FOURTH DIVISION DILLARD, P. J., RICKMAN and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
August 4, 2023
In the Court of Appeals of Georgia A23A1154. MILLER v. THE STATE.
RICKMAN, Judge.
Following a jury trial, Jonathan William Miller was convicted of two counts
of child molestation. On appeal, Miller argues that the jury’s verdict is contrary to the
evidence and the principles of justice and equity and is decidedly against the strong
weight of the evidence. He also contends that the trial court erred by admitting into
evidence his 2003 conviction for child molestation and statutory rape and by allowing
a detective to impermissibly bolster the victim’s testimony.
Viewed in the light most favorable to the verdict, see Jackson v. Virginia, 443
U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence presented at trial showed
that the victim was Miller’s step-daughter. From September 16, 2019, to December 3, 2019, Miller lived with the victim, who was 12 years old, and other family
members.
A detective testified that he received an allegation concerning inappropriate
touching between Miller and the victim. He contacted the Children’s Advocacy
Center and scheduled a forensic interview for the victim. At the victim’s initial
forensic interview, the victim did not disclose any inappropriate sexual conduct and
denied that Miller ever touched her inappropriately.
A forensic interviewer testified that, during a second interview, the victim told
her that she had lied in her first interview. In the second interview, the victim
disclosed that Miller had touched her vaginal area, buttocks, and breasts with his
hand, and touched her buttocks and vagina with his penis. A video of the victim’s
second forensic interview was played for the jury.
The victim, who was 14 years old at the time of trial, testified that the first time
she went to the Children’s Advocacy Center, she told the forensic interviewer that
Miller never did anything to her because Miller told her to lie. She testified that
everything she told the forensic interviewer in the second forensic interview was true.
A sexual assault nurse examiner at the Children’s Advocacy Center testified
that she conducted a forensic examination of the victim. The victim disclosed to the
2 sexual assault nurse examiner that Miller had touched her chest area, her vaginal area,
and her anal area, but the results of the victim’s physical examination were
inconclusive.
Miller was charged with two counts of child molestation and was found guilty
of both counts. He filed a motion for new trial which was denied by the trial court.
This appeal followed.
1. Miller contends that he should be granted a new trial because the jury’s
verdicts are contrary to the evidence and the principles of justice and equity and are
against the strong weight of the evidence.
“In any case when the verdict of a jury is found contrary to evidence and the
principles of justice and equity, the judge presiding may grant a new trial before
another jury.” OCGA § 5-5-20. “The presiding judge may exercise a sound discretion
in granting or refusing new trials in cases where the verdict may be decidedly and
strongly against the weight of the evidence even though there may appear to be some
slight evidence in favor of the finding.” OCGA § 5-5-21. “When properly raised in
a timely motion, these grounds for a new trial — commonly known as the ‘general
grounds’ — require the trial judge to exercise a broad discretion to sit as a ‘thirteenth
juror.’” (Citation and punctuation omitted.) Massey v. State, 346 Ga. App. 233, 235
3 (2) (816 SE2d 100) (2018). “Trial courts have discretion to grant a new trial on [the
general grounds] but appellate courts do not.” Plez v. State, 300 Ga. 505, 507 (1) n.
2 (796 SE2d 704) (2017). “Our review is limited to the legal sufficiency of the
evidence.” Id. “Indeed, even when asked to review a trial court’s refusal to grant a
new trial on the general grounds, this Court must review the case under the standard
set forth in Jackson v. Virginia.” (Citation and punctuation omitted.) Id.
The indictment in this case charged Miller with child molestation in that he did
“commit an immoral and indecent act to [the victim], a child under the age of sixteen
years, with the intent to arouse and satisfy the sexual desires of said accused by
touching the vaginal area of said child[.]” See OCGA § 16-6-4 (a) (1) (“A person
commits the offense of child molestation when such person . . . [d]oes an immoral or
indecent act to or in the presence of or with any child under the age of 16 years with
the intent to arouse or satisfy the sexual desires of either the child or the person[.]”).
Miller was also charged with child molestation in that he did “commit an immoral and
indecent act to [the victim], a child under the age of sixteen years, with the intent to
arouse and satisfy the sexual desires of said accused by touching the buttock of said
child[.]”
4 The forensic interviewer’s testimony that the victim disclosed in her second
interview that Miller had touched the victim’s vaginal area and buttocks and the
victim’s testimony that everything she told the forensic interviewer in the second
interview was true were sufficient to support Miller’s convictions for child
molestation. See Smith v. State, 320 Ga. App. 408, 410-411 (1) (a) (740 SE2d 174)
(2013) (holding that there was sufficient evidence to support defendant’s conviction
for child molestation based upon the victim’s testimony). Because the evidence was
sufficient to support his convictions under Jackson v. Virginia, this claim of error is
without merit.
2. Miller argues that the trial court erred by admitting his 2003 prior conviction
for child molestation and statutory rape under OCGA § 24-4-414.
