Wilson v. State

• Decision Date: 04 March 2020
• Docket Number: A19A2174
• Citation: 840 S.E.2d 601,354 Ga.App. 64
• Parties: WILSON v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 64

840 S.E.2d 601

WILSON

v.The STATE.

A19A2174

Court of Appeals of Georgia.

March 4, 2020

Christina Marie Cribbs, Veronica Margaret O'Grady, for Appellant.

Herbert E. Franklin, La Fayette, for Appellee.

Reese, Judge.

Timothy John Wilson, Jr., ("the Appellant") appeals from the denial of his amended motion for new trial following his conviction for incest, statutory rape, and child molestation in the Superior Court of Catoosa County.¹ The Appellant contends that the trial court abused its discretion in allowing evidence regarding a prior offense; that he was denied the effective assistance of counsel; and that the trial court erred in failing to merge the child molestation and statutory rape convictions for sentencing purposes. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict² , the record shows the following facts. The Appellant married B. O.’s mother ("Wilson") in July 2009. The Appellant moved in with Wilson and her minor daughter, B. O., who was eight years old at the time. Five years later, in October 2014 when B. O. was 13 years old, the Appellant began to molest her. The Appellant initially made B. O. watch pornographic videos with him while B. O.’s mother was at work. The Appellant rubbed B. O.’s back in a sexually suggestive manner and touched B. O.’s genitals both over and under her clothing. At some point, the Appellant had sexual intercourse with B. O. The molestation lasted from October 2014 to December 2014, with the last sexual act occurring on Christmas Eve 2014.

B. O. disclosed the molestation to her mother on January 31, 2015, prompting her mother to call the police. A forensic medical examination by a Sexual Assault Nurse Examiner ("SANE") did not reveal any injuries, tears, or abrasions, but the nurse did note that B. O.’s hymenal opening was larger than expected for a child of her age and that there was less hymenal tissue than expected. The SANE nurse further explained that both of these conditions could be indicative of some kind of sexual activity.

Throughout the course of the investigation into B. O.’s outcry, the State received information regarding a previous instance of child molestation involving the Appellant and his younger half-sister, P. W. P. W., who was interviewed via phone by investigators, explained that the Appellant had touched her inappropriately, performed oral sodomy upon her, and had sexual intercourse with her in upstate New York shortly after the Appellant moved in with his father and step-mother between 1984 and 1985.

The Appellant was initially indicted for 19 various sexual offenses involving his 13-year-old step-daughter, B. O., and one of B. O.’s friends, 13-year-old K. D. The State filed a notice of intent to offer evidence of the previous incidents pursuant to OCGA § 24-4-413 and OCGA § 24-4-414 ("Rule 413" and "Rule 414"). Although defense counsel opposed admitting the evidence, the trial court ultimately agreed to admit the extrinsic act evidence. The jury found the Appellant guilty of two counts of incest, one count of statutory rape, and one count of child molestation. The Appellant filed an amended motion for a new trial. The trial court denied the motion for new trial, but granted the Appellant a new sentencing hearing. We dismissed as premature the Appellant’s appeal from this order as the trial court had not yet resolved the Appellant’s sentencing challenges. The trial court resentenced the Appellant, imposing a split sentence, and this appeal followed.

"The admission of evidence is a matter which rests largely within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion."³ Similarly, "[w]e will not disturb a trial court’s determination that similar transaction evidence is admissible absent an abuse of discretion."⁴ With these guiding principles in mind, we turn now to Appellant’s specific claims of error.

1. The Appellant contends that the trial court abused its discretion by improperly admitting evidence related to a prior offense of child molestation. We disagree.

Subsection (a) of Rule 413 provides: "In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant."⁵ Additionally, Rule 414 provides in part: "[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."⁶ Furthermore, in sexual assault and child molestation cases, both Rules 413 and 414 supersede the provisions of OCGA § 24-4-404,⁷ which typically prevents the inclusion of prior bad acts.⁸ Rules 413 and 414 "create[s] a rule of inclusion, with a strong presumption in favor of admissibility, and the State can seek to admit evidence under these provisions for any relevant purpose, including propensity."⁹ Moreover,

[u]nder Rule 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.¹⁰

(a) The Appellant argues that the trial court should have excluded the prior instance of child molestation, because it failed to meet the

statutory requirements under Rule 414 and the Rule 403 balancing test.

Before admitting evidence of similar, prior crimes,

the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.¹¹

The State filed a notice under Rule 413 and Rule 414 seeking the trial court’s ruling that this prior act could be admitted at trial given that the indictment charged him with numerous counts of sexual offenses against his minor step-daughter and his step-daughter’s friend. After a hearing, the trial court ordered that the evidence could be admitted by the State at trial. Specifically, the trial court stated that the "proffered evidence’s probative value is significant and substantial, and that the probative value of the offered evidence is not substantially outweighed by undue prejudice, and is not other subject to being excluded by OCGA § 24-4-403." The evidence presented by the State at trial included testimony from P. W., who testified that the Appellant had sexually molested her during her childhood. Additionally, in its order denying Appellant’s motion for new trial, the trial court stated that the evidence

was relevant to an issue other than the Defendant’s bad character, to wit: intent and motive. The State of Georgia produced sufficient evidence to authorize the jury to find that the accused committed the other acts. The probative value of the evidence presented was high, and was therefore not substantially outweighed by its unfair prejudice, to include but not being limited to, any issue of said evidence’s temporal remoteness.

The Appellant argues that the evidence presented at trial failed to show that the prior instance of child molestation was even a crime, in that he was perhaps under the age of accountability, and therefore incapable of forming the requisite intent. We note that the Appellant was between the ages of 11 to 13 years old at the time of the prior child molestation incident,¹² but it is unclear because witnesses were unsure of when P. W.’s disclosure occurred. Although the Appellant’s exact age at the time of the prior instance of child molestation is unclear, "[a] trial court should consider a defendant’s youth at the time of a similar transaction when deciding whether to admit such evidence."¹³ Additionally, regardless of the Appellant’s age at the time, witnesses testified that the Appellant was sent to a juvenile detention facility in New York, indicating some level of responsibility for the prior instance of child molestation.

Accordingly, the trial court did not abuse its discretion in concluding that the evidence of the prior instance of child molestation involving P. W. was admissible for a relevant purpose under Rule 414 (a).¹⁴

(b) The Appellant also contends that the prior instance of child molestation was inadmissible, because it was irrelevant to any material fact.

The Appellant argues that the evidence of prior acts did not show his motive or intent and the temporal remoteness of the prior acts of child molestation combined to show that the trial court abused its discretion.

OCGA § 24-4-401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Moreover,

evidence that an accused committed an intentional act generally is relevant to show—the evidence, in other words, has some tendency to make more or less probable—that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances.¹⁵

OCGA § 24-4-404 (b) ("Rule 404 (b)") provides, in part

evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity,

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