State v. McPherson

• Decision Date: 09 May 2017
• Docket Number: A17A0364
• Citation: 800 S.E.2d 389
• Parties: The STATE v. MCPHERSON
• Court: Georgia Court of Appeals

341 Ga.App. 871

800 S.E.2d 389

The STATE

v.MCPHERSON

A17A0364

Court of Appeals of Georgia.

May 9, 2017

Reconsideration Denied June 21, 2017

Joshua Bradley Smith, Henry Wayne Syms Jr., Rebecca Ashley Wright, for Appellant.

Kirk Emerson Gilliard, Augusta, Joseph Scott Key, McDonough, for Appellee.

Reese, Judge.

In this child molestation case, the State of Georgia appeals from an order excluding similar transaction evidence of prior acts of child molestation allegedly committed by the defendant, Dr. Kenneth McPherson. For the reasons set forth, infra, we reverse.

The record shows the following facts. After law enforcement officers received complaints that McPherson, a child psychologist, had molested some of his young patients, McPherson was arrested and indicted on seven counts of child molestation, OCGA § 16-6-4 (a) (1), and one count of sexual exploitation of a minor, OCGA § 16-12-100 (b) (8). Specifically, McPherson was charged with molesting four boys and one girl by, inter alia, showing them his penis, by touching the boys' penises, by having the female child take off all of her clothes except her underwear, and/or by showing them photographs of children and adults in various stages of undress. McPherson was also charged with possessing a photograph that depicted one of the boys engaging in sexually explicit conduct in the form of a "lewd exhibition" of his genitals.

The State filed a notice of intent to introduce evidence of acts of child molestation McPherson allegedly committed between 1979 and 1981, involving a boy under the age of 12. According to the State, the evidence was relevant and admissible because it was

"[e]vidence of other crimes, wrongs, or acts" within the meaning of OCGA § 24-4-404 (b), and generally fit[ ] within the definition of "the accused's commission of another offense of child molestation" within the meaning of OCGA § 24-4-414 (a), and [was] relevant to prove [McPherson's]

"intent ... plan, knowledge, motive ... [and] absence of mistake or accident" as permitted by OCGA § 24-4-404 (b).

McPherson filed a motion to exclude the evidence, arguing that the alleged similar transaction was too remote in time, and that the State's notice of intent was not timely filed.

During a hearing on the motion, the prosecutor told the court that, at some point after the media publicized the case against McPherson, a man called the district attorney's office and reported that he had been molested by McPherson several years earlier, when he was in elementary school. According to the prosecutor who was later assigned to the case, she first learned about the man's phone call while going through a box containing a "voluminous" amount of evidence on February 26, 2016, a few days before trial was scheduled to begin on March 7, 2016. She filed a notice of intent to present the similar transaction evidence, and then interviewed the man in person in order to get more information. During the interview, the man stated that the acts were committed between 1979 and 1981, and that his family knew McPherson, who was between 22 and 24 years old at that time, through the family's church. McPherson often brought the boy and his brother gifts, took them to football games, and had them stay overnight with him. During these visits, McPherson let the boys know that he had an erection, joking about it and exposing his penis to them. According to the man, McPherson also made him expose his penis and climbed into bed with him, rubbing his erection against the boy's back.

The prosecutor argued that the similar transactions were similar to the crimes at issue, because McPherson was supervising the children at the time the conduct took place, he offered the children gifts to gain their affection and to "groom" them, and his conduct toward the boys was almost exactly like his conduct toward the children in the instant case. She argued, therefore, that evidence of McPherson's prior conduct demonstrated his sexual or lustful disposition toward children in that age range and, as a result, was admissible.

