Mooney v. State, A03A2462.
| Decision Date | 25 March 2004 |
| Docket Number | No. A03A2462.,A03A2462. |
| Parties | MOONEY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Jeffrey R. Sliz, Lawrenceville, for appellant.
Jason J. Deal, Dist. Atty., Melissa J. Sanford, Asst. Dist. Atty., for appellee.
Ron Mooney was indicted on three counts of aggravated child molestation for placing his penis in the mouth of a child under the age of sixteen, for placing his mouth on the child's genitals, and for allowing an adult (the child's mother) to place her mouth on his penis in the presence of the child. The indictment further charged Mooney with two counts of child molestation for placing his penis in the child's vagina and for placing his hands on the child's vagina and one count of enticing a minor for indecent purposes by taking the child to a particular location (residence of Debra Watson) for the purpose of child molestation. Following a jury trial, Mooney was convicted on all counts. On appeal, he challenges the trial court's denial of his motion to dismiss the indictment based on his claim of selective and discriminatory prosecution, and he challenges various evidentiary rulings. Because the record demonstrates no reversible error, we affirm.
At trial, the state presented the testimony of the victim, who stated that on several occasions during the summer of 1999, when she was 14 years old, Mooney took her and her mother to the residence of Debra Watson. There, Mooney gave her crack cocaine and she performed oral sex on him. The victim testified that one day during her 2000 spring break, she called Mooney, asking him to pick her up. Mooney picked her up and took her to a motel room, where they used crack cocaine; she performed oral sex on him; he touched her breast and her vagina with his hands and with his mouth; and he inserted his penis into her vagina. She testified that, the next day, she contacted Mooney again. Mooney picked her up and took her to another motel room, where she used drugs; he placed his hands on her breasts and genital area; he performed oral sex on her; she performed oral sex on him; and he inserted his penis in her vagina.
The state also presented the testimony of the victim's mother, who stated that she had introduced her daughter to Mooney, who was, at that time, the mother's boyfriend. The mother admitted that, on several occasions, she allowed her daughter to go with her and Mooney to Watson's residence, where she and her daughter had engaged in oral sex with Mooney in exchange for drugs. The state presented the testimony of Watson, who recalled that during the summer of 1999, she saw first the victim and then the victim's mother perform oral sex on Mooney, and then each smoke crack cocaine. Also, the state presented as similar transaction evidence a videotape that showed Mooney telling women that he would give them drugs for sex and the women performing oral sex on Mooney.
Mooney took the stand and denied committing each count of the indictment. He recalled that during the pertinent time period, parties were held at Watson's residence: "perhaps a dozen people who were mostly drug addicts and mostly party-type people, who would get together on a regular basis and someone would provide stuff to smoke and ... it was party central." He stated that he had seen the victim with her mother at Watson's residence and that he had seen the victim smoking crack. He testified that, although he sometimes had provided drugs for the parties, he had not given drugs to the victim. Mooney stated that what was shown by the videotape was similar to what had been happening at Watson's house. He testified that the videotape depicted no minors and that the recording had been made "for the pride and the pleasure of the people on [it]." Mooney denied ever seeing the victim at a motel.
1. Mooney contends that the trial court erred by denying his motion to dismiss the indictment on the basis of selective prosecution by the state. A defendant has the burden of proving, by the weight of the evidence, that his prosecution represents an "intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification."1 A showing that others were not prosecuted for doing what the defendant allegedly did is not, in itself, sufficient to establish selective prosecution.2 A defendant must further show, through the testimony of the district attorney or otherwise, the extent of other investigations or prosecutions of those who allegedly committed similar offenses.3 If it appears that, despite knowledge of apparently similar offenses, the district attorney conducted little or no investigation into those offenses or initiated no prosecutions of any such offenses, the district attorney must then demonstrate that the defendant's prosecution is something other than selective prosecution.4 The trial judge as trier of fact might find that similar offenses have gone uninvestigated or unprosecuted, that the district attorney knew or should have known of such offenses, and that failure to act was without a reasonable and responsible explanation.5
Based on such a finding, the trier of fact might conclude that the circumstances support an inference of the existence of "intentional or purposeful discrimination" based upon an "unjustifiable standard" of an "arbitrary classification."... Such a conclusion would equate to selective prosecution.6
(a) Citing gender as the arbitrary classification, Mooney points out that the victim had not been prosecuted for engaging in pandering and drug-related activities. As Mooney also has not been prosecuted for participating in those activities, we find no error in the trial court's denial of his motion on this ground.
(b) Apparently citing race as the arbitrary classification, Mooney asserts that a black male had had sex with the victim in his presence, but had not been prosecuted. At the evidentiary hearing on Mooney's motion to dismiss the indictment, the prosecutor explained that no black man had been prosecuted for sexual crimes against the victim because the state had not yet ascertained any such man's identity. The prosecutor stated, "[a]ny time Mr. Mooney wants to tell me who else was in the room having sex with [the victim] we would be happy to pursue that, but so far she doesn't know who that person is and therefore I don't have the ability to prosecute that person and so far [the victim] has not disclosed to us any other partners." We find no error in the trial court's denial of Mooney's motion asserting selective prosecution because of the state's failure to prosecute an unknown and unidentified black man.
(c) We also find no error in the trial court's denial of Mooney's motion as to his allegation that he was selectively prosecuted because the victim's boyfriend had had sex with the victim, but was not prosecuted. As to that allegation, Mooney has cited no arbitrary classification.
2. Mooney contends that the trial court erred by allowing the state to present the videotape as similar transaction evidence. He argues that the state failed to establish a proper purpose for the evidence. The trial court ruled that the videotape was admissible because it demonstrated Mooney's "proclivity to invite or bring females to a location to engage in sexual activity with [him] in exchange for crack cocaine" and "[his] intent, motive, bent of mind, course of conduct and lustful disposition during the occasions described by the alleged victim...."
In Simpson v. State,7 the Supreme Court of Georgia "put forth a clear and cogent rule" concerning the admission of sexually explicit material:
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.8
The videotape did not simply show that Mooney had a general interest in sexual activity. It showed Mooney engaged in oral sex, and it showed him offering drugs to women in exchange for oral sex, as he had offered drugs to the victim. Thus, the videotape showed Mooney's lustful disposition toward a particular sexual activity and his bent of mind to engage in that activity. The link between the videotape and the crimes charged in this case was Mooney's course of conduct — exchanging drugs for oral sex.
Although Mooney points out that he was not charged with engaging in drug offenses, pandering, or solicitation, prior independent acts need not have resulted in charges.9 What is required in this regard is that the state show that the accused committed the independent act.10 And the state met that requirement.
Mooney also points out that the videotape depicted no minors. But that dissimilarity did not render the videotape inadmissible. "[A] transaction does not have to mirror every detail in order to authorize its admission; rather, the proper focus is upon the similarities between the incidents and not upon the differences."11 12 The pertinent issue in this case is whether Mooney did or did not commit the charged sexual acts against the victim, and the videotape, which depicted Mooney's course of conduct in procuring sexual activity, is relevant to that issue as it corroborates the state's other evidence on that issue.
The trial court did not abuse its discretion in admitting the videotape.13
3. Mooney contends that the trial court erred in permitting the state to use the videotape as evidence against him because the...
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