Thomas v. State

734 S.E.2d 823, 318 Ga. App. 849, 2012 Fulton County D. Rep. 3926, 2012 Ga. App. LEXIS 1009
Court of Appeals of Georgia·Decided November 28, 2012·No. A12A1188·Published·Cited by 31 cases

Opinion

Branch, Judge.

Following a jury trial, Larry Eldon Thomas was convicted of two counts of child molestation (OCGA § 16-6-4) and one count of enticing a child for indecent purposes (OCGA § 16-6-5).1 He now appeals from the denial of his motion for new trial, asserting that current Georgia law regarding the admission of evidence of prior difficulties2 between a defendant and a victim violates a defendant’s constitutional rights [850] to a fair trial and due process. Thomas also claims that, even if Georgia law regarding the admission of prior difficulties is valid, the trial court nevertheless erred in admitting that evidence. He further contends that the court below erred by allowing testimony that improperly bolstered the victim’s credibility and improperly commented on the ultimate issue of his guilt. Finally, Thomas asserts that he received ineffective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the verdict,3 the record shows that at the time of the two incidents in question Thomas was living with the victim’s older sister, in the same family home where the eleven-year-old female victim resided.4 The victim testified that on one occasion, while Thomas and she were playing on separate computers in the same room, Thomas came and stood beside her and, while holding his penis in his hand, rubbed it on her arm. On another occasion, the victim’s sister told her that Thomas wanted the victim to go to the basement of the home, because he had something he wanted to show her on the computer. When the victim arrived in the basement, Thomas told her to close her eyes; when Thomas instructed her to open her eyes, the victim saw Thomas standing with his penis exposed and the computer displaying pornographic images. Thomas then tried to get the victim to touch his penis, but she instead screamed for her sister and attempted to flee the room. According to the victim, Thomas grabbed her wrist and shut the door to the room, in an effort to prevent her from leaving.

With regard to prior difficulties, the State presented evidence of four prior occasions on which Thomas acted in a sexually inappropriate way toward the victim. On one occasion, Thomas engaged in a pillow fight with the victim and her young stepsisters. Thomas was standing in a bathroom and the girls threw pillows from the adjoining bedroom at each other and at Thomas, and during this incident Thomas exposed his penis to the victim.5 Additionally, the victim explained that every time Thomas threw a pillow back, it had a small wet spot on it. During another incident, the victim and her stepsisters were playing on a trailer bed in the yard, using it as a kind of see-saw. [851] Every time the victim went down on the see-saw, she would come close to Thomas, who would fondle her buttocks. The remaining two incidents each involved Thomas exposing his penis to the victim.

1. Thomas argues that the court below erred in admitting evidence of these four incidents because Georgia law allowing the introduction of prior difficulties to show a defendant’s bent of mind or course of conduct violates the defendant’s constitutional rights to a fair trial and due process. Given the constitutional nature of these claims, Thomas appealed to the Supreme Court of Georgia. Finding that Thomas had failed to make his constitutional argument to the trial court, our Supreme Court declined to consider this claim and transferred the case to this Court. See City of Decatur v. DeKalb County, 284 Ga. 434, 435-436 (1) (668 SE2d 247) (2008). Like our Supreme Court, “[t]his court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal.” (Citations omitted.) Chiaka v. Rawles, 240 Ga. App. 792, 796 (4) (525 SE2d 162) (1999). Accordingly, we decline to address Thomas’s first enumeration of error.

2. Thomas asserts that the court below violated his constitutional rights to due process and a fair trial when, before admitting the evidence of prior difficulties between the victim and Thomas, it failed to conduct an explicit balancing test to determine whether the probative value of this evidence outweighed the prejudice it would cause Thomas. This Court has previously held, however, that “there is no requirement that the trial judge conduct an ‘explicit’ balancing test in order to conclude that the probative value of the evidence outweighs its prejudicial effect.” (Footnote omitted.) Futch v. State, 316 Ga. App. 376, 382 (2) (730 SE2d 14) (2012). Moreover, requiring trial courts to engage in an explicit balancing test before allowing the admission of prior difficulties would be superfluous. By finding that evidence is admissible as a prior difficulty, the trial judge is necessarily finding that

the State seeks to introduce the evidence for an appropriate purpose as it tends to prove the defendant’s motive or intent, or the state of the relationship between the victim and the defendant; there is sufficient evidence that the defendant and the victim were the parties involved in the prior difficulty; and there is a sufficient connection between the prior difficulty and the crime charged.

Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998). Inherent in the finding that evidence of prior difficulties is admissible, therefore, is the conclusion that the probative value of that evidence outweighs [852] its prejudicial impact. Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995). And “evidence that is otherwise relevant or material to the issues in a criminal case does not become inadmissible simply because it concerns separate offenses, or because it incidentally puts a criminal defendant’s character or reputation in evidence.” (Citation, punctuation and footnote omitted.) Attaway v. State, 259 Ga. App. 822, 829 (7) (578 SE2d 529) (2003).

3. Thomas contends that it was error for the trial court to admit evidence of the incident in which Thomas fondled the victim’s buttocks and the incident involving the pillow fight. Specifically Thomas argues that these incidents were not sufficiently similar to the indicted incidents to qualify as prior difficulties. This argument misapprehends the law regarding evidence of prior difficulties.

Unlike similar transactions, prior difficulties do not implicate independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such a nexus. Thus, the admissibility of evidence of prior difficulties does not depend upon a showing of similarity to the crime for which the accused is being tried.

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Thomas v. State, 734 S.E.2d 823, 318 Ga. App. 849, 2012 Fulton County D. Rep. 3926, 2012 Ga. App. LEXIS 1009 (Ga. Ct. App. 2012).

734 S.E.2d 823 (Thomas v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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