Gentry v. State
| Decision Date | 18 April 1994 |
| Docket Number | No. A94A0125,A94A0125 |
| Citation | 213 Ga.App. 24,443 S.E.2d 667 |
| Parties | GENTRY v. The STATE. |
| Court | Georgia Court of Appeals |
Patrick F. McMahon, Atlanta, for appellant.
T. Joseph Campbell, Dist. Atty., H. Gray Skelton, Jr., Asst. Dist. Atty., for appellee.
Appellant was convicted of two counts of child molestation of his two stepchildren. OCGA § 16-6-4.
1. Appellant contends that there was insufficient evidence to convict him. The state presented testimony of the two victims that appellant had committed the crimes charged. Additionally, the victims' mother, the investigating officer, and a social worker all testified that they had heard the victims state that they had been molested by the appellant; audio tapes of some of these statements were played. The evidence presented at trial was sufficient to authorize his conviction under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The trial court admitted evidence of the results of a penile plethysmograph test performed on the defendant. This procedure involves placing a measuring gauge on a subject's penis, exposing the subject to various visual and aural stimuli, and measuring the change in the circumference of the subject's penis. The procedure measures the physiological change in blood flow. This state has not previously addressed the admissibility of such evidence.
The test for admissibility of novel scientific evidence is Harper v. State, 249 Ga. 519, 525-526(1), 292 S.E.2d 389 (1982).
It appears that those states that have addressed the issue of the admissibility of plethysmograph evidence have rejected the technique, due to its unreliability and lack of verifiable certainty. See In the Interest of A.V., 849 S.W.2d 393, 399 (Tex.App.1993) (); Nelson v. Jones, 781 P.2d 964, 968 (Alaska 1989) (); Dutchess County Dept. of Social Services v. Mr. G., 141 Misc.2d 641, 534 N.Y.S.2d 64, 71 (Fam.Ct.1988) (); People v. John W., 185 Cal.App.3d 801, 229 Cal.Rptr. 783, 785 (Cal.App. 1 Dist.1986) ().
Testimony at trial revealed that reliability of the technique is by no means established. No scholarly works discussing it were introduced. No national guidelines have been adopted for its use. Given the rejection of penile plethysmograph evidence by other states, and particularly the uncertainty within the scientific community of its reliability, we hold that it is inadmissible in Georgia.
The results of the plethysmograph were used to support the conclusions of a witness that the defendant was not forthcoming in psychological examinations about his sexuality and that he was not normally aroused by adult women. In such circumstances, it cannot be said that admission of the plethysmograph evidence was harmless. A new trial is required.
3. Appellant contends that the court erred in allowing the evidence of a similar transaction to be presented at trial. Because it may be introduced at retrial, the question of its admissibility is not moot.
Appellee contends that the admitted evidence falls into an exception for those occurrences "immediately related in time and place to the charge being tried, as part of a single, continuous transaction." USCR 31.3(E). The similar transaction occurred in a different county, approximately two years prior to the incident for which the defendant was convicted. The court properly instructed...
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