Frazier v. State, A99A0880.
| Decision Date | 08 November 1999 |
| Docket Number | No. A99A0880.,A99A0880. |
| Citation | 524 S.E.2d 768,241 Ga. App. 125 |
| Parties | FRAZIER v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Virginia W. Tinkler, Decatur, for appellant.
J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.
Following a jury trial, David Frazier was convicted of two counts of child molestation. OCGA § 16-6-4. On appeal, Frazier contends the trial court erred in admitting sexually explicit material possessed or authored by him and by failing to merge his convictions at sentencing.
Viewed in the light most favorable to support the verdict, the evidence shows that Frazier lived with an adult woman and her four-year-old daughter. According to the child's testimony, Frazier exposed his penis to the child while he was babysitting her. He then told the child to get some lotion from another room, and, upon her return, he had her put the lotion on his penis with her hand. The State introduced similar transaction evidence that showed Frazier later married another woman and also molested her daughter, T.P. Regarding the first child, the jury convicted him of two counts of child molestation (exposing his penis and placing his penis in her hand). The jury acquitted him of a third count, aggravated child molestation, in which Frazier was charged with placing his penis in the victim's mouth.
1. The State gave notice it intended to introduce certain evidence of Frazier's "lustful disposition," specifically (1) Frazier's possession of pornographic videotapes and sexual toys used with his wife, (2) Frazier's unfulfilled wedding night request to his wife for an adult group masturbation session, and (3) his pre-nuptial letter to his wife making explicit sexual requests of her. Following a pre-trial hearing, the trial court ruled it would allow the evidence. When the evidence came in, the court gave no contemporaneous limiting instruction. During its concluding charge on the law, the trial court instructed the jury:
Evidence that the Defendant was found to be in possession of pornographic material can be considered by you, the jury, as proof of the Defendant's bent of mind toward the sexual activity with which he was charged, or as proof of the Defendant's lustful disposition.
The case law has been "unclear and unsettled" as to the admissibility in a prosecution for a sexual offense of "physical evidence of a sexual nature, such as writings, drawings, photographs, or paraphernalia connected with the defendant." Simpson v. State, 271 Ga. 772, 523 S.E.2d 320 (1999). In Simpson, the Supreme Court of Georgia recently disapproved admitting evidence of a defendant's possession of sexually explicit material for the sole purpose of showing defendant's "lustful disposition" or "bent of mind" toward sexual activity in general. Id. The Supreme Court put forth this clear and cogent rule:
In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant's possession is inadmissible unless it shows defendant's lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant's interest in sexual activity. It can only be admitted if it can be linked to the crime charged.
Id. at 774(1), 523 S.E.2d 320.
In this case, the sexually explicit material was offered for the purpose of showing Frazier's lustful disposition in general and was not linked to the crime charged. None of the materials depicted or referred to the sexual activity with which Frazier was charged, that is, sexual contact with a child. Cf. Touchton v. State, 210 Ga.App. 700, 701(2), 437 S.E.2d 370 (1993) (). Further, none of the materials were otherwise linked to the crime charged, for example, by being shown to the child victim. Cf. Altman v. State, 229 Ga.App. 769, 771(4), 495 S.E.2d 106 (1997) (). The trial court's charge to the jury specifically authorized the jury to consider the evidence solely as evidence of Frazier's lustful disposition. The clear rule announced by the Supreme Court in Simpson, supra, dictates the conclusion that the trial court erred in admitting evidence going only to proving Frazier's lustful disposition.
Furthermore, even though the State presented a substantial amount of inculpatory evidence, we are precluded under the circumstances...
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Scott v. State
...citing in support its prior decisions in Daniel v. State , 292 Ga. App. 560, 565-566, 665 S.E.2d 696 (2008), and Frazier v. State , 241 Ga. App. 125, 126, 524 S.E.2d 768 (1999). See Scott , slip op. at –––– – ––––.Scott then petitioned for a writ of certiorari, arguing among other things th......
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New v. State
...days before trial unless the time is shortened or lengthened by the judge.”) (amended Nov. 28 2013). 37.Cf. Frazier v. State, 241 Ga.App. 125, 125–26(1), 524 S.E.2d 768 (1999) (sexually explicit materials were not admissible because they were offered to show lustful disposition in general a......
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Newton v. State
... ... Newton maintains that the evidence was introduced to show his lustful disposition, a purpose prohibited by Simpson v. State29 and Frazier v. State.30 In Simpson,31 our Supreme Court disapproved the practice of admitting sexually explicit material to show a defendant's lustful ... ...
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Mooney v. State, A03A2462.
...361 (2001) (evidence presented to show defendant's lustful disposition and was not linked to the crime charged); Frazier v. State, 241 Ga.App. 125, 126(1), 524 S.E.2d 768 (1999). 14. See generally Walker v. State, 228 Ga.App. 509, 510(1), 493 S.E.2d 193 (1997); Green v. State, 127 Ga.App. 7......