Prickett v. State

469 S.E.2d 371, 220 Ga. App. 244, 96 Fulton County D. Rep. 810, 1996 Ga. App. LEXIS 169
CourtCourt of Appeals of Georgia
DecidedFebruary 19, 1996
DocketA95A2664
StatusPublished
Cited by23 cases

This text of 469 S.E.2d 371 (Prickett 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
Prickett v. State, 469 S.E.2d 371, 220 Ga. App. 244, 96 Fulton County D. Rep. 810, 1996 Ga. App. LEXIS 169 (Ga. Ct. App. 1996).

Opinion

Johnson, Judge.

Dean Prickett, Jr., was charged with two counts of rape in that twice on the same day he forced the fifteen-year-old babysitter hired by him and his wife to have sexual intercourse with him. Prickett pled not guilty to the charges. The case was tried before a jury. At trial, Prickett testified that he engaged in one act of consensual sexual intercourse with the alleged victim, but denied that the other alleged instance of sexual intercourse took place. The jury found Prickett guilty on both counts of rape. He appeals.

*245 1. Prickett asserts that the trial court erred in admitting prior similar transaction evidence because the alleged prior acts are not sufficiently similar to the current offenses. The court allowed two teenage females to testify that approximately three years before the rapes alleged in this case, Prickett, as he drove by them on a tractor, grabbed his groin, flicked his tongue and gestured with the middle finger of his hand. We agree with Prickett that this testimony impermissibly placed his character in issue.

“Evidence regarding the character of a defendant is generally inadmissible unless the defendant puts his character in issue. As a corollary to this principle, evidence of independent offenses committed by a defendant is generally inadmissible due to its inherently prejudicial nature and minimal probative value.” (Citations and punctuation omitted.) Henderson v. State, 204 Ga. App. 884, 886 (2) (420 SE2d 813) (1992). But evidence of independent offenses may be admitted if the State introduces the evidence for a proper purpose, if there is enough evidence to prove that the defendant actually committed the prior offense and if there is sufficient similarity between the charged offense and the independent offense. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “To meet the ‘similarity’ requirement for the admission and use of similar transaction evidence, there must be an affirmative showing by the State . . . that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter. [Cits.]” Wells v. State, 208 Ga. App. 298, 302 (1) (b) (430 SE2d 611) (1993).

In the present case, the State has not met this burden. The prior gestures purportedly made by Prickett are not similar to the forcible rapes alleged in this case and there is no evidence that such gestures were made in connection with these rapes. Consequently, proof that Prickett made the gestures does not tend to prove that he also committed the rapes. Because the inherent prejudice of the prior transaction testimony greatly outweighs its minimal probative value, the trial court erred in allowing that testimony. See Eiland v. State, 213 Ga. App. 838, 839 (1) (445 SE2d 765) (1994).

2. Prickett contends that the court compounded its error in admitting the prior transaction evidence by then failing to charge the jury on the limited purpose of such evidence. This is a valid contention even though, as the State points out, Prickett’s trial attorney failed to request such a charge. See Sloan v. State, 214 Ga. App. 784, 785-786 (2) (449 SE2d 328) (1994). Not only did he fail to request the instruction, but after the court’s final jury charge, Prickett’s lawyer said he had no exceptions to the charge. In spite of these procedural defects caused by Prickett’s trial counsel, we cannot ignore the court’s *246 failure to give the prior similar transaction charge because this failure was so plainly erroneous as a matter of law that it deprived Prickett of his right to a fair trial to determine his guilt or innocence only as to the current charges, not on the purported prior acts. See Laney v. State, 184 Ga. App. 463, 467 (2) (361 SE2d 841) (1987).

“[Presenting a jury with such [prior acts] evidence serves no useful purpose unless the jury also is given adequate instructions regarding [the] issues of fact they must resolve from the evidence before they can consider the similar act or transaction for the limited purpose for which they were instructed such evidence was introduced. Moreover, providing the jury with adequate instructions as to the admission of any evidence of similar or logically connected offenses or transactions is necessary in the interest of justice. ...” (Emphasis in original.) Adams v. State, 208 Ga. App. 29, 37 (3) (e) (430 SE2d 35) (1993). Here, the trial court should have charged the jurors that Prickett is not on trial for the prior acts, that the limited purpose claimed by the State for introducing such evidence is only to show his state of mind and lustful disposition, that before considering the prior acts for this purpose they should determine if Prickett actually committed those acts, and if so, whether those acts are similar enough to the current rape charges so that Prickett’s commission of the prior acts tends to illustrate his state of mind in this case. See Rice v. State, 217 Ga. App. 456, 458 (2) (458 SE2d 368) (1995); Morris v. State, 212 Ga. App. 779, 780 (2) (442 SE2d 792) (1994); Adams, supra at 36 (3) (e). The court’s harmful error in not giving these necessary prior transaction charges compounded the harm of the improper admission of the prior acts evidence and mandates a reversal of Prickett’s conviction.

3. Prickett claims the court erred in qualifying a counselor as an expert on post traumatic stress disorder and rape trauma syndrome. The State attempts to rebut this claim by arguing that it did not submit the counselor as an expert on post traumatic stress disorder and rape trauma syndrome, but offered him only as an expert in counseling. The State’s argument is disingenuous because it is apparent from a review of the witness’s entire testimony that the State did not present him simply to testify about counseling; rather, he testified about his understanding of post traumatic stress disorder and rape trauma syndrome, and that he had diagnosed the alleged victim in this case as having post traumatic stress disorder. Thus, contrary to the State’s position, the court allowed the witness to testify as an expert on post traumatic stress disorder and rape trauma syndrome.

“Generally, nothing more is required to qualify an expert than that he has been educated in a particular trade or profession. This special knowledge may be derived from experience as well as study.” (Citations and punctuation omitted.) Morris v. State, 159 Ga. App. *247 600, 601 (1) (284 SE2d 103) (1981). In the case before us, there is insufficient evidence that this witness has special knowledge about post traumatic stress disorder and rape trauma syndrome. In attempting to qualify the witness as an expert, the State elicited testimony from him that he has been a counselor for eight years and licensed by the State for one year, has graduate degrees from two theological seminaries, was trained at the Georgia Baptist Medical Center in pastoral counseling, and has counseled approximately 150 sexual abuse victims.

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Bluebook (online)
469 S.E.2d 371, 220 Ga. App. 244, 96 Fulton County D. Rep. 810, 1996 Ga. App. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prickett-v-state-gactapp-1996.