Dixon v. State

• Decision Date: 19 April 2017
• Docket Number: A17A0233
• Citation: 800 S.E.2d 11
• Parties: DIXON v. The STATE.
• Court: Georgia Court of Appeals

341 Ga.App. 255

800 S.E.2d 11

DIXON

v.The STATE.

A17A0233

Court of Appeals of Georgia.

April 19, 2017

Richard K. Murray, for Appellant.

Herbert E. Franklin, La Fayette, for Appellee.

Self, Judge.

Eric Dixon appeals from his convictions of one count of aggravated child molestation and four counts of child molestation. He argues that the trial court erred in (1) admitting evidence qualifying as "another offense of sexual assault" under OCGA § 24-4-413 or "another offense of child molestation" under OCGA § 24-4-414 ; and (2) declining to exercise its discretion to grant a new trial because the verdict was contrary to the weight of the evidence under OCGA § 5-5-21. For the reasons explained below, we affirm.

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence "is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Citations and punctuation omitted.) Hayes v. State , 292 Ga. 506, 739 S.E.2d 313 (2013). So viewed, the record shows that the female victim, who was 15 years old at the time of the trial, testified that Dixon dated her mother. When the victim was around nine to ten years old, Dixon touched her breasts, but she never told her mother.

Another incident occurred when the victim was lying on the floor and her mother was asleep on the couch. Dixon placed a blanket over the victim, laid down beside her, and touched her vaginal area with his hand underneath her clothing. Her mother did not awaken, and the victim did not tell her what Dixon had done.

On a different occasion, Dixon instructed the victim to "suck his penis" in the kitchen after her mother went to the store. She explained that she did not want to do it, but "every time he would pull me forward, I jerked away and he kept on doing it and I had did it and he wanted me to do it more and I kept on jerking away and pulling my head away and I didn't do it anymore." On this same occasion, Dixon made her touch his penis. The victim explained that Dixon told her "he would hurt [her] or [her] family" if she told or did not do what he wanted.

When the victim later told her aunt about Dixon's conduct, the aunt took her to the police, where the victim spoke with a detective. She subsequently gave a video-recorded forensic interview at the Children's Advocacy Center, and the State played the video for the jury during the trial. At the beginning of the interview, in response to a question about why she was being interviewed, the victim stated it was "about me being raped or sexual touch." She described the incident in the kitchen as happening while her mother "was passed out on the couch." At trial, the victim admitted that this last statement was inconsistent with her testimony that her mother was at the store when the incident in the kitchen occurred.

At one point during the interview, the victim stated that her mother was doing "really bad right now" and would leave her at home alone when she would go out. She explained that this was why she wanted to go live with her father. She also described a meeting with both of her parents a few days before the interview in which her mother said she did not know about Dixon's behavior. According to the victim, her mother "tried to lie about it," because the mother also stated that the victim's grandparents knew about it. According to the victim, her mother finally admitted that she did know about Dixon's behavior, but the victim did not know how her mother knew about it.

At trial, the victim conceded that her version of events in the forensic interview made it appear like Dixon's abuse occurred "every time her mom left" over a two-year period and that this was not true. She also acknowledged that her aunt no longer allowed her to live in her home because of a dispute relating to lying and that she was currently living with her mother again after a stint in foster care. Finally, she denied telling another adult that Dixon had penetrated her vagina with his penis.¹

The victim's grandmother testified that it was her personal opinion that the victim's character was one of untruthfulness. According to the grandmother, the victim confessed to her that she had lied about Dixon saying "something out of the way to her." It is unclear from the grandmother's testimony what is meant by saying "something out of the way." According to the victim, Dixon was good friends with her grandparents.

The State also introduced evidence of another offense of child molestation or sexual assault. W. T., who was 23 years old at the time of the trial, testified that when he was between the ages of six and eleven years old, Dixon, who was married to his mother, began touching his genitals. Over time, Dixon began having anal sex with W. T., and W. T. performed oral sex upon Dixon. W. T. testified that Dixon threatened to take him into the woods and shoot him if he told anyone what they did.