Following the hearing, the trial court granted the motion to exclude, but did not provide a reason for its decision or the basis for its finding that the evidence was inadmissible in this case. This appeal followed.¹

The Georgia General Assembly adopted a new Evidence Code in 2011, and the new Code applies in this case.² As part of the Code's revision, the General Assembly enacted a new statute, OCGA § 24-4-414 (a), which 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." Given the express direction that evidence of prior sexual offenses committed by the defendant "shall be admissible," OCGA § 24-4-414 (a) and two related statutes, OCGA §§ 24-4-413 (a) and 24-4-415 (a),³ have been construed as creating "a rule of inclusion, with a strong presumption in favor of admissibility."⁴ Further, evidence admitted under these statutes is not subject to the limitations of OCGA § 24-4-404 (b),⁵ but, instead, "may be considered for its bearing on any matter to which it is relevant," including whether the evidence demonstrates that the defendant had a propensity to commit certain sexual offenses.⁶ As this Court has held, under OCGA § 24-4-414 (a),

showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of

that conduct[. Thus, evidence] that a defendant engaged in child molestation in the past is admissible to prove that the defendant has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.⁷

Even so, evidence that is admissible under these statutes may be excluded if the trial court concludes that "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]"⁸ The determination as to whether to exclude evidence for any of these reasons "calls for a common sense assessment of all the circumstances surrounding the [previous] offense, including prosecutorial need, overall similarity between the [previous] act and the charged offense, as well as temporal remoteness."⁹ Indeed, exclusion of otherwise probative and relevant evidence under OCGA § 24-4-403"is an extraordinary remedy which should be used only sparingly."¹⁰ Ultimately, a trial court's decision on whether to admit evidence under one of these statutes "will be overturned only where there is a clear abuse of discretion."¹¹ With these guiding principles in mind, we turn now to the specific claims of error on appeal.

1. The State contends that the trial court abused its discretion in excluding the evidence of prior acts of child molestation allegedly committed by McPherson, arguing that OCGA § 24-4-414 (a) specifically states that such evidence "shall be admissible." The State also argues that the evidence is necessary to demonstrate McPherson's intent, i.e., that he committed the acts "with the intent to arouse or satisfy the sexual desires of either the child [ren] or [himself]."¹² According to the State, it expects McPherson to claim at trial that the conduct for which he was charged was part of his treatment of the children and occurred during "benign" therapy sessions.¹³ In addition, the State argues that the similar transaction evidence is necessary to show that McPherson committed similar acts with a young child long before he became a child psychologist and while he and the child were in a social, not therapeutic, setting.

Pretermitting whether the State raised these specific arguments about McPherson's anticipated defenses in the trial court, we find no basis in the record to support the "extraordinary remedy"¹⁴ of excluding this evidence as unduly prejudicial under OCGA § 24-4-403, particularly given the strong statutory presumption of admissibility and in light of the close similarities between the crimes at issue.¹⁵ There has been no showing that the evidence would confuse the issues, mislead the jury, waste time, or be cumulative of other evidence, or that the probative value of the evidence would otherwise be "substantially outweighed" by its prejudicial impact.¹⁶ As noted above, the prejudicial impact of evidence of similar transactions in child molestation cases is generally considered to be outweighed by its probative value in demonstrating an accused's disposition toward committing a molestation.¹⁷ In fact, when the defendant's intent in committing certain acts is a strongly contested issue at trial, as is the case here, evidence that he committed prior similar acts tends to demonstrate his intent and, thus, has more probative value, which further justifies its admission.¹⁸

Further, the fact that the prior acts were committed about 35 years earlier does not automatically require their exclusion.¹⁹

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 [Federal Rules of Evidence] Rule 403 nor any analogous Rule provides any bright-line rule as to how old is too old.²⁰

In this case, there has been no showing that the potential witness' memory about the alleged incidents is either impaired or patently unreliable. Moreover, this Court has recently found no abuse of discretion in the admission of similar transactions that occurred about 44 years before the crimes charged.²¹ In fact, even before the General Assembly adopted the more liberal "rule of inclusion" for evidence of prior acts of child molestation,²² Georgia's ...