Blevins v. State

• Decision Date: 30 October 2017
• Docket Number: A17A0639
• Citation: 808 S.E.2d 740,343 Ga.App. 539
• Parties: BLEVINS v. The STATE.
• Court: Georgia Court of Appeals

343 Ga.App. 539

808 S.E.2d 740

BLEVINS

v.The STATE.

A17A0639

Court of Appeals of Georgia.

October 30, 2017

Christopher A. Townley, Rossville, for appellant.

Herbert E. Franklin, District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

Ray, Presiding Judge.

A jury convicted Thomas Harold Blevins of enticing a child for indecent purposes ( OCGA § 16-6-5 (a) ) and four counts of child molestation ( OCGA § 16-6-4 (a) ).¹ Blevins appeals from the denial of his motion for new trial, contending in related enumerations that the trial court erred in admitting "other acts" evidence of his interactions with several other girls under OCGA § 24-4-404 (b), and also erred in admitting the testimony of another teenaged witness under OCGA §§ 24-4-413 and 24-4-414. Blevins also argues that the trial court erred in allowing the prosecutor to make inappropriate remarks during closing argument, and in denying his motion in arrest of judgment. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to uphold the guilty verdict,² the evidence shows that Blevins was the band director at Lakeview Middle School in Catoosa County, and also assisted with the marching band at Lakeview-Fort Oglethorpe High School. The victim in the instant case, B. P., had been one of Blevins' middle school band students. Blevins began communicating with her via text messages, which first were innocuous but then became "more intense[,]" telling B. P. that she was "beautiful" and asking her to meet him in the band room. He asked her to send him naked photographs of herself, which she did. He also texted her about a book titled "Crazy," which contained a sex scene. B. P. testified that Blevins specifically referenced a yellow condom, telling her "that's what me and him should do." Even though she told him that "it wasn't for me[,]" he "didn't stop."

The texting about the book took place in December 2010 when B. P. was 14 years old. That same month, shortly before Christmas, B. P. went to the school band room at Blevins' request to help fix the bass clarinets. He had texted her that "other members of the high school band would be there," but when she arrived, they were not. Instead, Blevins told her to go to the storage room "whenever you're ready," and he placed a music stand against the band room door, telling her that if someone came in, "I want to be able to hear them[.]"

Once B. P. and Blevins were in the storage room, Blevins grabbed B. P.'s arm, started rubbing the tops of her thighs, and kissing her. She was unable to get away, though she tried. Blevins sat B. P. on his lap, facing him, took off her shirt, and rubbed her breasts and between her legs over her underwear. He next turned off the lights and took B. P. behind a rack of chairs, where blankets and pillows were laid on the floor. He removed all her clothes, lay on top of her, and touched her vaginal area with his fingers. He unzipped his pants and made her perform oral sex. Later, his penis touched her vagina. Although B. P. kept saying "no," Blevins laughed and said, "that's okay, I got what I wanted." He then left B. P. in the storage room, where she sat in shock before putting her clothes on and going to the gym bathroom to "wash[ ] myself from head to toe." Soon after, Blevins texted: "thanks for the early Christmas present."

B. P. did not tell her mother what happened, as Blevins had warned B. P. that telling anyone else would "ruin" both "his job and his life[.]" Later, in 2011, Blevins texted: "we will wait until you're 18 so I won't get in trouble[.]"

Almost two years after the storage room incident, B. P. confided in a friend, who told the school's guidance counselor. Subsequently, B. P. agreed with investigators to participate in a recorded phone call with Blevins. On the call, which was played for the jury, B. P. asked Blevins what she should tell her mother, who was getting suspicious. Blevins told her, "For my sake and your sake, just say ... nothing ever happened. Mr. Blevins is a good man." He said he had some problems with texts to students that were "not academic" but "not any kind of dirty texts" because if that were the case, he would be in "jail." He asked her to "have my back[.]"

At trial, the State also entered into evidence Blevins' cellular telephone records for a four-year period ending December 11, 2012. A Georgia Bureau of Investigation ("GBI") analysis showed that Blevins' phone was in the area of Lakeview Middle School on the date B. P. was molested. The analysis also showed that he had communicated with B. P. 5,231 times during the four-year period. It also showed that during this period Blevins had communicated with other current or former female band students. Specifically, he had communicated with E. K. 1,996 times and with H. C. 962 times. The State called these girls as "other acts" witnesses.