“In 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.” OCGA § 24-4-414 (a). OCGA § 24-4-414 “is a rule of
inclusion, with a strong presumption in favor of admissibility.” (Citation and
punctuation omitted.) State v. Palacio-Gregorio, 361 Ga. App. 339, 343 (2) (a) (862
SE2d 605) (2021). “[T]he State can seek to admit evidence under [OCGA § 24-4-414]
5 for any relevant purpose, including propensity.” (Citation and punctuation omitted.)
Dixon v. State, 350 Ga. App. 211, 213 (1) (828 SE2d 427) (2019). “Nevertheless, the
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION DILLARD, P. J., RICKMAN and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
August 4, 2023
In the Court of Appeals of Georgia A23A1154. MILLER v. THE STATE.
RICKMAN, Judge.
Following a jury trial, Jonathan William Miller was convicted of two counts
of child molestation. On appeal, Miller argues that the jury’s verdict is contrary to the
evidence and the principles of justice and equity and is decidedly against the strong
weight of the evidence. He also contends that the trial court erred by admitting into
evidence his 2003 conviction for child molestation and statutory rape and by allowing
a detective to impermissibly bolster the victim’s testimony.
Viewed in the light most favorable to the verdict, see Jackson v. Virginia, 443
U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence presented at trial showed
that the victim was Miller’s step-daughter. From September 16, 2019, to December 3, 2019, Miller lived with the victim, who was 12 years old, and other family
members.
A detective testified that he received an allegation concerning inappropriate
touching between Miller and the victim. He contacted the Children’s Advocacy
Center and scheduled a forensic interview for the victim. At the victim’s initial
forensic interview, the victim did not disclose any inappropriate sexual conduct and
denied that Miller ever touched her inappropriately.
A forensic interviewer testified that, during a second interview, the victim told
her that she had lied in her first interview. In the second interview, the victim
disclosed that Miller had touched her vaginal area, buttocks, and breasts with his
hand, and touched her buttocks and vagina with his penis. A video of the victim’s
second forensic interview was played for the jury.
The victim, who was 14 years old at the time of trial, testified that the first time
she went to the Children’s Advocacy Center, she told the forensic interviewer that
Miller never did anything to her because Miller told her to lie. She testified that
everything she told the forensic interviewer in the second forensic interview was true.
A sexual assault nurse examiner at the Children’s Advocacy Center testified
that she conducted a forensic examination of the victim. The victim disclosed to the
2 sexual assault nurse examiner that Miller had touched her chest area, her vaginal area,
and her anal area, but the results of the victim’s physical examination were
inconclusive.
Miller was charged with two counts of child molestation and was found guilty
of both counts. He filed a motion for new trial which was denied by the trial court.
This appeal followed.
1. Miller contends that he should be granted a new trial because the jury’s
verdicts are contrary to the evidence and the principles of justice and equity and are
against the strong weight of the evidence.
“In any case when the verdict of a jury is found contrary to evidence and the
principles of justice and equity, the judge presiding may grant a new trial before
another jury.” OCGA § 5-5-20. “The presiding judge may exercise a sound discretion
in granting or refusing new trials in cases where the verdict may be decidedly and
strongly against the weight of the evidence even though there may appear to be some
slight evidence in favor of the finding.” OCGA § 5-5-21. “When properly raised in
a timely motion, these grounds for a new trial — commonly known as the ‘general
grounds’ — require the trial judge to exercise a broad discretion to sit as a ‘thirteenth
juror.’” (Citation and punctuation omitted.) Massey v. State, 346 Ga. App. 233, 235
3 (2) (816 SE2d 100) (2018). “Trial courts have discretion to grant a new trial on [the
general grounds] but appellate courts do not.” Plez v. State, 300 Ga. 505, 507 (1) n.
2 (796 SE2d 704) (2017). “Our review is limited to the legal sufficiency of the
evidence.” Id. “Indeed, even when asked to review a trial court’s refusal to grant a
new trial on the general grounds, this Court must review the case under the standard
set forth in Jackson v. Virginia.” (Citation and punctuation omitted.) Id.
The indictment in this case charged Miller with child molestation in that he did
“commit an immoral and indecent act to [the victim], a child under the age of sixteen
years, with the intent to arouse and satisfy the sexual desires of said accused by
touching the vaginal area of said child[.]” See OCGA § 16-6-4 (a) (1) (“A person
commits the offense of child molestation when such person . . . [d]oes an immoral or
indecent act to or in the presence of or with any child under the age of 16 years with
the intent to arouse or satisfy the sexual desires of either the child or the person[.]”).
Miller was also charged with child molestation in that he did “commit an immoral and
indecent act to [the victim], a child under the age of sixteen years, with the intent to
arouse and satisfy the sexual desires of said accused by touching the buttock of said
child[.]”
4 The forensic interviewer’s testimony that the victim disclosed in her second
interview that Miller had touched the victim’s vaginal area and buttocks and the
victim’s testimony that everything she told the forensic interviewer in the second
interview was true were sufficient to support Miller’s convictions for child
molestation. See Smith v. State, 320 Ga. App. 408, 410-411 (1) (a) (740 SE2d 174)
(2013) (holding that there was sufficient evidence to support defendant’s conviction
for child molestation based upon the victim’s testimony). Because the evidence was
sufficient to support his convictions under Jackson v. Virginia, this claim of error is
without merit.
