State v. Ashley

• Decision Date: 08 July 2016
• Docket Number: S15G1207
• Citation: 788 S.E.2d 796,299 Ga. 450
• Parties: The State v. Ashley.
• Court: Georgia Supreme Court

299 Ga. 450

788 S.E.2d 796

The State

v.Ashley.

S15G1207

Supreme Court of Georgia.

Decided: July 8, 2016

Emily Kathleen Richardson, A.D.A., Brian Keith Fortner, District Attorney, Douglas County District Attorney's Office, 8700 Hospital Drive, 2nd Floor, Douglasville, Georgia 30134, for Appellant.

D. Victor Reynolds, District Attorney, Michael Scott Carlson, Deputy Chief A.D.A., John Richard Edwards, A.D.A., John Stuart Melvin, A.D.A., Cobb County District Attorney's Office, 70 Haynes Street, Marietta, Georgia 30090–9638, Donald Paul Geary, A.D.A., Cobb County District Attorney's Office, 700 DeKalb Couty Courthouse, 556 North McDonough Street, Decatur, Georgia 30030, for Amicus Appellant.

Cynthia Wright Harrison, Harrison Law Firm, LLC, 50 Hurt Plaza, Suite 1210, Atlanta, Georgia 30303, for Appellee.

NAHMIAS

, Justice.

In 2012, Thad Lee Ashley was convicted of kidnapping a seven-year-old girl, attempting to kidnap her three-year-old sister, and criminal trespass at the trailer park where his father lived. At trial, the jury heard evidence of these crimes as well as evidence of three earlier incidents at the trailer park's pool when Ashley had behaved inappropriately towards young children. The trial court admitted the evidence of these other incidents as similar transaction evidence under Georgia's old Evidence Code, which applied at the time of Ashley's trial, for the purpose of showing his intent when he engaged in the acts alleged in the indictment and his desires towards young children.

Ashley appealed, contending among other things that the trial court abused its discretion when it admitted the similar transaction evidence. In a 4–3 decision, the Court of Appeals agreed and reversed Ashley's convictions on that ground. See Ashley v. State , 331 Ga.App. 794, 794, 771 S.E.2d 462 (2015)

. This Court granted the State's petition for certiorari to consider whether the Court of Appeals erred in that respect. We conclude that it did, so we reverse that portion of the Court of Appeals' judgment and remand the case with direction to consider Ashley's other challenges to his convictions.

1. (a) Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On July 3, 2011, Ashley, who was then 37 years old, was served with a criminal trespass warning prohibiting him from returning to the trailer park in Douglas County where his father lived. Despite the warning, Ashley continued to live with his father, who had a forest green minivan.

Two months later, on Sunday, September 4, 2011, a woman who lived in the trailer park on a different street than Ashley's father was preparing to take her four daughters, ages seven and under, and her infant nephew to church in her maroon minivan. The woman was on her front porch, locking the door while holding one of the girls, and seven-year-old K.L. was sitting on the floor of the minivan with the sliding door on the driver's side open after helping her three-year-old sister B.L. and the other children into their seats. Ashley walked up to the minivan, reached inside, grabbed K.L. by the wrist, pulled her out of the minivan, and began dragging her up the street as she screamed and tried to get away. K.L. managed to break free from Ashley and ran to her mother, shaking and crying. The woman yelled at Ashley and saw him “touching himself” as he reached into her minivan a second time and tried to grab B.L., who scrambled away from him. The woman threatened to call the police, and Ashley walked off in the direction of his father's trailer, claiming that he had been confused. Ashley told his father, “I think I just did something wrong.” His father asked him what he meant, and Ashley said, “I tried to get them kids out of that van,” which he claimed he mistook for his father's minivan.

A sheriff's deputy responded to the scene and spoke with K.L., her mother, and the property manager's brother before talking to Ashley at his father's trailer. Ashley claimed that he knew one of the girls in the minivan and thought the children were in his father's minivan. Ashley denied touching any of the children, claiming instead that he merely got into the minivan with them and sat in the driver's seat. Ashley also claimed that he did not drink or use drugs. The deputy arrested Ashley for criminal trespass.

