dissenting.
I fully concur in Divisions 1 and 2 of the majority opinion. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) is clearly not decisional authority for the admission of the child witness’s statements, because her veracity was never placed in issue by affirmative charges of recent fabrication, improper influence or improper motive. Although OCGA § 24-3-16, as amended in 1995, is statutory authority for admission of the statements, the majority holds in Divisions 3 and 4 that that statute violates the equal protection clause. In my opinion, we have no jurisdiction to so hold because the only constitutional challenge which was ever raised and ruled on below was that OCGA § 24-3-16 violates the confrontation clause of the Sixth Amendment. As against this challenge, I believe that OCGA § 24-3-16, as amended, comports with the confrontation clause and, thus, that the trial court did not err in admitting the child witness’s statements pursuant to that statute. Accordingly, I respectfully dissent to the reversal of Woodard’s conviction.
Woodard’s unsuccessful constitutional challenge to OCGA § 24-3-16 was based entirely upon the Sixth Amendment right of confronta*325tion. Woodard did not raise, and the trial court did not rule upon, any equal protection challenge to this statute. Since the trial court upheld the statute against an attack based solely on confrontation grounds, this Court’s review must also be so limited. Reed v. State, 264 Ga. 466, fn. 2 (448 SE2d 189) (1994). See also Chanin v. Bibb County, 234 Ga. 282, 292 (5) (216 SE2d 250) (1975). Compare Sams v. Olah, 225 Ga. 497, 498 (1) (169 SE2d 790) (1969).
Decided March 2, 1998 Reconsideration dismissed April 2,1998. Thomason & Blackmon, Dennis T. Blackmon, for appellant. Peter J. Skandalakis, District Attorney, Anne C. Allen, Suzanne C. Wilson, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, David S. McLaughlin, Assistant Attorney General, for appellee. J. Tom Morgan, District Attorney, Stone Mountain Circuit, Robert M. Coker, Assistant District Attorney, amicus curiae.OCGA § 24-3-16 requires that the child victim or child witness be available to testify and that the circumstances of the statement provide sufficient indicia of reliability. Furthermore, the statute, as construed, does not require that a defendant call the child in order to exercise his right of confrontation. Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562) (1987). Because of these safeguards, this Court has repeatedly rejected confrontation clause challenges to the statute. Thornton v. State, 264 Ga. 563, 567 (2) (e) (449 SE2d 98) (1994); Allen v. State, 263 Ga. 60 (2) (428 SE2d 73) (1993). The 1995 amendment changed none of these safeguards, but only broadened the statute’s coverage to encompass the statements of certain child witnesses, in addition to those of child victims. Therefore, I believe that we must continue to uphold OCGA § 24-3-16 as against constitutional challenges based only on the federal constitutional right of confrontation.
Woodard’s equal protection challenge was not raised or ruled upon in the trial court, OCGA § 24-3-16 is not otherwise unconstitutional, and the trial court did not err in admitting the statements of the child witness. Thus, the judgment of conviction must be affirmed.
I am authorized to state that Justice Hunstein joins in this dissent.