MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Laman Jackson brings this interlocutory appeal from a trial
court order granting the State's request to introduce two
uncharged prior sexual acts at his child molestation trial.
Jackson argues that the trial court erred when it admitted
the prior acts without performing the balancing test required
under OCGA § 24-4-403. In light of clarifying and
controlling precedent unavailable to the trial court at the
time it reached its decision, we agree with Jackson. We
therefore vacate the court's order and remand the case
for the trial court to consider the balancing test set forth
in Rule 403 in deciding whether to admit evidence of the
prior acts under OCGA § 24-4-414.
record shows that Jackson was indicted for child molestation
and criminal attempt to commit a felony. The indictment
alleges that Jackson committed an immoral and indecent act by
touching the vagina of a child under the age of 16 years, and
that he attempted to commit the crime of child molestation by
asking the same child to open her legs so that he could take
a picture of her vagina.
28, 2015, the State filed a notice of intent to present
evidence under OCGA §§ 24-4-404 (b), 24-4-413, and
24-4-414, seeking to introduce evidence of two uncharged
acts. In the first, Jackson is alleged to have forced one of
his sons, when he was approximately seven years old, to
perform oral sex on Jackson. In the second, Jackson is
alleged to have forced a different minor son to have sexual
relations with a female minor child while Jackson watched.
The State contended in its notice that this conduct would
constitute the crimes of aggravated child molestation and
child molestation, making the uncharged acts relevant to the
charges currently pending against Jackson. Jackson opposed
the State's notice, maintaining that the evidence was
inadmissible pursuant to the balancing test under OCGA §
24-4-403, and he requested a pre-trial hearing to determine
the admissibility of such evidence.
23, 2016, the Superior Court of Bibb County conducted a
hearing regarding the State's notice and Jackson's
objections. Several months after the hearing, the trial court
issued its order, ruling that the State would be permitted to
present this evidence in accordance with the notice provided
to Jackson. The trial court noted that no argument had been
made that the evidence was irrelevant, instead focusing on
the application of the balancing test under OCGA §
24-4-403 and whether the plain language of OCGA §§
24-4-413 and 24-4-414 obviated the need for Rule 403
analysis. The trial court determined that applying the
balancing test would "add a requirement to Rules 413 and
414 that does not otherwise exist" within the text of
the statute. The trial court noted that this decision was not
consistent with the federal courts' interpretation of the
corresponding Federal Rules or Evidence, but opined that the
"significant and substantive difference between the
Federal Rules . . . and the Georgia Rules" necessitated
differing results. In particular, the trial court focused on
the permissive language of the Federal Rule providing that
federal courts "may" admit other acts evidence and
contrasted that language with the directive in the comparable
Georgia rule providing that the evidence "shall be
admissible." Following its order, the trial court issued
a certificate of immediate review pursuant to the
interlocutory appeal provisions of OCGA § 5-6-34 (b),
which this Court granted.
sole issue on appeal for this Court to resolve is whether the
trial court must conduct the balancing test set forth in OCGA
§ 24-4-403 when considering the admissibility of prior
sexual offenses under OCGA § 24-4-414. Because this
question is one of statutory interpretation, our review of
this purely legal issue is de novo. Harris v.
Mahone, 340 Ga.App. 415, 417 (1) (797 S.E.2d 688)
(2017). We review the trial court's decision on whether
to admit evidence under Rule 414 for a clear abuse of
discretion. State v. McPherson, No. A17A0364, 2017
WL 1881013, at *3 (800 S.E.2d 389) (June 21, 2017).
§ 24-4-414 (a) states that "[i]n 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) (emphasis supplied). This provision supersedes that of
OCGA § 24-4-404 (b) in child molestation cases. See
Dixon v. State, 341 Ga.App. 255, 258 (1) (800 S.E.2d 11)
(2017). Jackson correctly notes that the language of this
Rule is slightly different from the corresponding Federal
Rule of Evidence. Federal Rule 414 states, in relevant part,
that "[i]n a criminal case in which a defendant is
accused of child molestation, the court may admit
evidence that the defendant committed any other child
molestation. The evidence may be considered on any matter to
which it is relevant." Fed.R.Evid. 414 (a) (emphasis
supplied). The State argues, and the trial court found, that
the use of the word "shall" in Georgia's Rule
414 meant that qualifying evidence was to be admitted
regardless of any Rule 403 considerations. They are mistaken.
When we consider the meaning of a statute, we must presume
that the General Assembly meant what it said and said what it
meant . . . and so we must read the statutory text in its
most natural and reasonable way, as an ordinary speaker of
the English language would. The common and customary usages
of the words are important, but so is their context. For
context, we may look to the provisions of the same statute,
the structure and history of the whole statute, and the other
law - constitutional, statutory, and common law alike - that
forms the legal background of the statutory provision in
Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774
S.E.2d 688) (2015) (citations and punctuation omitted). Thus,
"even if words are apparently plain in meaning, they
must not be read in isolation. Instead, they must be read in
the context of the statute as a whole." Pfeiffer v.
Dep't of Transp., 250 Ga.App. 643, 647 (2) (551
S.E.2d 58) (2001) (citations and punctuation omitted).
the express direction that evidence of prior sexual offenses
committed by the defendant "shall be admissible, "
OCGA § 24-4-414 (a) has been "construed as creating
a rule of inclusion, with a strong presumption in favor of
admissibility." McPherson, 2017 WL 1881013, at
*2 (citations and punctuation omitted).
As this Court has held, under OCGA § 24-4-414 (a),
showing a disposition toward molestation is a relevant
purpose and not unfairly prejudicial in light of the nature
of that conduct. Thus, evidence that a defendant engaged in
child molestation in the past is admissible to prove that the
defendant has a disposition of character that makes it more
likely that he did commit the act of child molestation
charged in the instant case.
Id. at *2 (citation and punctuation omitted).
even so, in McPherson, which was issued after the
filing of the briefs in this appeal, this Court stated that
evidence admissible under OCGA § 24-4-414 (a) may be
excluded under Rule 403 "if the trial court concludes
that its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury." Id. at *3 (citations and
punctuation omitted). McPherson expressly relied on
and incorporated Eleventh Circuit law holding that evidence
admitted under Federal Rule 414 (a) must also satisfy Federal
Rule 403. Id. at n.8 *3. See also Dixon,
341 Ga.App. at 260 (1) (b) (noting that Rule 403 applies to
evidence admitted under OCGA § 24-4-414). Despite the
difference in word choice between the two Rules, the meaning
of Georgia's Rule 414 is the same as Federal Rule 414.
Rule 414's provision that prior act evidence "shall
be admissible" does not mean, as the State suggests,
that qualifying evidence must be admitted. Rather,
"admissible" merely ...