Wilson v. State
| Decision Date | 21 June 2021 |
| Docket Number | S20G1295 |
| Citation | 312 Ga. 174,860 S.E.2d 485 |
| Court | Georgia Supreme Court |
| Parties | WILSON v. The STATE. |
Michael Wayne Tarleton, Georgia Public Defender Council-Appellate Division, 270 Washington Street #5198, Atlanta, Georgia 30334, Veronica M. O'Grady, Clayton County Public Defender, 1590 Adamson Parkway, Suite 370, Morrow, Georgia 30260, Christina Rupp Cribbs, Georgia Innocence Project, 50 Hurt Plaza SE, Suite 350, Atlanta, Georgia 30303, for Appellant.
Christopher Allen Arnt, District Attorney, Lookout Mountain Judicial Circuit District Attorney's Office, P. O. Box 1025, LaFayette, Georgia 30728-1025, Megan Camille Gaither, Assistant District Attorney, Lookout Mountain Judicial Circuit District Attorney's Office, 7694 Nashville Street, Ringgold, Georgia 30736, for Appellee.
In 2015, a Catoosa County jury found Timothy John Wilson, Jr., guilty of child molestation, statutory rape, and two counts of incest involving his 13-year-old stepdaughter, B. O., and the Court of Appeals affirmed the judgment of conviction. See Wilson v. State , 354 Ga. App. 64, 840 S.E.2d 601 (2020). Wilson petitioned this Court for a writ of certiorari, which we granted to consider "[w]hether the trial court erred in concluding that evidence of alleged prior offenses of child molestation was admissible under OCGA § 24-4-414."1 As explained below, the Court of Appeals’ analysis of the trial court's decision to admit Wilson's prior offenses of child molestation under OCGA § 24-4-414 ("Rule 414") was flawed; however, its judgment was correct. Therefore, we affirm the judgment of the Court of Appeals.
In 2009, Wilson married B. O.’s mother and, shortly thereafter, the family moved to Catoosa County. In October 2014, when B. O. was 13 years old, Wilson began to molest her. B. O. testified that Wilson made her watch pornographic videos on his phone while he rubbed her back in a sexually suggestive manner that made her uncomfortable. B. O. testified that, between October and Christmas Eve 2014, Wilson pursued her sexually. He touched her buttocks and genitals with his hand both over and under her clothing; he then engaged her in acts of oral sodomy; he penetrated her vagina with a sex toy; and he had sexual intercourse with her.
B. O. testified that these acts occurred in the home while her mother was at work and Wilson was supposed to be supervising her. Wilson told B. O. that he had to have sex with her because her mother was too fat. B. O. was afraid of Wilson, but she eventually made an outcry to her mother after Wilson told her he was going to have sex with one of B. O.’s underage friends.
When B. O.’s mother reported Wilson's conduct to the police, Wilson fled. Wilson argued at trial that B. O. had fabricated her claim of molestation to retaliate against him because he had disciplined her harshly, including prohibiting her from attending a planned church retreat. As discussed in more detail below, the State also presented evidence that Wilson had previously molested his younger half-sister, P. W.2
1. Wilson contends that the evidence of his alleged prior offenses of child molestation involving P. W. did not satisfy the requirements for admission pursuant to Rule 414. Specifically, he argues that, because he was between the ages of 11 and 13 when the alleged prior offenses occurred, either he lacked the capacity to commit a crime under OCGA § 16-3-1,3 or the State was required to prove by a preponderance of the evidence that he had the capacity to form the criminal intent necessary to commit the prior offenses, but the State failed to make that showing. He also argues that the evidence of his prior offenses of child molestation failed to satisfy the relevancy requirement of Rule 414.
(a) The trial court's pretrial evidentiary ruling. The record shows that the State, pursuant to Rule 414 (b), gave the required pretrial notice of intent to present evidence of Wilson's prior offenses of child molestation. In its notice, the State asserted that, in 1986, when Wilson lived in Wyoming County, New York, he engaged in specific sexual acts involving P. W., who was then under the age of ten.
At a pretrial hearing, the prosecutor and defense counsel agreed to make a proffer as to what the evidence would show at trial. The prosecutor stated that P. W. and her mother would testify about the following: In 1986, Wilson and P. W. lived together in the same home. P. W. was about 5 or 6 years old when Wilson, her older half-brother, began to molest her. Over the course of a year, he engaged P. W. in acts of oral sodomy and sexual intercourse. The acts took place when P. W. and Wilson were unsupervised. When P. W. told her mother about the molestation, Wilson was removed from the home and placed in a juvenile facility. Wilson's counsel argued that Wilson was a child himself when the prior acts allegedly occurred. He stated that Wilson was born on July 29, 1973, and that he was between 11 and 13 years old when the prior offenses allegedly occurred.4 Defense counsel objected to the admission of the evidence under OCGA § 24-4-403 (" Rule 403"),5 arguing that Wilson's youth at the time of the prior offenses, along with other factors, diminished the probative value of the evidence such that it was substantially outweighed by the danger of unfair prejudice. Counsel did not argue, however, that proof of Wilson's legal capacity was required for admission under Rule 414, nor did he seek a ruling on the applicability of OCGA § 16-3-1 or the common-law defense of infancy.
Following the pretrial hearing, the trial court overruled Wilson's objection to the admission of the evidence, and entered a written order ruling that the evidence was admissible under Rules 414 and 403 as evidence of Wilson's motive and intent in the charged crimes. Before the evidence was admitted at trial, and again during the final charge, the trial court instructed the jury on the limited evidentiary purposes for which the jury could consider the prior offenses of child molestation. Wilson did not object to these instructions, nor did he request a jury instruction concerning the application of OCGA § 16-3-1 or the common-law infancy defense to the prior offenses of child molestation.
(b) The evidence of Wilson's prior offenses of child molestation presented at trial. The State presented evidence of the prior offenses of molestation through the testimony of P. W. and her mother. P. W. testified that Wilson molested her over the course of a year. She said that he molested her by touching her vagina with his hand. He also performed oral sex on her and had sexual intercourse with her when her parents were asleep, away from the house, or when he was supposed to be babysitting her. The molestation occasionally took place in the basement, and P. W. recalled an incident where Wilson left her alone and naked on a blanket while he, fully clothed, ran to catch the school bus when it arrived.
P. W.’s mother testified that P. W. was six or seven years old when the molestation occurred, recalling that the events transpired sometime after the family had moved to the Buffalo, New York area in 1985, when P. W. was in first grade. Both P. W. and her mother testified that they believed Wilson was 15 years old when the molestation occurred. P. W. testified that she believed Wilson was "significantly older" than she was, "by at least 5 years." Neither the State nor Wilson presented evidence at trial of Wilson's date of birth.
P. W. also testified that, shortly after her mother had warned her about people who might touch her inappropriately, using the phrases "good touch" and "bad touch," she asked Wilson whether what he was doing to her was "bad touch." He replied that "bad touch did not include brothers." When P. W. began telling her mother what Wilson had been doing, he interrupted and "tried to shut [P. W.] up." P. W. and her mother both testified that, after the police were informed of the molestation, Wilson was removed from the home and placed in a series of secure juvenile facilities.6
(c) Wilson's prior acts of child molestation constitute a crime, as required for admission under Rule 414. Wilson contends that the trial court should have excluded the evidence of his prior acts of child molestation because that evidence did not meet the requirements for admission under Rule 414. Specifically, he argues that the State failed to prove by a preponderance of the evidence that he was capable of forming the criminal intent required to commit an "offense of child molestation" because he was under the age of 13, which he asserts is the age of criminal responsibility in Georgia, when the prior acts of molestation allegedly occurred. See OCGA § 16-13-1. As recounted above, Wilson did not make this argument in the trial court, nor did he object on this ground when the evidence was admitted during trial. Thus, Wilson failed to preserve this claim of error for ordinary appellate review, and we therefore review the claim only for plain error. See OCGA § 24-1-103 (a), (d) ; Gates v. State , 298 Ga. 324, 327 (3), 781 S.E.2d 772 (2016).7
To establish plain error, Wilson must show the following:
First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
(Citations and punctuation omitted.) Gates , 298 Ga....
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