Arbegast v. State, A15A0212.

• Decision Date: 03 June 2015
• Docket Number: No. A15A0212.,A15A0212.
• Citation: 773 S.E.2d 283,332 Ga.App. 414
• Parties: ARBEGAST v. The STATE.
• Court: Georgia Court of Appeals

332 Ga.App. 414

773 S.E.2d 283

ARBEGAST

v.The STATE.

No. A15A0212.

Court of Appeals of Georgia.

June 3, 2015.

Mark Hong Chol Yun, for Appellant.

Emily Kathleen Richardson, Asst. Dist. Atty., Brian Keith Fortner, Dist. Atty., for Appellee.

Opinion

McFADDEN, Judge.

After a jury trial, Steven Jesse Arbegast was convicted of two counts of child molestation. He appeals, arguing that the trial court erred in admitting similar transaction evidence, but we find that he has not shown that the trial court abused his discretion in admitting the evidence. Arbegast argues that the trial court erred by failing to give an additional instruction to the jury on the limited purpose of such evidence, but he did not ask for an additional instruction. Arbegast argues that the trial court erred by denying his request for a continuance due to the state's failure to disclose the contact information for one of the similar transaction victims, but he was given the remedy to which he was entitled, the opportunity to interview the witness before she testified. Arbegast argues that the trial court erred by denying his motion for funds to hire an expert witness, but he did not make the required showing. Arbegast argues that the introduction of child hearsay violated his constitutional confrontation rights, but he did not object on this ground at trial and he chose not to have the declarants testify. Arbegast raises eight claims of ineffective assistance of counsel, but he has not shown both deficient performance by trial counsel and actual prejudice. We therefore affirm Arbegast's convictions.

1. Facts.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Morris v. State, 322 Ga.App. 682(1), 746 S.E.2d 162 (2013) (citation omitted).

Viewed in this light, the evidence shows that Arbegast was convicted of molesting two victims, K.Q., who was ten years old, and her sister, K.B., who was nine years old. Arbegast was formerly married to their stepfather's sister. In August 2003, Arbegast called the victims' mother to ask if the victims and their younger sister could go to a movie with him and his seven-year-old son. Arbegast's car was too small to fit them all and the mother was ill and could not drive them, so the victims' grandmother dropped them off and their mother's friend agreed to pick them up.

The mother accompanied her friend to pick up the girls, who were waiting outside the mall with Arbegast and his son. When she got in the car, K.Q. began crying. Her mother asked her what was wrong and she blurted out, “Uncle Steve touched me.” K.B. said that he had touched her, too. They arrived home, and the mother told her husband. They separated the girls and called the police. At the police station, a detective spoke with K.Q. and K.B. separately, and the interviews were recorded. The video recording was played for the jury.

The recording shows that K.Q. told the detective that while they were at the movies, Arbegast “touched [her] in areas [she did not] like.” He first hugged her, then touched her “in the middle and the top” under her pants with his hand. She tried to slide away from him on her movie seat, but he pulled her back and then put his hand under her shirt, touching her chest. After the movie, Arbegast took the children to a video arcade, where he asked K.Q., “Are we cool?” As they were leaving the mall, Arbegast said, “Don't tell anybody.”

K.B. told the detective that Arbegast put his finger in her “pee pee.” She explained that she had been sitting on his leg, bouncing, when “he took his hand and put it in [her],” under her panties.

We conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Arbegast was guilty of the crimes of which he was convicted. Jackson, supra, 443 U.S. at 319(III)(B), 99 S.Ct. 2781.

2. Similar transaction evidence.

(a) Admissibility.

Arbegast argues that the trial court erred in admitting two similar transactions. He argues that both were too remote in time from the instant crimes to be admissible; that his young age at the time of the first similar transaction rendered it inadmissible; and that the evidence was insufficient to prove that he committed the second similar transaction. (“Because this case was tried prior to January 1, 2013, Georgia's old Evidence Code applies here.” Bragg v. State, 295 Ga. 676, 677(2) n. 3, 763 S.E.2d 476 (2014).) Arbegast has not shown that the trial court abused his discretion in admitting the similar transaction evidence.

