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Eubanks v. State

Court of Appeals of Georgia

June 23, 2015

EUBANKS
v.
THE STATE

Child molestation. Washington Superior Court. Before Judge Reeves.

Tobe C. Karrh, for appellant.

S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.

DOYLE, Presiding Judge. Phipps, C. J., and Boggs, J., concur.

OPINION

Page 147

Doyle, Presiding Judge.

Following his conviction for child molestation,[1] Roy Lucius Eubanks appeals from the denial of his motion for new trial. He contends that (1) the trial court erred by admitting evidence of a prior act of molestation because the probative value was substantially outweighed by its unfairly prejudicial effect, (2) the trial court erroneously [332 Ga.App. 569] charged the jury regarding the prior bad act evidence, and (3) the evidence was insufficient to prove intent. Finding no error, we affirm.

" On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence." [2] So viewed, the evidence shows that 11-year-old M. T.'s family began living with Eubanks, a relative. One night, Eubanks invited M. T. and her two younger siblings to sleep in his bedroom while he slept in the living room. As M. T. was falling asleep, she felt Eubanks penetrate her vagina with his finger. Despite M. T.'s protest, Eubanks did not stop until M. T.'s stepfather happened to emerge from a nearby bedroom. At that point, Eubanks left his bedroom and resumed watching television in the living room.

The following day, M. T. reported the abuse to her stepfather, who took M. T. to see her great aunt, whom he knew to be " good with kids." M. T. then described the abuse in more detail to the great aunt, who contacted the Department of Family and Children Services the following Monday morning. Based on an investigation by the sheriff's department, including a forensic interview, Eubanks was arrested and charged with one count of child molestation. Eubanks was tried and found guilty by a jury, and his motion for new trial was denied, giving rise to this appeal.

1. Eubanks contends that the trial court erred by admitting evidence pursuant to OCGA § 24-4-414 (a) that he committed prior acts of child molestation. Specifically, he argues that the evidence should have been excluded under OCGA § 24-4-403 because the probative value of the evidence was substantially outweighed by its unfairly prejudicial effect. We review such an evidentiary ruling for an abuse of discretion,[3] and we discern no such abuse here.

OCGA § 24-4-414 (a) provides: " 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." At Eubanks's trial, the State introduced evidence that he had committed several acts of child molestation by digitally

Page 148

penetrating a girl from the time she was five [332 Ga.App. 570] to the time she was twelve years old, ending approximately seventeen years prior to Eubanks's trial in this case. Eubanks argues that this evidence, while relevant, should have been excluded under OCGA § 24-4-403, which provides: " Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

This determination lies within the discretion of the [trial] court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic ...

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