2. Miller argues that the trial court erred by admitting his 2003 prior conviction
for child molestation and statutory rape under OCGA § 24-4-414.
“In 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.” OCGA § 24-4-414 (a). OCGA § 24-4-414 “is a rule of
inclusion, with a strong presumption in favor of admissibility.” (Citation and
punctuation omitted.) State v. Palacio-Gregorio, 361 Ga. App. 339, 343 (2) (a) (862
SE2d 605) (2021). “[T]he State can seek to admit evidence under [OCGA § 24-4-414]
5 for any relevant purpose, including propensity.” (Citation and punctuation omitted.)
Dixon v. State, 350 Ga. App. 211, 213 (1) (828 SE2d 427) (2019). “Nevertheless, the
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice.” (Citation and punctuation omitted.) Palacio-Gregorio,
361 Ga. App. at 343 (2) (a). See OCGA § 24-4-403. “But the exclusion of evidence
under OCGA § 24-4-403 is an extraordinary remedy which should be used only
sparingly.” (Citation and punctuation omitted.) Id. “We review a trial court’s decision
to admit evidence under OCGA § 24-4-414 for abuse of discretion.” Id.
Miller contends that the trial court found that the 2003 convictions were
admissible without engaging in any analysis pursuant to OCGA § 24-4-403, and that
the trial court’s failure to undertake this analysis is grounds for reversal. “However,
there is no requirement that the court explicitly analyze the balancing test on the
record. And absent some express showing that the trial court did not understand its
obligation to conduct the balancing test, we will not read such error into the trial
court’s ruling.” (Citations and punctuation omitted.) Wilkerson v. State, 356 Ga. App.
831, 833 (1) (849 SE2d 677) (2020).
Miller also maintains that the probative value of his 2003 convictions was
substantially outweighed by the danger of undue prejudice because the 2003
6 convictions were for offenses that were too remote in time from the charged offenses.
“The more time separating the charged and prior offense, the less probative value can
be assigned the extrinsic evidence.” (Citation and punctuation omitted.) Wilson v.
State, 312 Ga. 174, 192 (2) (a) (iii) (860 SE2d 485) (2021). However, “[a]s a
practical matter, evidence of other sex offenses by the defendant is often probative
and properly admitted, notwithstanding very substantial lapses of time in relation to
the charged offense or offenses.” (Citation and punctuation omitted.) Id. Here, the
temporal remoteness of the prior acts does not require their exclusion. See id.
(evidence of prior offenses of child molestation that occurred nearly 30 years before
the charged offenses admissible); Maner v. State, 358 Ga. App. 21, 24 (1) (852 SE2d
867) (2020) (evidence of a prior offense that occurred 50 years before the charged
offense admissible).
Finally, Miller argues that the government did not have any significant need
for the evidence of his prior conviction for child molestation. However, the victim
disclosed that Miller had touched her inappropriately only after denying in her first
forensic interview that he had done so, and there was no physical evidence supporting
her disclosure. Consequently, the State needed the evidence of Miller’s prior act of
child molestation to counter any attack on the victim’s credibility. See McAllister v.
7 State, 351 Ga. App. 76, 84-85 (1) (c) (830 SE2d 443) (2019) (“when the defendant
seeks to attack a victim’s credibility, the State has an increased need to introduce
evidence of prior acts.”).
“In light of the strong presumption in favor of admissibility, we cannot say that
the trial court abused its discretion in allowing the prior acts to be admitted.”
(Citation and punctuation omitted.) Maner, 358 Ga. App. at 25 (1).
3. Miller contends that the trial court erred in admitting testimony that
impermissibly bolstered the victim’s credibility. Specifically, Miller contends that the
following testimony by the detective constitutes improper bolstering: “In my
experience, children will be more likely to lie about not being touched versus vice
versa on that.” Miller argues that the clear implication is that the detective believed
the victim’s second interview.
“We review the admission of evidence for an abuse of discretion.” Adkins v.
State, 301 Ga. 153, 158 (3) (a) (800 SE2d 341) (2017). “A witness, even an expert,
can never bolster the credibility of another witness as to whether the witness is telling
the truth. Credibility of a witness is not beyond the ken of the jurors but, to the
contrary, is a matter solely within the province of the jury.” (Citation and punctuation
omitted.) Harris v. State, 304 Ga. 652, 657 (2) (c) (821 SE2d 346) (2018). “When a
8 witness’s statement does not directly address the credibility of another witness,
however, there is no improper bolstering.” Brown v. State, 302 Ga. 454, 460-461 (2)
(b) (807 SE2d 369) (2017). Because the detective’s testimony was not a direct
comment on the victim’s testimony, it does not constitute improper bolstering. See
Harris, 304 Ga. at 657 (2) (c). Consequently, the trial court did not err by admitting
the detective’s testimony.
Judgment affirmed. Dillard, P. J., and Pipkin, J., concur.