Rary v. State

• Decision Date: 08 September 1997
• Docket Number: No. A97A1862,A97A1862
• Citation: Rary v. State, 491 S.E.2d 861, 228 Ga.App. 414 (Ga. App. 1997)
• Parties: , 97 FCDR 3367 RARY v. The STATE.
• Court: Georgia Court of Appeals

Page 861

491 S.E.2d 861

228 Ga.App. 414, 97 FCDR 3367

RARY v.The STATE.

No. A97A1862.

Court of Appeals of Georgia.

Sept. 8, 1997.

Neil A. Smith, Gainesville, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

JOHNSON, Judge.

A jury found David Vinson Rary guilty of two counts of child molestation involving his 12-year-old stepdaughter.He appeals from the judgments of conviction entered on that verdict.

1.Rary asserts the trial court erred in admitting evidence of two previous incidents involving other girls as similar transactions.

(a) In the first incident, which involved a 12-year-old friend of his stepdaughter who was spending the night at Rary's house, Rary argues that the evidence did not satisfy the second prong of Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649(1991), which requires that there be sufficient evidence to establish that the accused committed the independent offense.The girl testified at trial that after the girls had watched a movie, Rary told them to go to bed.After she had gone to sleep, she was awakened by someone grabbing her breast and massaging it.When she tried to turn over, she was "flipped back over" and her breast was grabbed again.When she told the man to stop, he got up and walked away.Although she did not look at the perpetrator's face because she was scared and confused, she was able to see a man walking away.She testified that Rary was the only male in the house.Despite Rary's own testimony that two other men were at the house on the night this incident occurred, "[a]bsolute proof is not required that a defendant committed the offense in a similar transaction....Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it."(Citations and punctuation omitted.)Hefner v. State, 224 Ga.App. 612, 613-614(2), 481 S.E.2d 599(1997).The trial court did not err in finding the evidence identifying Rary as the perpetrator of the similar transaction to be sufficient.

(b) The second incident admitted as a similar transaction involved the 19-year-old daughter of Rary's friend.Rary argues with regard to this incident that even if the victim's testimony that he grabbed her breasts while she was sleeping was true, the acts constitute a sexual battery, not child molestation, and therefore were dissimilar acts and should not have been admitted.We disagree.In Ryan v. State, 226 Ga.App. 180, 181(2), 486 S.E.2d 397(1997), in which a similar argument was raised, we noted that the crimes need not be identical."In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim's testimony.There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent crime and the offenses charged."(Citations and punctuation omitted; emphasis supplied.)Id.Here, the acts were identical to one of the charges in the indictment, it was only the age of the victim which determined how the behavior was categorized.The trial court did not err in admitting this event as a similar transaction.

2.Rary asserts the trial court erred in refusing to allow him to ask his ex-wife about a comment she allegedly made about not trusting one of his friends around their daughters.The state objected to the question on relevance grounds.Rary accepted the court's hypothesis that the evidence was being offered to negate the circumstantial evidence regarding the identity of the perpetrator of the incident discussed in Division 1(a)."The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be...