Frady v. State

• Decision Date: 30 March 2021
• Docket Number: A21A0159
• Citation: 857 S.E.2d 260,359 Ga.App. 255
• Court: Georgia Court of Appeals
• Parties: FRADY v. The STATE.

359 Ga.App. 255

857 S.E.2d 260

FRADY

v.The STATE.

A21A0159

Court of Appeals of Georgia.

March 30, 2021

Banks Stubbs & McFarland, Jacob C. Stidham, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Michael S. Mahoney, Assistant District Attorneys, for appellee.

McFadden, Chief Judge.

Timothy Frady appeals from his convictions for sexual offenses committed against his stepdaughter. He claims that the trial court erred in allowing evidence of prior acts of child molestation of which he was acquitted. But the fact of acquittal did not necessarily render the prior acts evidence inadmissible. Frady also claims that the court erred in limiting his closing argument. But the court did not err in prohibiting argument that was not based on evidence in the case. Frady also claims that the court gave an inappropriate jury charge. But there has been no showing of plain error in the jury charge based on an objection not raised below. So we affirm the convictions.

1. Facts and procedural posture.

Viewed in the light most favorable to the verdict, see Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that Frady molested his minor stepdaughter, including engaging in sexual intercourse with her. When the child was 13 years old, she disclosed the abuse to a friend and the police were called. An officer who responded to the call spoke to the victim, who told the officer about the sexual abuse by Frady.

The state charged Frady by indictment with rape, incest, and two counts of child molestation. Frady pled not guilty to the charges and was tried before a jury, which found him guilty of all counts. The trial court ruled that one of the child molestation charges merged with the rape and imposed a life sentence for rape, a concurrent 26-year sentence for incest, and a concurrent 20-year sentence for the other child molestation offenses. Frady moved for a new trial, which the trial court denied. This appeal followed.

2. Other acts of child molestation.

Prior to trial, the state filed notice of its intent to present evidence of prior acts of child molestation of which Frady had been acquitted. After a hearing, the trial court ruled that such evidence was admissible even though Frady had been acquitted, finding that the probative value of the evidence outweighed any danger of unfair prejudice. See OCGA § 24-4-403. Thereafter, Frady's adult daughter from a prior marriage was allowed to testify at trial that Frady had molested her when she was a minor child by, among other things, touching her breasts, touching her vagina, and masturbating in front of her. She further testified that she had disclosed the abuse when she was 13 years old and that Frady was subsequently tried before a jury, but that he was not convicted.

Frady argues that the trial court erred in allowing this testimony because he was acquitted of the prior acts of child molestation. But it is well settled that an acquittal of similar charges does not preclude admission of evidence of said charges under our rules of evidence. See Ward v. State , 351 Ga. App. 490, 499 (2) n. 18, 831 S.E.2d 199 (2019) ; Hamlett v. State , 350 Ga. App. 93, 100 (2), 828 S.E.2d 132 (2019).

Indeed, a prior acquittal of a criminal charge will not necessarily preclude admission of [such] other act evidence.... [A] trial court need not make a preliminary finding that the alleged prior similar conduct in fact occurred before admitting it into evidence. Instead, a trial court's decision to admit other act evidence will be affirmed if a jury could find by a preponderance of the evidence that the defendant committed the act.

Dixon v. State , 341 Ga. App. 255, 259 (1) (a), 800 S.E.2d 11 (2017) (citations and punctuation omitted).

In this case, the jury could have found by a preponderance of the evidence that Frady committed the prior acts of child molestation. So the prior acts evidence was admissible under OCGA § 24-4-414 (a), which 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." See Dixon , 341 Ga. App. at 258 (1), 800 S.E.2d 11 ( OCGA § 24-4-414 (a) "create[s] a rule of inclusion, with a strong presumption in favor of admissibility.... Thus, the [s]tate can seek to admit evidence under [this provision] for any relevant purpose, including propensity.") (citations and punctuation omitted). As there has been no showing that the trial court improperly found that the probative value of the evidence outweighed the danger of unfair prejudice, we hold that "the trial court did not abuse its discretion in admitting the [other acts of child molestation] evidence on this ground." Edwards v. State , 357 Ga. App. 318, 325-26 (3), 850 S.E.2d 797 (2020).

3. Closing argument.

During closing argument, counsel for Frady mentioned a prior unrelated case from another state involving false allegations of sexual abuse and then started to discuss the term "evolved memories." The state objected on the ground that there had been no evidence presented on such a psychiatric term, and the court sustained the objection. Frady claims that the trial court's ruling erroneously limited his closing argument. We disagree.

Closing argument must be derived from evidence properly before the factfinder, and prosecutors and defense counsel are permitted wide latitude in their closing arguments. Indeed, the permissible scope of argument is vast: counsel may draw from the evidence properly before the factfinder any inference apparently reasonable and legitimate. But while the range of discussion during closing argument is wide, counsel should not go outside the facts appearing in the case and lug in extraneous matters as if they were a part of the case.

Lewis v. State , 317 Ga. App. 218, 222 (3), 735 S.E.2d 1 (2012) (citations and punctuation omitted). Here, the trial court did not err in sustaining an objection to defense counsel's attempt to discuss an extraneous matter which was not based on evidence in the case. See Conner v. State , 251 Ga. 113, 123 (6), 303 S.E.2d 266 (1983) ("What the law condemns is the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.") (citation and punctuation omitted).

4. Jury charge.

Frady contends that the court's jury charge on the offense of rape improperly reduced the burden of proof for the element of force. But he did not raise this objection to the charge in the trial court. While the record shows that Frady objected at the charge conference that the charge was not the pattern jury instruction and that he renewed that objection after the jury instructions, he never specified as a ground for objection that the charge reduced the burden of proof for the element of force. Because Frady failed to inform the trial court of the specific ground for objection now raised on appeal, our review "is limited to plain...