense. The client and his wife provided the texts in which the former neighbor made his allegations, photos and correspondence showing the history of all the relationships, and the social, psychological, and medical records for their own children.

Defense Counsel contacted the client’s children’s therapists, who had been working with them for several years prior to this allegation for ADHD, transitioning gender, and other mental health issues. The therapists confirmed that in their hundreds of hours of working with the family, the children made no mention of any kind of sexual abuse. Further, the therapists confirmed that they had no suspicion that the client was abusing his children.

Counsel also arranged for the client to take a polygraph, which he passed. He also underwent a psychosexual evaluation, which showed no indication of deviant sexual behaviors or sexual interest in children.

Defense counsel’s investigator interviewed the client’s children and numerous friends and family members. The children denied being abused by their dad or participating in or observing any abuse of the neighbor’s children. Countless friends and family who spent time around the client and all the children involved said they never saw anything suspicious. Instead, they observed that the kids acted completely normally around the client and each other – that everyone’s conduct and behavior was completely inconsistent with the alleged abuse.

Finally, Defense Counsel agreed to allow one of the client’s children to be interviewed by a forensic interviewer, who reported no disclosure of abuse or anything suspicious.

Defense Counsel presented all of this to the detective investigating the case. After reviewing the extensive materials supporting the client’s innocence, the detective closed her investigation without making an arrest.

Counsel also supplied to the Medical Board investigator proof that the complainant who alleged sexual harassment at work made false statements in her complaint. Defense counsel interviewed employees in the practice who contradicted the complainant’s allegations and provided the practice’s own internal investigation report, which contradicted many of the complainant’s allegations to the Board’s investigator. After reviewing the materials provided by Defense Counsel, the Board voted to close its investigation.

Sexual Battery investigation dropped where Defense Attorneys prove touching was accidental incident of “sleep sex.” (2019)

Defense Counsel:

Charges: Sexual Battery

Prosecution's Case:

Defendant was under investigation for Sexual Battery for touching his adult cousin’s breasts while the two were sleeping in the same bed together at his one-bedroom apartment. The victim said she was traumatized, sought counseling, and called police.

Defense and Outcome:

Defense Counsel immediately intervened with police, asking for time to investigate the case and opportunity to be heard before they decided whether to make an arrest. The police agreed, and Counsel got to work.

Counsel learned that Defendant did, in fact, touch the victim’s breasts. However, he did so by accident while he was asleep. When he awoke and found himself touching her, he stopped immediately, apologized profusely, and said that what just happened was “disgusting.” The two parted without further incident. Over time, the victim became increasingly upset. She told Defendant she was seeing a “doctor” about it and needed some money. Defendant helped her for a while, but eventually refused. Soon thereafter, the victim went to police.

Counsel gathered information about Defendant, his family, and the victim’s background, and came to believe that the victim was romantically interested in Defendant and that her feelings were hurt when Defendant said his touching was an accident and was “disgusting.” Counsel also believed that the victim, who was financially unstable, used the incident to extort money from Defendant, and then got mad when he cut her off. By reviewing old court records and talking to family members, Counsel discovered that the victim and her mom might have been involved in prior false allegations of sexual abuse against the victim’s father.

Counsel had Defendant take a polygraph exam about his intent to touch the victim – he passed. Counsel also interviewed Defendant’s prior and current bed partners (his ex-wife, ex-girlfriend, and current girlfriend), each of whom described how Defendant often unknowingly, unintentionally touched them while he was asleep. Counsel had prior case experience with, and had accumulated a significant body of research about, involuntary sexual acts during sleep (a.k.a. “sleep sex,” or “Sexsomnia”). Counsel believed that’s what happened here.

Counsel presented all the foregoing to the police and the prosecutor, who ultimately declined to arrest or prosecute Defendant.

State v. John Doe (2015)

Defense Counsel:

Charges: Rape

Prosecution's Case:

Defendant was under investigation for raping a 31-year-old woman. The woman told police that she and Defendant were “just friends,” but that he wanted to be “more than friends.” The woman alleged that, after Defendant lured her to his apartment, Defendant pushed and held her down while he raped her vaginally and anally. The woman reported that she was bleeding between her legs during the incident; and police observed and photographed bruises on her arms, thighs, hips, buttocks, and back.

Defense and Outcome:

Defendant had consensual sex with the woman on the night in question. Defense counsel had him take a polygraph exam, which showed he was being truthful, and a psychosexual evaluation, which showed he had no psychological issues associated with committing rape. Through Defendant’s testimony and personal records, defense counsel showed that Defendant and the woman were more than friends, having an ongoing relationship involving dates, overnight trips, and consensual sex. Extensive interviews of witnesses who knew the woman revealed that her conduct and behavior after the alleged incident was inconsistent with being a victim. Witnesses also reported that the woman had a history of peculiar behavior and that they were not surprised she could invent a story of sexual abuse: she often had bruises; she claimed to be “saving herself for marriage,” but acted out sexually in strange ways; she was conflicted about her religious beliefs and her sexuality; she still lived at home with her “very religious” mother, who would have disapproved of pre-marital sex; she often told tall tales, liked being at the center of drama, often played the victim; and she may have made prior false allegations of rape and child molestation. Finally, by visiting Defendant’s apartment, defense counsel observed that a brutal rape could not have occurred there without being heard by the neighbors, and that there were no blood stains or other signs of trauma consistent with the allegations. Defense counsel presented this evidence to police, who subsequently agreed to close its investigation without obtaining an arrest warrant.

