dissenting.
I respectfully dissent. “The right to confront one’s accusers is a concept that dates back to Roman times.” Crawford v. Washington, 541 U. S. 36, 43 (II) (A) (124 SC 1354, 158 LE2d 177) (2004). And, “[t]he primary flaw of hearsay testimony is the lack of opportunity for the declarant to be cross-examined as to honesty, truthfulness, perception, and memory.” (Punctuation and footnote omitted.) Conley v. State, 257 Ga. App. 563, 564 (1) (571 SE2d 554) (2002). This case — involving a conviction predicated solely on the testimony of law enforcement with no ability by the accused to cross-examine any of *635his accusers — is a classic example of what the hearsay rules were developed to prevent. Cuyuch’s conviction, based on hearsay statements admitted through law enforcement officers, thus should be reversed.
The only evidence identifying Cuyuch as the person who cut the victim’s arm was through Francisco’s statements to the sergeant through a translator, and the victim’s out-of-court identification of Cuyuch to the officer at the victim’s house.10 Absent a hearsay exception such as res gestae, a law enforcement officer may not testify to a pre-trial identification of the accused unless the person who made the accusation also testifies. White v. State, 273 Ga. 787, 788 (546 SE2d 514) (2001).
1. Francisco’s Out-of-Court Identification. Contrary to the majority’s conclusion, Francisco’s identification of Cuyuch — admitted through the sergeant’s testimony about what the translator told the sergeant about what Francisco had told the translator — constituted impermissible hearsay. Pretermitting whether Francisco’s statement identifying Cuyuch as the victim’s attacker was otherwise part of the res gestae, Francisco did not tell how he came to the conclusion that Cuyuch cut the victim. Nor was Francisco encountered by the sergeant at the scene of the alleged attack. Thus, “there was no evidence to show that [Francisco] spoke from personal knowledge, or whether he was merely relaying information he had obtained from another person.” Orr v. State, 281 Ga. 112, 113 (2) (636 SE2d 505) (2006). See also Freeman v. Lambert, 168 Ga. App. 751, 752 (1) (309 SE2d 873) (1983) (res gestae exception does not dispense with requirement that declarant was witness to thing he declared). Indeed, the State itself virtually conceded in closing argument to the jury that there was no way of knowing whether Francisco had personal knowledge:
You heard that Francisco said that this is the man who did it. Now, how did Francisco know any of this? Well, we don’t know. There wasn’t any testimony of that.... Did Francisco see it? We don’t know. Did [Cuyuch] tell Francisco? We don’t know. . . .
Without evidence showing that Francisco spoke from personal knowledge, his statement is reduced to an inadmissible expression of opinion or conclusion. See Dolensek v. State, 274 Ga. 678, 679 (2) (558 *636SE2d 713) (2002). It follows that Francisco’s out-of-court statements were impermissible hearsay that could not be admitted to show that Cuyuch cut the victim. Id.
It is true, as the majority notes, that the trial court determined that Francisco’s statements fell within the res gestae and that a clearly erroneous standard of review applies in this context. See Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982). Nevertheless, a trial court’s determination that a declarant had personal knowledge of which he spoke cannot be predicated on mere guesswork or speculation. Rather, “with some degree of persuasive force, it must appear that [the declarant] was in reality a witness to the thing which he declared.” (Citation and punctuation omitted; emphasis supplied.) Freeman, 168 Ga. App. at 752 (1). Here, it was equally plausible that the victim or one of his other roommates told Francisco what had happened immediately after it occurred, and that Francisco then relayed this information to law enforcement. Given the skeletal record on this issue, as acknowledged by the State in closing argument — which included no information about Francisco’s relationship to the victim or Cuyuch, where he lived, what he was doing at the alleged crime scene, or who the other person was sitting on the couch besides Cuyuch, among other missing facts — neither this Court nor the trial court could determine whether Francisco had personal knowledge without resorting to speculation.11 See id.
2. The Victim’s Out-of-Court Identification. The officer’s testimony concerning the victim’s pre-trial identification of Cuyuch at his home likewise constituted inadmissible hearsay that did not fall within the res gestae. If the statements are made deliberately and after the declarant has had the time to reflect on the occurrence, the res gestae exception does not apply. See Peebles v. State, 236 Ga. 93, 95 (2) (222 SE2d 376) (1976). In the present case, the pre-trial identification made by the victim occurred after the victim received medical treatment, after the police officer told the victim that he was taking him to the alleged crime scene to identify the perpetrator, after the victim was then taken back to the alleged crime scene by the officer, and in response to a question by the officer. Specifically, the officer testified, “Right after the med unit arrived, I asked [the victim] if [it] was okay for me to go take him to his house to identify the *637person” who had hurt him. The officer then drove the victim to his house and, referring to Cuyuch who had been arrested and was sitting in a police car, asked the victim, “Is that him?” The victim responded to the officer’s question in the affirmative. Under these circumstances, particularly where the officer told the victim that he was being taken to the crime scene for the express purpose of identifying the perpetrator, the victim’s statement identifying Cuyuch was not “free from all suspicion of device or afterthought.” OCGA § 24-3-3. See, e.g., Wilbourne v. State, 214 Ga. App. 371, 372 (1) (448 SE2d 37) (1994) (although victim was upset and had been drinking, her statements to officer three-and-a-half hours after the assault were not undeniably free from suspicion or afterthought and were not part of the res gestae).12
Decided July 16, 2007 Carlton C. Carter, for appellant. Garry T. Moss, District Attorney, Samuel K. Barger, Assistant District Attorney, for appellee.“[E]rroneously-admitted hearsay may not be considered in reviewing the sufficiency of the evidence.” (Citations omitted.) Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997). This means that even where there was no objection to the hearsay testimony at trial, the “hearsay is without probative value to establish any fact.” (Citations omitted.) Collins v. State, 146 Ga. App. 857, 860 (1) (b) (247 SE2d 602) (1978). See also Green v. State, 277 Ga. App. 867 (627 SE2d 914) (2006). Excluding Francisco’s and the victim’s statements identifying Cuyuch, I believe that there was insufficient evidence for a rational trier of fact to find Cuyuch guilty of aggravated battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). I therefore dissent from the majority opinion in this case. I am authorized to state that Chief Judge Barnes joins in this dissent.
Although the victim identified his “roommate” as the person who cut him in his initial encounter with police, it was never established that Cuyuch was the victim’s only roommate. Furthermore, Cuyuch’s spontaneous, angry statements to the officer after his arrest were consistent with his guilt or innocence.
Francisco’s statement did not fall within any other exception to the hearsay rule, such as the necessity exception. That exception requires, among other things, that the declarant be unavailable and that reasonable efforts have been made to secure his or her presence at trial. See Grimes v. State, 280 Ga. 363, 366 (5) (628 SE2d 580) (2006); White, 273 Ga. at 791 (3). The State never demonstrated that it made reasonable efforts to secure Francisco’s presence at trial, and so the State failed to show that the necessity exception applied. See White, 273 Ga. at 791 (3).
As was true with Francisco, the State failed to show that it had made reasonable efforts to secure the victim’s presence at trial, and so the necessity exception did not apply.