At trial, the mother of the victim of the first similar transaction testified that in 1988, when her son was five years old, his father noticed sores on the boy's penis. A pediatrician diagnosed the boy with herpes and referred him to a specialist at a local hospital, who determined that he had been sexually assaulted. The state played a video recording of the victim, made in October 1991 when the victim was eight years old, describing the sodomy and identifying Arbegast as the perpetrator. He testified that “Steve” told him not to tell anyone. The mother testified at Arbegast's trial that she decided not to press charges because her son was terrified of Arbegast, who would have had the right to confront the boy at trial.

The victim of the second similar transaction testified that in 1992, when she was 17 years old, she worked as a cashier at a grocery store. On June 5, 1992, when their shifts ended, she and a co-worker, another 17–year–old girl, went to the friend's house to watch a movie. Arbegast, who supervised the girls at work and was 21 years old, showed up uninvited. At one point, the victim went to the bathroom and closed, but did not lock, the door. As she was pulling up her shorts, Arbegast walked into the bathroom and locked the door. He pushed the victim against the wall, put his hand over her mouth, fondled her breasts, and inserted his finger into her vagina. The friend began knocking on the door, and Arbegast ran from the bathroom and left the house. The victim called her mother, and her mother or her friend called the police, to whom the victim gave a statement.

The trial court held that the similar transactions were admissible to show Arbegast's course of conduct and bent of mind.¹

(i) Remoteness.

Arbegast argues that the similar transactions were too remote in time from the instant crimes to be admitted. The instant crimes occurred in August 2003. The first similar transaction occurred no later than 1988, a lapse of 15 years, and the second similar transaction occurred in 1992, a lapse of 11 years.

Before admitting similar transaction evidence,

the trial court must determine that the [s]tate has affirmatively shown that: (1) the [s]tate seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

Pareja v. State, 286 Ga. 117, 119, 686 S.E.2d 232 (2009) (citations omitted). We review the trial court's decision to admit similar transaction evidence for an abuse of discretion. Id. at 121, 686 S.E.2d 232.

Generally, the lapse of time between a similar transaction and the crime being tried goes to the weight and credibility of the evidence, not to its admissibility. Pareja, 286 Ga. at 119, 686 S.E.2d 232. But, as Arbegast correctly asserts, when similar transactions that did not result in convictions “are particularly remote because they were committed decades in the past, ” id. (emphasis supplied), the trial court also must consider whether “the prejudice to the defendant caused by defending against alleged crimes occurring in the far distant past outweigh[s] any probative value the alleged crimes may have in a prosecution for a current crime.” Id. at 121, 686 S.E.2d 232 (emphasis supplied). However, “[p]articularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed.” Lakes v. State, 314 Ga.App. 10, 12(1), 722 S.E.2d 859 (2012) (citation and punctuation omitted). This is so “because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person's consent.” Pareja, 286 Ga. at 121, 686 S.E.2d 232 (citation omitted). And “we must be mindful that [the] decision [to admit similar transaction evidence] should be upheld unless it is an abuse of discretion.” Id. (citation omitted).

Assuming without deciding that 11–year–old and 15–year–old similar transactions are “particularly remote” so as to require attention to additional considerations for admissibility, rather than weight and credibility, we find that the trial court did not abuse his discretion in admitting the evidence. Both similar transactions and the instant crimes involved Arbegast committing sexual acts against children. In the first similar transaction and the instant crimes, Arbegast's victims were young children. In the second similar transaction and the instant crimes, Arbegast, who was in a position of authority over the victims, reached his hand under the victims' clothing and touched their breasts and vaginas.

Under [the] guiding principles[ and] considerations discussed above, we find that, based on the record in this case, the trial court did not abuse [his] discretion in [his] determination that the allegation[s] of child abuse that occurred [11 and 15] years in the past, due to [their] similarity to the present crime and [their] probative value to show [A

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