Later that day and in the days following, Ashley gave three videotaped interviews after waiving his Miranda rights. In the first interview, he claimed that he saw a woman driving what he thought was his father's minivan. He said there were several children in the minivan and that he sat in the minivan and chatted and played with them. He also said that when he was getting ready to leave, a little girl stepped out of the minivan, and he grabbed her by the arm to keep her from falling.

In the second interview, Ashley denied getting into the minivan and said that he had “absolutely not” touched any of the children. He acknowledged that the minivan that the children were in and his father's minivan were different colors, that he was not color-blind, and that his father's minivan did not have a specific braided trim that the minivan that the children were in had.

In the final interview, Ashley said that he was a former heroin addict but had not used heroin in the previous nine months. He claimed that on the morning of the minivan incident, which was a Sunday, he had gone to a methadone

clinic. (The methadone clinic actually was not open on Sundays.) Ashley said that he took four Xanax pills in addition to the methadone and claimed that as a result, he could not remember anything at all about the incident with the children in the minivan. However, later in the interview, he said that he remembered seeing some children in the minivan whom he recognized from the pool or from seeing them on the street and that he remembered the girls' mother yelling at him from the porch and saying that she had called the police. Ashley also claimed that he then waited there for law enforcement to arrive.

(b) On October 28, 2011, Ashley was indicted for the kidnapping of K.L., the attempted kidnapping of B.L., entering an automobile with intent to commit a felony, and criminal trespass after receiving notice that entry onto the trailer park property was forbidden. On June 1, 2012, the State filed a notice of intent to present similar transaction evidence regarding three incidents involving Ashley at the trailer park pool during the summer of 2011: (1) an occasion when the assistant property manager and another woman saw Ashley staring inappropriately at young girls ranging in age from five to ten years old; (2) Ashley's repeated touching of a ten-year-old girl on her torso just below her breasts when the girl's mother went inside for a few minutes to use the restroom¹ ; and (3) an incident when the police were called after the assistant property manager and other adults saw Ashley repeatedly squirting a five-year-old boy with a powerful water gun so hard at close range that the boy was crying and had red marks on his skin. It was these incidents that led the trailer park to seek the trespass notice against Ashley.

Ashley's trial started on June 11, 2012, and thus was conducted under Georgia's old Evidence Code.² At a hearing before opening statements, the trial court ruled that evidence of the three pool incidents was admissible as similar transaction evidence.³ The court found that the evidence was being offered for the proper purpose of showing Ashley's intent during the physical acts alleged in the indictment and his desires directed towards young children, noting that Ashley made his intent an issue by claiming in his interviews with law enforcement and his arguments to the court that what happened on September 4, 2011, was a mistake or accident and that he was on drugs and thought that the minivan with the children in it was his father's minivan. The court also found that the State proffered enough evidence for the jury to conclude that the incidents at the pool occurred. Finally, the court found that the pool incidents, which involved young children in the same trailer park just a few months before September 2011, were sufficiently similar to the crimes charged that proof of those incidents tended to prove the charges against Ashley.⁴

At trial, Ashley testified on direct examination that he only vaguely remembered the minivan incident, because when he had left his father's trailer a few minutes before, he “knew [he] was intoxicated, more so than [he] had ever been.” Ashley repeatedly testified that he did not remember getting in the minivan or touching the children and that he would have remembered it if he had done so. He also claimed that he did not remember saying the things that he told the investigating officers during the three recorded interviews, which had been played for the jury. But Ashley also testified specifically on direct and cross-examination about where he was going before the incident, the route he took, the weather at the time, thinking that the maroon minivan with the children in it was his father's van rather than the same maroon minivan that he had seen around the trailer park before, the scared look on the mother's face when she was yelling at him, the moment he noticed the color of the van and realized that it was not his father's van, his emotional response to this realization, what he said to the girls' mother, what K.L. was saying to her mother, and how quickly K.L. calmed down. He also claimed to remember pointing towards his father's trailer to let the mother know where he would be when law enforcement arrived. On cross-examination, Ashley asserted that the reason that he was barred from the trailer park was because he upset the assistant property manager, who then orchestrated all the complaints about his behavior at the pool. Ashley said that as far as he was concerned, he had “not really offended anybody, except for the little girls in the van, probably.”

On June...