Sexual Battery case ends with Pre-Trial Diversion and dismissal (2017)

Defense Counsel:

Charges: Sexual Battery

Prosecution's Case:

Man was arrested for Sexual Battery for touching the breast of a woman he started a conversation with while out walking in his neighborhood.

Defense and Outcome:

Client was from India, visiting his son in Georgia. Client denied any improper intent towards the woman - he said it was a misunderstanding. Defense Attorney Hodges had the client take a psychosexual evaluation to show he didn't have problematic sexual interests, and enrolled him in counseling/education about sexual boundaries. The Solicitor agreed to Pre-Trial diversion, after which charges were dismissed and the client's record restricted.

Pre-Trial Diversion and dismissal of Indecent Exposure charge (2015)

Defense Counsel:

Charges: Indecent Exposure

Prosecution's Case:

Client arrested for Indecent Exposure when he allegedly propositioned an undercover officer in a park.

Defense and Outcome:

After Defense Attorney Hodges had client obtain psychosexual evaluation and treatment, solicitor agreed to let client enter Pre-Trial Diversion. Client got credit for treatment he'd already done, the case was dismissed, and the client's record was restricted.

Sexual Assault charges dismissed for teacher accused of having sex with student; plea to non-sexual offense keeps client out of prison and off the Sex Offender Registry (2019)

Defense Counsel:

Charges: Sexual Assault

Prosecution's Case:

Client was a high school teacher, accused of having a sexual relationship with an 18-year-old male student. Client resigned from her job, surrendered her teaching certificate, and was arrested and indicted for Sexual Assault. She faced up to 25 years in prison and a lifetime on the Sex Offender Registry.

Defense and Outcome:

Through exhaustive legal research and personal interviews with educators, Defense Counsel developed an argument that Client’s alleged conduct was not a crime. Sexual Assault required proof that the accused teacher had supervisory or disciplinary authority over the victim student. Here, Client had no authority over the alleged victim, because he was not one of her students, and because, as educator witnesses asserted, teachers have virtually no authority over students outside their own classes. Defense Counsel prepared to file a motion to dismiss the Indictment on this issue, and prepared to take the fight to the Court of Appeals if necessary.

In the meantime, Defense Counsel obtained extensive background information about Client and her family. Everything showed that Client had impeccable character and was well loved and respected in her community. She and her family obtained nearly 50 character letters that spoke the truth about who she was, and why these allegations were not consistent with that.

Defense Counsel had Client get a psychological evaluation and psychosexual risk assessment, which proved she had no significant psychiatric or behavioral problems and no problematic sexual interests. Defense counsel also had Client enroll in counseling and treatment that focused on boundaries and judgments.

Defense Counsel presented all the foregoing to the prosecutor, who ultimately agreed to dismiss the Sexual Assault Indictment, re-charge Client with a non-sexual offense, and consent to First Offender, with no Sex Offender Registry and no prison. Client was sentenced to 90 days in the local jail, followed by probation. As a First Offender, Client does not stand convicted of a crime – upon completing her sentence, Client’s case will be discharged, and there will be no conviction on her record.

Sexual Battery case resolved with First Offender probation for government employee (2018)

Defense Counsel:

Charges: Sexual Battery

Prosecution's Case:

Defendant worked for a government agency in Georgia. He was accused of Sexual Battery for slapping the buttocks of a female co-worker. The victim complained to her employer, who took disciplinary action against Defendant. Not satisfied, the victim contacted police. Defendant was arrested.

Defense and Outcome:

Defendant admitted to swatting at the co-worker in frustration, admitted that it was inappropriate and foolish, but denied any sexual intent. Unfortunately, Sexual Battery does not require sexual intent – it only requires unwanted touching of an “intimate” body part. The State was seeking jail time and Defendant’s job was at risk if the case ended in a conviction.

Defense counsel thoroughly investigated the case by interviewing witnesses, gathering records, exploring the victim’s background, and investigating the agency’s internal response to the incident. Counsel also set out to gather evidence of Defendant’s good character, exemplary work history, spotless record, low risk to re-offend, and sincere remorse for what happened. Counsel had Defendant produce an extensive list of character witnesses, as well as narratives, photos and other artifacts about his family, work, and community life, all showing he was a good person who had never hurt anyone. Counsel also had Defendant take a psychosexual evaluation, which showed Defendant had no hostility towards women, no interest in deviant sexual behavior, and was very low risk to re-offend. Finally, Counsel had Defendant take an anger management evaluation and attend training on anger management and sexual harassment.

