Dean v. State

• Decision Date: 07 May 2013
• Docket Number: No. A13A0195.,A13A0195.
• Parties: DEAN v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 731

742 S.E.2d 758

DEAN

v.The STATE.

No. A13A0195.

Court of Appeals of Georgia.

May 7, 2013.

James Pete Theodocion, Augusta, for Appellant.

Madonna Marie Little, Asst. Dist. Atty., Rebecca Ashley Wright, Dist. Atty., for Appellee.

BOGGS, Judge.

Anthony Scott Dean appeals from his conviction for two counts of child molestation. He contends that the trial court erred by allowing the introduction of similar transaction evidence and by denying his request to impeach the victim with a specific prior bad act. For the reasons explained below, we affirm.

1. Dean contends that the trial court erred by admitting evidence of similar transactions. Under Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991), the State must show that (1) it “seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility”; (2) “there is sufficient evidence to establish that the accused committed the independent offense or act”; and (3) “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citation, punctuation and footnotes omitted.) Id. at 642(2)(b), 409 S.E.2d 649. “When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citations, punctuation and footnote omitted.) Ware v. State, 297 Ga.App. 400, 402(2), 677 S.E.2d 423 (2009). And

[w]hen reviewing the trial court's factual findings regarding whether the [S]tate satisfied the three-prong test mandated by Williams, we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court's discretion and will not be disturbed absent an abuse of that discretion.

(Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 14(3), 727 S.E.2d 112 (2012).

In this case, the record shows that the victim and her four siblings were adopted from Guatemala by Dean and his wife when the victim was 13 years old. The victim testified that when she was fifteen years old, Dean came into her room one night when she and her younger sisters were sleeping, lay down beside her, and touched her between her legs and on her genitalia. According to the victim, this only happened one time. On another occasion, Dean came into the bathroom adjacent to the victim's closet wearing nothing but a towel. The victim was in her closet and could see Dean's penis because the towel was open, and he told her that he wanted to have sex with her.

Over Dean's objection, the State presented evidence of similar transactions involving the victim's older sister. A woman who attended church with the Deans testified that she was fluent in Spanish and spent time with the victim and her sisters after their adoption. She testified that in a visit with the girls at her home, the victim's older sister told her that Dean was touching her inappropriately during the night. The victim testified that Dean treated her older sister “[l]ike she was his girlfriend or his wife.” She saw Dean kiss her sister on the mouth like a husband would kiss his wife, not as a father would kiss his daughter. The victim's younger sister testified that the victim's older sister would sometimes sleep with her in her bed instead of her own room. She saw Dean come into the room late at night after everyone else was asleep and get into the bed beside her older sister and kiss her on the mouth like a husband kisses his wife.

The older sister testified and denied any inappropriate conduct by Dean. She claimed that she told a sheriff in a telephone call that Dean “tried” to have sex with her only because she was tired of receiving repeated phone calls from authorities and wanted to be left alone. Dean also denied all allegations of molestation against him.

Over Dean's objection, the State presented evidence of similar transactions involving 12–year–old twins that occurred in June 1984 when Dean was 14 years old. During an overnight birthday party at their home, one of the twins awoke late at night to find her hands behind her back and Dean manipulating her hands to massage his genitals. When she confronted Dean, he snapped his underpants back up and told her he must have fallen off the couch in his sleep. The other twin sister testified that she awoke the same night to find Dean beside her with his hands on her breasts. He took her hand and rubbed it around on his penis until she felt a liquid land on her. The sisters denied consenting to Dean's conduct that evening. The twins' brother later told their father what Dean had done, and their father had a discussion with Dean's parents. The State presented no documentary evidence of Dean's conduct that evening.

(a) Dean claims that the trial court erred by allowing evidence of the similar transaction involving the victim's older sister. He asserts that it should not have been admitted because the State presented insufficient evidence that he committed the alleged acts because both he and the older sister denied the alleged conduct at trial. We find no merit in this assertion.

“Absolute proof is not required that a defendant committed the offense in a similar transaction.” (Citations and punctuation omitted.) Gunter v. State, 215 Ga.App. 517, 518(1), 451 S.E.2d 108 (1994). Instead, the State is required to prove that Dean committed the prior act by a preponderance of the evidence. Freeman v. State, 268 Ga. 185, 187–188(4), 486 S.E.2d 348 (1997); Jennings v. State, 277 Ga.App. 159, 162(3), 626 S.E.2d 155 (2006). A conviction for the prior act is not required, and it may be proven by circumstantial evidence. Lloyd v. State, 259 Ga.App. 636, 640(2), n. 12, 577 S.E.2d 854 (2003) (conviction not required); Druitt v. State, 225 Ga.App. 150, 151(1), (2), 483 S.E.2d 117 (1997) (circumstantial evidence will suffice). In this case, the State met its burden by presenting two witnesses who testified that they saw Dean commit similar acts with the victim's older sister.

(b) Dean contends that the trial court erred by admitting evidence of his conduct with the twins in 1984 because it was too remote in time and took place when he was a minor only two years older than the twins. Dean correctly asserts that when a similar transaction is remote in time,

additional considerations are required. As a general rule, the lapse of time generally goes to the weight and credibility of the evidence, not to its admissibility. Nonetheless, where similar transactions are particularly remote because they were committed decades in the past, the passage of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, although it is not wholly determinative. This factor takes on heightened significance when the similar transaction evidence is comprised of alleged acts for which there is no prior record of their occurrence. Although a similar transaction may have been committed many years in the past, any prejudice from its age may nonetheless be outweighed by its probative value, depending on the particular facts of each case and the purpose for which the similar transaction is being offered.

(Citations and punctuation omitted.) Pareja v. State, 286 Ga. 117, 119–120, 686 S.E.2d 232 (2009). Additionally, “a defendant's youth at the time of the similar transaction should be considered when deciding if the testimony should be admitted to show lustful disposition and inclination, i.e., bent of mind.” (Citation and punctuation omitted.) Maynard v. State, 282 Ga.App. 598, 604(3), 639 S.E.2d 389 (2006). But “[t]his rule is most liberally extended in cases involving sexual offenses 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.” (Citations and punctuation omitted.) Pareja, supra, 286 Ga. at 121, 686 S.E.2d 232. And “[a]s a general rule, the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence.” (Citations, punctuation and footnote omitted.) Jackson v. State, 309 Ga.App. 450, 451(1), 710 S.E.2d 649 (2011).

Based upon all of these guiding principles, we conclude that the trial court did not err by admitting evidence of Dean's similar conduct in sexually abusing minors in the middle of the night while the householdwas asleep. See Pareja, supra, 286 Ga. at 121, 686 S.E.2d 232 (allegation of child molestation 26 years in past admissible); Pendley v. State, 308 Ga.App. 821, 824(2), 709 S.E.2d 18 (2011) (similar act of child molestation 30 years in past admissible). Compare Tyson v. State, 232 Ga.App. 732, 732–733(1), 503 S.E.2d 640 (1998) (similar acts that were between 27 and 40 years before offenses at issue held inadmissible). Although there was no prior record of the events, the testimony...