Helton v. State, A95A0104

• Decision Date: 30 June 1995
• Docket Number: No. A95A0104,A95A0104
• Citation: 458 S.E.2d 872,217 Ga.App. 691
• Parties: HELTON v. The STATE.
• Court: Georgia Court of Appeals

Page 872

458 S.E.2d 872

217 Ga.App. 691

HELTON v. The STATE.

No. A95A0104.

Court of Appeals of Georgia.

June 30, 1995.

Timothy Helton, pro se.

Summer & Summer, Daniel A. Summer, Gainesville, for appellant.

Lydia J. Sartain, Dist. Atty., Denise M. Arenth, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Timothy Helton appeals his conviction for aggravated child molestation. Helton contends the trial court erred by admitting evidence of a similar transaction because the information was gained in violation of the marital privilege contained in OCGA § 24-9-21, the transaction was not sufficiently similar under Williams v. State, 261 Ga. 640, 409 S.E.2d 649, and the State was collaterally estopped from relitigating the issue because the evidence was not admitted in an earlier trial of the case that ended in a mistrial. Helton also contends the trial court erred by not granting a mistrial after his sister-in-law testified that Helton and his wife had engaged in "threesomes" in the past; by allowing the victim's mother to explain why she thought the victim could not demonstrate the sodomy alleged with anatomically correct dolls; by allowing a State's witness to testify that she believed the victim was telling the truth; and by refusing to charge on the lesser included offense of child molestation.

Helton was indicted for aggravated sodomy after the victim told her father, mother, and the Department of Family & Children Services (DFCS) investigator that Helton had pulled down her pants and licked her bottom. Helton's first trial ended in a mistrial after a witness's testimony exceeded limitations established by the trial court. Upon his retrial, Helton was convicted as charged, and this appeal followed. Held:

1. Helton's first enumeration of error concerns testimony by his wife's sister that she overheard Helton and his wife talking about the two of them engaging in some sort of sexual activity with a 15-year-old girl, including their plan to drug the teenager so that she would participate in the sex acts.

(a) Helton's contention that this testimony violated the marital privilege contained in OCGA § 24-9-21 is without merit. As neither spouse testified about matters protected by OCGA § 24-9-21, there was no violation. This Code section does not prohibit testimony about communications between spouses by someone who overheard the communication. Knight v. State, 114 Ga. 48, 39 S.E. 928. Although Helton asks us to reverse this precedent, we cannot do so because decisions of our Supreme Court are binding upon this court. The decision in Sims v. State, 251 Ga. 877, 311 S.E.2d 161, relied upon by Helton, is distinguished on its facts because that opinion concerns the psychiatrist-patient privilege and the third party was present as an integral part of the therapy.

(b) Helton's contention that the transaction concerning the teenager was not sufficiently similar under Williams v. State, supra at 642, 409 S.E.2d 649, is also without merit. Evidence of similar crimes has been most liberally extended in cases concerning sex crimes. Johnson v. State, 242 Ga. 649, 250 S.E.2d 394. Further, evidence concerning sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible when the accused is being tried for some form of sexual abuse of a child. Oller v. State, 187 Ga.App. 818, 820, 371 S.E.2d 455. See also Adams v. State, 208 Ga.App. 29, 32-34, 430 S.E.2d 35 (physical precedent). In this instance, we find the crimes sufficiently similar to warrant admission, notwithstanding the difference in the ages of the victims. See Yelverton v. State, 199 Ga.App. 41, 43, 403 S.E.2d 816. Consequently, we find the evidence was admissible. Stephens v. State, 261 Ga. 467, 405 S.E.2d 483; Williams v. State, supra.

(c) Helton's contention that the State was collaterally estopped from relitigating the trial court's ruling in his first trial which limited evidence concerning the similar transaction to testimony by his sister- in-law is also without merit. The trial court did not err by allowing the teenage girl who was the intended victim of Helton's scheme to testify about the incident because a proceeding that ends in a mistrial does not result in a final judgment that would limit issues under the doctrine of collateral estoppel or bar another trial. 1983 Ga. Const., Art. I, Sec. I, Par. XVIII. Moreover, a trial court can modify a ruling on a motion in limine. Agnor's Georgia Evidence (2d ed.), Motion in Limine, § 8-1.1, citing Frink v. State, 177 Ga.App. 604, 340 S.E.2d 631.

2. Helton also contends the trial court erred by denying his motion for a mistrial after his sister-in-law referred to other "threesomes" involving Helton, his wife, and others. The transcript shows that the witness testified that Helton and his wife "were talking about their past, threesomes," when Helton interrupted her testimony to seek a hearing out of the presence of the jury so he could move for a mistrial because the testimony about the "threesomes" improperly placed his character in issue. After the trial court denied the motion and instructed the jury to disregard this testimony, Helton renewed his motion for a mistrial. Under the circumstances, we find no abuse of discretion, and, hence, no error. "When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper...