Dean v. State

742 S.E.2d 758, 321 Ga. App. 731, 2013 Fulton County D. Rep. 1521, 2013 WL 1878910, 2013 Ga. App. LEXIS 392
CourtCourt of Appeals of Georgia
DecidedMay 7, 2013
DocketA13A0195
StatusPublished
Cited by14 cases

This text of 742 S.E.2d 758 (Dean v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean v. State, 742 S.E.2d 758, 321 Ga. App. 731, 2013 Fulton County D. Rep. 1521, 2013 WL 1878910, 2013 Ga. App. LEXIS 392 (Ga. Ct. App. 2013).

Opinion

Boggs, Judge.

Anthony Scott Dean appeals from his conviction for two counts of child molestation. He contends that the trial court erred by allowing [732]*732the introduction of similar transaction evidence and by denying his request to impeach the victim with a specific prior bad act. For the reasons explained below, we affirm.

1. Dean contends that the trial court erred by admitting evidence of similar transactions. Under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), the State must show that (1) it “seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility”; (2) “there is sufficient evidence to establish that the accused committed the independent offense or act”; and (3) “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citation, punctuation and footnotes omitted.) Id. at 642 (2) (b). “When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citations, punctuation and footnote omitted.) Ware v. State, 297 Ga. App. 400, 402 (2) (677 SE2d 423) (2009). And

[w]hen reviewing the trial court’s factual findings regarding whether the [S]tate satisfied the three-prong test mandated by Williams, we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012).

In this case, the record shows that the victim and her four siblings were adopted from Guatemala by Dean and his wife when the victim was 13 years old. The victim testified that when she was fifteen years old, Dean came into her room one night when she and her younger sisters were sleeping, lay down beside her, and touched her between her legs and on her genitalia. According to the victim, this only happened one time. On another occasion, Dean came into the bathroom adjacent to the victim’s closet wearing nothing but a towel. The victim was in her closet and could see Dean’s penis because the towel was open, and he told her that he wanted to have sex with her.

Over Dean’s objection, the State presented evidence of similar transactions involving the victim’s older sister. A woman who attended church with the Deans testified that she was fluent in Spanish and spent time with the victim and her sisters after their adoption. She testified that in a visit with the girls at her home, the victim’s older [733]*733sister told her that Dean was touching her inappropriately during the night. The victim testified that Dean treated her older sister “[l]ike she was his girlfriend or his wife.” She saw Dean kiss her sister on the mouth like a husband would kiss his wife, not as a father would kiss his daughter. The victim’s younger sister testified that the victim’s older sister would sometimes sleep with her in her bed instead of her own room. She saw Dean come into the room late at night after everyone else was asleep and get into the bed beside her older sister and kiss her on the mouth like a husband kisses his wife.

The older sister testified and denied any inappropriate conduct by Dean. She claimed that she told a sheriff in a telephone call that Dean “tried” to have sex with her only because she was tired of receiving repeated phone calls from authorities and wanted to be left alone. Dean also denied all allegations of molestation against him.

Over Dean’s objection, the State presented evidence of similar transactions involving 12-year-old twins that occurred in June 1984 when Dean was 14 years old. During an overnight birthday party at their home, one of the twins awoke late at night to find her hands behind her back and Dean manipulating her hands to massage his genitals. When she confronted Dean, he snapped his underpants back up and told her he must have fallen off the couch in his sleep. The other twin sister testified that she awoke the same night to find Dean beside her with his hands on her breasts. He took her hand and rubbed it around on his penis until she felt a liquid land on her. The sisters denied consenting to Dean’s conduct that evening. The twins’ brother later told their father what Dean had done, and their father had a discussion with Dean’s parents. The State presented no documentary evidence of Dean’s conduct that evening.

(a) Dean claims that the trial court erred by allowing evidence of the similar transaction involving the victim’s older sister. He asserts that it should not have been admitted because the State presented insufficient evidence that he committed the alleged acts because both he and the older sister denied the alleged conduct at trial. We find no merit in this assertion.

“Absolute proof is not required that a defendant committed the offense in a similar transaction.” (Citations and punctuation omitted.) Gunter v. State, 215 Ga. App. 517, 518 (1) (451 SE2d 108) (1994). Instead, the State is required to prove that Dean committed the prior act by a preponderance of the evidence. Freeman v. State, 268 Ga. 185, 187-188 (4) (486 SE2d 348) (1997); Jennings v. State, 277 Ga. App. 159, 162 (3) (626 SE2d 155) (2006). Aconviction for the prior act is not required, and it may be proven by circumstantial evidence. Lloyd v. State, 259 Ga. App. 636, 640 (2), n. 12 (577 SE2d 854) (2003) (conviction not required); Druitt v. State, 225 Ga. App. 150, 151 (1), (2) [734]*734(483 SE2d 117) (1997) (circumstantial evidence will suffice). In this case, the State met its burden by presenting two witnesses who testified that they saw Dean commit similar acts with the victim’s older sister.

(b) Dean contends that the trial court erred by admitting evidence of his conduct with the twins in 1984 because it was too remote in time and took place when he was a minor only two years older than the twins. Dean correctly asserts that when a similar transaction is remote in time,

additional considerations are required. As a general rule, the lapse of time generally goes to the weight and credibility of the evidence, not to its admissibility. Nonetheless, where similar transactions are particularly remote because they were committed decades in the past, the passage of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, although it is not wholly determinative. This factor takes on heightened significance when the similar transaction evidence is comprised of alleged acts for which there is no prior record of their occurrence. Although a similar transaction may have been committed many years in the past, any prejudice from its age may nonetheless be outweighed by its probative value, depending on the particular facts of each case and the purpose for which the similar transaction is being offered.

(Citations and punctuation omitted.) Pareja v. State, 286 Ga. 117, 119-120 (686 SE2d 232) (2009).

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742 S.E.2d 758, 321 Ga. App. 731, 2013 Fulton County D. Rep. 1521, 2013 WL 1878910, 2013 Ga. App. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-state-gactapp-2013.