Blevins was convicted, as outlined above, of enticing a child for indecent purposes and of child molestation. OCGA § 16-6-5 (a) provides: "A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts." OCGA § 16-6-4 (a) (1) provides: "A person commits the offense of child molestation when such person: ... Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]" Blevins does not contest the sufficiency of the evidence.

1. Blevins argues that the trial court erred in admitting, pursuant to OCGA §§ 24-4-413 and 24-4-414, evidence of his sexual behavior toward E. K., arguing that the trial court failed to consider whether the probative value of her testimony was outweighed by the prejudicial effect. We find no error.

We review this contention of error for abuse of discretion. Steele v. State, 337 Ga. App. 562, 565-566 (3), 788 S.E.2d 145 (2016).³ OCGA § 24-4-414 (a) provides that: "In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused's commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant." (emphasis supplied).

When E. K. was 15 years old, Blevins told her during private music lessons that "if [she] messed up he was going to touch [her] breast or kiss [her] neck." E. K. testified that Blevins made contact with her breasts and upper thigh multiple times. During one lesson at the high school, Blevins pulled down E. K.'s pants.

"The child molestation statute OCGA § 16–6–4 (a) requires only that the defendant have acted with the intent to arouse his sexual desires. And the question of intent is peculiarly a question of fact for determination by the jury." (Citation and punctuation omitted.) Dority v. State, 335 Ga. App. 83, 95 (3), 780 S.E.2d 129 (2015). A jury could determine that Blevins acted with E. K. with the intent to arouse his sexual desires, especially given that while driving her home from a music lesson, he said he was taking her to his house to "make whoopee[,]" a clear reference to his desire for sex with an underage girl. Id. (defendant asking victim if she felt as if he would molest her admissible under OCGA § 24-4-414 ).

To the extent that Blevins attempts to argue that the trial court erred in admitting the evidence under OCGA § 24-4-404 (b), OCGA §§ 24-4-413 and 24-4-414 control, as they are the more specific statutes regarding admission of prior acts of child molestation. Dority, supra at 95 (3), 780 S.E.2d 129. As such, OCGA § 24-4-413"create[s] a ‘rule of inclusion,’ with a strong presumption in favor of admissibility[.]" Steele, supra at 566 (3), 788 S.E.2d 145. See also United States v. Brimm, 608 Fed.Appx. 795, 798 (I) (C) (11th Cir. 2015) (finding that Federal Rules 413 and 414 permit the introduction of propensity evidence in sexual assault and child molestation cases, providing exceptions to Rule 404 (b)'s general ban on propensity evidence).

Finally, pretermitting whether the OCGA § 24-4-403 balancing test applies in the context of OCGA §§ 24-4-413 and 24-4-414, see Robinson v. State, 342 Ga. App. 624, 636 (4) (b), n. 9, 805 S.E.2d 103 (2017), the trial court specifically referenced OCGA § 24-4-403 and, thus, implicitly found the evidence admissible pursuant to the test. See Entwisle v. State, 340 Ga. App. 122, 131 (2), 796 S.E.2d 743 (2017) (where trial court did not make specific findings as to whether probative value outweighed prejudice, it explicitly referenced OCGA § 24-4-403, thus finding admissibility pursuant to the test).

2. Blevins next argues that the trial court erred by admitting evidence of prior bad acts pursuant to OCGA § 24-4-404 (b) involving "other acts" witnesses. As to all these witnesses, Blevins argues that the evidence did not show the same motive or intent as the charged crimes, and that the evidence had greater prejudicial impact than probative value. We disagree.

We will overturn a trial court's admission of other acts evidence only where there has been a clear abuse of discretion. Steele, supra. In determining whether extrinsic evidence is admissible, we look first to the language of OCGA § 24-4-404 (b) which provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent,^{[4 ]} preparation, plan, knowledge, identity, or absence of mistake or accident....⁵

Further, the State must show that (1) the other acts evidence is relevant to an issue other than the defendant's bad character; (2) its probative value is not substantially outweighed by its unfair prejudice; and (3) proof is sufficient to authorize the jury to find...