When W. T. told his mother what was happening in the fourth or fifth grade, Dixon was waiting for him when he came home from school and yelled at him and accused him of lying. Dixon then took W. T. and his mother to W. T.'s school "and then started yelling at all the counselors and people in the front office" about the allegations. At that point in time, W. T. had only told his mother about Dixon's sexual abuse. After this incident at the school, "nothing ever happened and no investigation was launched[.]" W. T. explained that "[i]t was just a whole ordeal and then [Dixon] left for a while and then came back." When W. T. turned 11 years old, the abuse started slowing down and it ultimately stopped after his mother ended the relationship.

The investigating police officer testified that school counselors are mandatory reporters who are required to notify law enforcement of allegations of child molestation. He acknowledged, however, that "[t]here are times when it doesn't get reported by [a] mandated reporter...." He explained that he did not do any investigation of W. T.'s allegations of molestation because they took place in a different county and that he therefore referred W. T. to the sheriff's office in that county.

1. Dixon maintains that the "trial court erred by allowing uncorroborated and unduly probative testimony [by W. T.] which was substantially prejudicial to Dixon's defense." We disagree.

As this case was tried after July 1, 2013, the effective date of Georgia's new Evidence Code, Ga. L. 2011, p. 99 § 101, the State sought to introduce W. T.'s testimony pursuant to OCGA § 24-4-404 (b), OCGA § 24-4-413 (b), and OCGA § 24-4-414 (b).

OCGA § 24-4-413 (a) provides: "In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant." Id. An offense of sexual assault includes sodomy. See OCGA § 24-4-413 (d) (1) ; OCGA § 16-6-2 (a) (1).

OCGA § 24-4-414 (a) provides: "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." An "offense of child molestation" is defined as "any conduct or attempt or conspiracy to engage in ... [a]ny crime that involves contact between any part of the accused's body ... and the genitals or anus of a child...." OCGA § 24-4-414 (D) (2).

These provisions supersede the provisions of OCGA § 24-4-404 (b)² in sexual assault and child molestation cases. See Steele v. State , 337 Ga.App. 562, 566 (3), n. 5, 788 S.E.2d 145 (2016) ; Dority v. State , 335 Ga.App. 83, 95 (3), 780 S.E.2d 129 (2015), and "create a ‘rule of inclusion,’ with a strong presumption in favor of admissibility as [each] provides that such evidence ‘shall be admissible.’ " (Citations omitted.) Steele , supra, 337 Ga.App. at 566 (3), 788 S.E.2d 145. Thus, the State can seek to admit evidence under these provisions for any relevant purpose, including propensity. Id. ; Dority , supra.

(a) Dixon contends that W. T.'s testimony should not have been admitted because it was uncorroborated and the State did not "produce any evidence [that W. T.'s] allegations were ever reported or investigated." As Georgia's new evidence rules mirror their federal counterparts, our appellate courts "look for guidance to the decisions of the federal appellate courts, particularly the United States Supreme

Court and the Eleventh Circuit, interpreting the federal rules in question." Davis v. State , 299 Ga. 180, 185 (2) (a) (2), 787 S.E.2d 221 (2016). An examination of this guidance shows that corroboration,³ criminal charges, or a conviction are not required for the admission of other acts evidence under the Federal Rules of Evidence. See United States v. Bush , Case No. 5-15401, 2016 WL 7383971 at *2, 2016 U. S. App. LEXIS 22878 at *3-4 (11th Cir. 2016) ("[a] single witness's uncorroborated testimony can provide an adequate basis for a jury to find that the prior act occurred"); United States v. Guidry , 456 F.3d 493, 501-502 (III) (A) (1) (5th Cir. 2006) (terms "offense" and "crime" in Federal Rule of Evidence 413 do not limit the evidence to that which is proven by conviction); Johnson v. Elk Lake School Dist. , 283 F.3d 138, 151 (III) (D) (3rd Cir. 2002) (uncharged conduct admissible under Federal Rules of Evidence 413 -415 ). Indeed, a prior acquittal of a criminal charge will not necessarily preclude admission of other act evidence under the Federal Rules of Evidence. See United States v. Smith , 148 Fed.Appx. 867, 870 (11th Cir. 2005). Finally, a trial court "need not make a preliminary...