Harris v. State
| Decision Date | 16 March 2017 |
| Docket Number | A16A2041 |
| Citation | 340 Ga.App. 865,798 S.E.2d 498 |
| Parties | HARRIS v. The STATE. |
| Court | Georgia Court of Appeals |
James Michael Miller, Valdosta, for Appellant.
Michael Scott Carlson, Augusta, D. Victor Reynolds, Marietta, for Appellee.
A jury found George Harris guilty of six counts of child molestation,1 and the trial court sentenced him to forty years of imprisonment, to serve thirty. Harris appeals from the denial of his motion for new trial, contesting the admission of similar transaction testimony, the sufficiency of the evidence, and the failure to merge his convictions for sentencing. For the reasons set forth, infra, we affirm.
Viewed in the light most favorable to the jury's verdict,2 the evidence shows that the victims, who were ten and eleven years old at the time of trial, were the granddaughters of a woman who was Harris's girlfriend at the time of the alleged acts of molestation.3 The victims, their two brothers, and their mother lived with the victims' grandmother and Harris. When the younger victim was seven years old, she told her brother that her "tee-tee was burning ... because of [Harris]." The younger victim and her brother told their mother, who took the girls to the hospital for an examination.
At trial, the younger victim testified that Harris had touched her with his hand where she went "number one" more than one time on different days, and that she had seen him touching his "thing" that he used when he went to the bathroom. The older victim testified that, on more than one occasion, she had seen Harris touch her sister with his hand on her front "private part." Harris had also touched the older victim's "tee-tee" and "bottom" and had tried to get her to touch his "private part."
The examining doctor called the police, and, later that morning, a detective conducted videotaped forensic interviews of the girls. The detective testified at trial and identified the videotaped interviews,4 which were played for the jury. During the interview, the younger victim told the detective that Harris had touched her private area more than once and indicated on a female anatomical drawing where Harris had touched her. She said that Harris touched his penis during these incidents and grabbed the older victim's hand to try to get her to touch his penis. The older victim initially told the detective that Harris had touched her genitalia, but later denied it. Because the younger victim described Harris's penis, the detective obtained a search warrant to obtain photographs of his penis, which were introduced into evidence at trial.
The examining physician, who was qualified as an expert in emergency room pediatric medicine, testified that the younger victim referred to her genital area as her "tee-tee" and that this was a common term for a vagina at the child's age. The doctor testified that the younger victim reported that her vagina hurt because Harris had touched her there. She also testified that the older victim told her that she had seen Harris touching her sister's private part. The older victim denied that Harris had touched her genitalia, but said that he had asked her to touch his penis. The doctor testified further that the younger victim had erythema (or redness) on her right labia minora, which was not conclusive evidence of molestation, but could have resulted from excessive touching.
The trial court granted a directed verdict on one count of the indictment involving the younger victim, and the jury found Harris not guilty of one count involving the older victim. The jury found Harris guilty of the remaining six counts of child molestation. The trial court denied Harris's motion for new trial. This appeal followed.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia .[5 ] As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.6
With these guiding principles in mind, we turn now to Harris's specific claims of error.
OCGA § 24-4-414 (a) provides that, "[i]n 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." "[I]n this specific context, showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct."7 "[A] trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion."8
In August 2012, the State provided notice of its intent to present evidence of similar transactions, pursuant to the old Evidence Code.10
On April 25, 2013, 11 days before trial started, the State filed a notice under the new Evidence Code, listing the same witnesses. A hearing on the admissibility of the similar transaction evidence was held on April 30, 2013. The trial court overruled Harris's objection that the notice was not timely, finding that the notice was proper and that, even if the hearing was not timely held, the period for providing notice should be shortened or excused for good cause shown during the hearing.
Harris seems to argue that the State did not provide notice of its intent to present evidence of similar transactions until six days prior to trial, the date of the hearing on the admissibility of the similar acts evidence. Even assuming that Harris did not receive the April 25, 2013 amended notice until the hearing five days later, we find no harmful error. Harris has not demonstrated that the notice provided under the old Evidence Code in August 2012 was insufficient to satisfy OCGA § 24-4-414 (b). Moreover, Harris does not allege error with respect to the trial court's finding of good cause to shorten the pretrial notice period. We thus find no error.
C. H. testified that, she and Harris grew up in the same household. On three occasions when she was approximately 13 years old, Harris pinned her against furniture or the floor in a "bear hug," pulled down his pants, and attempted to "put his private into [her]" before she managed to get away.
Exclusion of proof of other acts that are too remote in time caters principally to the dual concerns for relevance and reliability. The evaluation of the proffered evidence in light of these concerns must be made on a case-by-case basis to determine whether the significance of the prior acts has become too attenuated and whether the memories of the witnesses has likely become too frail. Neither Rule 403 nor any analogous Rule provides any bright-line rule as to how old is too old.11
Although C. H.'s testimony was remote in time, the trial court did not clearly abuse its discretion in allowing C. H.'s testimony, as it was relevant to show Harris's lustful disposition with respect to preteen or teenaged girls and his pattern of molesting young girls with whom he was living.12
(c) Harris also argues that the trial court abused its discretion in allowing S. H. (C. H.'s daughter and Harris's niece) to testify as a similar transaction witness. He contends that the prejudicial effect of her testimony substantially outweighed any probative value where she alleged only that he had kissed her, and did not allege any other inappropriate touching, and had made no outcry until approximately ten years later.
S. H., who was twenty-two years old at the time of trial, testified that, when she was nine years old, Harris had approached her, given her a "long hug," and kissed her, trying to put his tongue in her mouth. This happened on two or three occasions. We find no clear abuse of discretion in the admission of S. H.'s testimony as it demonstrated Harris's lustful disposition toward girls of a similar age as the victims and his pattern of initiating sexual contact with young female family members.13
(d) Harris contends that the trial court erred in admitting the testimony of J. W. because its prejudicial effect outweighed its probative value, as the alleged incident about which she testified had occurred sixteen years earlier, there were no witnesses, and no report was ever made to the police.
J. W., who was 29 years old at the time of trial, testified that she had lived across the street from Harris as a child and had visited his house when her uncle was dating Harris's sister, C. H. On one occasion when J. W. was 13 years old, she was at Harris's home when he cornered her in a bedroom, grabbed her, fondled her butt and breast, kissed her on the neck, and touched her private area. J. W. ran out of the house and later told her uncle and C. H. C. H. testified that she confronted Harris after J. W. reported the incident, and he kicked her and her family out of the house.
Harris has failed to show a clear abuse of discretion in the admission of J. W.'s testimony, as it also demonstrates a pattern of molesting young girls of a certain age in his home.14
(e) Harris contends that the trial court abused its discretion in allowing the victims' mother to testify that she had observed him masturbating in his home, arguing that there was no link between the legal act of masturbation and the crimes charged.
The victims' mother testified that,...
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