Defendant agreed to plead guilty. However, despite all the mitigating evidence in the case, the State continued to insist on jail time. Counsel argued to the Court that jail was inappropriate, and the Court agreed, sentencing Defendant to probation under the First Offender Act. Once Defendant successfully completes probation, his case will be discharged and there will be no conviction on his record. Defendant was fully restored to his job, where he continues to be a highly regarded and valued employee.

State v. John Doe (2018)

Defense Counsel:

Charges: Rape

Prosecution's Case:

Defendant was arrested for Rape while visiting friends at an out-of-state college. After a fraternity party, the alleged victim invited Defendant up to her dorm room, where the couple began making out. The alleged victim repeatedly told Defendant, “I am not going to have sex with you.” However, they continued making out and eventually had intercourse. Afterwards, the alleged victim called her friends for help. She showed them bruises on her neck, ears, and lips, and explained that Defendant had bitten her and sucked on her skin as he aggressively had sex with her. The friends called campus police and reported that the alleged victim had been raped. After a physical exam, the medical examiner concluded that the biting and sucking injuries, as well as injuries inside and outside the alleged victim’s vagina, were consistent with forceful, nonconsensual sex. Police located and questioned Defendant, who admitted to having sexual intercourse with the alleged victim, and admitted to drinking alcohol and taking LSD earlier that day. Defendant was arrested and charged with Rape. He faced up to 10 years in prison and a lifetime on the Sex Offender Registry.

Defense and Outcome:

Defense counsel immediately reached out to the prosecutor to obtain discovery and ask for her commitment not to seek an indictment without first allowing Defense counsel to investigate the case and present their findings to her.

In the State’s discovery, Defense counsel found extensive video surveillance footage showing Defendant and the alleged victim together around campus. They were affectionate with each other, but not at all “creepy” or “groping” or “stalking” towards each other. It did not appear that either of them was intoxicated.

The discovery also contained Defendant’s statement to police and several statements by the alleged victim. Ironically, Defendant and the alleged victim described the facts almost identically. Defendant acknowledged that the alleged victim repeatedly told him, “I am not going to have sex with you.” However, both acknowledged that they continued doing “other things,” including performing and receiving oral sex on and from each other, and that they eventually had sex. The alleged victim admitted that she never said “stop,” “no,” “don’t.” She denied being intoxicated and denied that Defendant seemed intoxicated. She did not claim that Defendant threatened her or used force to restrain her. She said she wanted it to stop, but felt like she couldn’t make it stop. Defendant admitted to being persistent with her, but denied forcing himself on her or coercing her in any any way. After sex, they showered together, exchanged phone numbers, and talked about seeing each other later that night. As soon as Defendant left, the alleged victim called her fiends for help.

In reviewing police interviews with several of the alleged victim’s friends, Defense counsel learned that the alleged victim never reported this as a rape. The friends confirmed that she told them she was uncomfortable about what happened, that “one thing led to another,” that she was confused, not sure how to explain what happened. She said she felt like it was her fault, because she had not told Defendant to stop. However, the alleged victim’s friends immediately “knew” she had been raped – they tried to convince her of that, and called her parents and campus police. Police also immediately “knew” a rape had occurred, and proceeded to treat the case that way.

After studying the discovery, Defense counsel and their investigators took Defendant back to the campus to observe and photograph all the relevant locations, learning additional, critical details about the way the two interacted during and after sex, which further indicated a consensual encounter.

Defense counsel then put everything in the hands of experts to try to obtain additional support for Defendant’s innocence. First, Defendant took a polygraph exam (which he passed) and a psychosexual evaluation (which showed he was not a predator, not violent towards women, not considered a risk to commit sexual offenses). To address the presence of alcohol and drugs in the case, Defense counsel consulted an expert Pharmacologist, who reviewed all the video surveillance, witness statements, and other case materials, concluding that everything was consistent with Defendant and the alleged victim being completely sober when they had sex. A Sexual Assault Nurse Examiner (“SANE”) and a Forensic Pathologist reviewed the sexual assault exam, and both agree that the injuries were consistent with consensual sex – not with forceful sex, as the State contended. Within days of the incident, Defense counsel had Defendant examined and photographed by a Forensic Pathologist, who found no evidence of injuries to him, suggesting there was no struggle of any kind. Finally, to understand how the alleged victim could have come to believe she was raped when in fact she wasn’t, Defense counsel turned to an expert in improper influence and interviewing techniques. The expert explained that, although adults are not normally as suggestable as children, adults certainly can be influenced to believe or endorse inaccurate, false versions of events. In her opinion, that’s what happened in this case: the alleged victim never reported this episode as a rape, but was led to believe or endorse it as such by friends, family, and police who jumped to conclusions and insisted she was a victim.

Defense Counsel presented its case to the prosecutor prior to indictment. Subsequently, the prosecutor dismissed the felony Rape charge and indicted the case for a non-sexual, non-violent misdemeanor offense. Defendant pleaded to the lesser charge under the Youthful Offender Act and was sentenced to 12 months probation. He is not required to register as a sex offender; and five years after he completes his sentence, his record will be expunged completely.