convicted Thomas Harold Blevins of enticing a child for
indecent purposes (OCGA § 16-6-5 (a)) and four counts of
child molestation (OCGA § 16-6-4 (a)). Blevins appeals
from the denial of his motion for new trial, contending in
related enumerations that the trial court erred in admitting
"other acts" evidence of his interactions with
several other girls under OCGA § 24-4-404 (b), and also
erred in admitting the testimony of another teenaged witness
under OCGA §§ 24-4-413 and 24-4-414. Blevins also
argues that the trial court erred in allowing the prosecutor
to make inappropriate remarks during closing argument, and in
denying his motion in arrest of judgment. For the reasons
that follow, we affirm.
the evidence in the light most favorable to uphold the guilty
verdict, the evidence shows that Blevins was the
band director at Lakeview Middle School in Catoosa County,
and also assisted with the marching band at Lakeview-Fort
Oglethorpe High School. The victim in the instant case, B.
P., had been one of Blevins' middle school band students.
Blevins began communicating with her via text messages, which
first were innocuous but then became "more intense[,
]" telling B. P. that she was "beautiful" and
asking her to meet him in the band room. He asked her to send
him naked photos of herself, which she did. He also texted
her about a book titled "Crazy, " which contained a
sex scene. B. P. testified that Blevins specifically
referenced a yellow condom, telling her "that's what
me and him should do." Even though she told him that
"it wasn't for me[, ]" he "didn't
texting about the book took place in December 2010 when B. P.
was 14 years old. That same month, shortly before Christmas,
B. P. went to the school band room at Blevins' request to
help fix the bass clarinets. He had texted her that
"other members of the high school band would be there,
" but when she arrived, they were not. Instead, Blevins
told her to go to the storage room "whenever you're
ready, " and he placed a music stand against the band
room door, telling her that if someone came in, "I want
to be able to hear them[.]"
P. and Blevins were in the storage room, Blevins grabbed B.
P.'s arm, started rubbing the tops of her thighs, and
kissing her. She was unable to get away, though she tried.
Blevins sat B. P. on his lap, facing him, took off her shirt,
and rubbed her breasts and between her legs over her
underwear. He next turned off the lights and took B. P.
behind a rack of chairs, where blankets and pillows were laid
on the floor. He removed all her clothes, laid on top of her,
and touched her vaginal area with his fingers. He unzipped
his pants and made her perform oral sex. Later, his penis
touched her vagina. Although B. P. kept saying "no,
" Blevins laughed and said, "that's okay, I got
what I wanted." He then left B. P. in the storage room,
where she sat in shock before putting her clothes on and
going to the gym bathroom to "wash myself from head to
toe." Soon after, Blevins texted: "thanks for the
early Christmas present."
did not tell her mother what happened, as Blevins had warned
B. P. that telling anyone else would "ruin" both
"his job and his life[.]" Later, in 2011, Blevins
texted: "we will wait until you're 18 so I won't
get in trouble[.]"
two years after the storage room incident, B. P. confided in
a friend, who told the school's guidance counselor.
Subsequently, B. P. agreed with investigators to participate
in a recorded phone call with Blevins. On the call, which was
played for the jury, B. P. asked Blevins what she should tell
her mother, who was getting suspicious. Blevins told her,
"For my sake and your sake, just say . . . nothing ever
happened. Mr. Blevins is a good man." He said he had
some problems with texts to students that were "not
academic" but "not any kind of dirty texts"
because if that were the case, he would be in
"jail." He asked her to "have my back[.]"
trial, the State also entered into evidence Blevins'
cellular telephone records for a four-year period ending
December 11, 2012. A Georgia Bureau of Investigation
("GBI") analysis showed that Blevins' phone was
in the area of Lakeview Middle School on the date B. P. was
molested. The analysis also showed that he had communicated
with B. P. 5, 231 times during the four-year period. It also
showed that during this period that Blevins had communicated
with other current or former female band students.
Specifically, he had communicated with E. K. 1, 996 times and
with H. C. 962 times. The State called these girls as
"other acts" witnesses.
was convicted, as outlined above, of enticing a child for
indecent purposes and of child molestation. OCGA §
16-6-5 (a) provides that "[a] person commits the offense
of enticing a child for indecent purposes when he or she
solicits, entices, or takes any child under the age of 16
years to any place whatsoever for the purpose of child
molestation or indecent acts." OCGA § 16-6-4 (a)
(1) provides that "A person commits the offense of child
molestation when such person: . . . Does any 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[.]"
Blevins does not contest the sufficiency of the evidence.
Blevins argues that the trial court erred in admitting,
pursuant to OCGA §§ 24-4-413 and 24-4-414, evidence
of his sexual behavior toward E. K., arguing that the trial
court failed to consider whether the probative value of her
testimony was outweighed by the prejudicial effect. We find
review this contention of error for abuse of discretion.
Steele v. State, 337 Ga.App. 562, 565-566 (3) (788
S.E.2d 145) (2016). OCGA § 24-4-414 (a) provides 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." (Emphasis supplied).
K. was 15 years old, Blevins told her during private music
lessons that "if [she] messed up he was going to touch
[her] breast or kiss [her] neck." E. K. testified that
Blevins made contact with her breasts and upper thigh
multiple times. During one lesson at the high school, Blevins
pulled down E. K.'s pants.
child molestation statute OCGA § 16-6-4 (a) requires
only that the defendant have acted with the intent to arouse
his sexual desires. And the question of intent is peculiarly
a question of fact for determination by the jury."
(Citation and punctuation omitted.) Dority v. State,
335 Ga.App. 83, 95 (3) (780 S.E.2d 129) (2015). A jury could
determine that Blevins acted with E. K. with the intent to
arouse his sexual desires, especially given that while
driving her home from a music lesson, he said he was taking
her to his house to "make whoopee[, ]" a clear
reference to his desire for sex with an underage girl.
Id. (defendant asking victim if she felt as if he
would molest her admissible under OCGA § 24-4-414).
extent that Blevins attempts to argue that the trial court
erred in admitting the evidence under OCGA § 24-4-404
(b), OCGA §§ 24-4-413 and 24-4-414 control, as they
are the more specific statutes regarding admission of prior
acts of child molestation. Dority, supra at 95 (3).
As such, OCGA § 24-4-413 "create[s] a 'rule of
inclusion, ' with a strong presumption in favor of
admissibility[.]" Steele, supra at 566 (3). See
also U.S. v. Brimm, 608 F.Appx. 795, 798 (I) (C)
(11th Cir. 2015) (finding that federal rules 413 and 414
permit the introduction of propensity evidence in sexual
assault and child molestation cases, providing exceptions to
Rule 404 (b)'s general ban on propensity evidence).
pretermitting whether the OCGA § 24-4-403 balancing test
applies in the context of OCGA §§ 24-4-413,
24-4-414, see Robinson v. State, - Ga.App. - *8 (4)
(b), n. 9 (Case No. A17A1415, decided August 23, 2017), the
trial court specifically referenced OCGA § 24-4-403 and,
thus, implicitly found the evidence admissible pursuant to
the test. See Entwisle v. State, 340 Ga.App. 122,
131 (2) (796 S.E.2d 743) (2017) (where trial court did not
make specific findings as to whether probative value
outweighed prejudice, it explicitly referenced OCGA §
24-4-403, thus finding admissibility pursuant to the test).
Blevins next argues that the trial court erred admitting
evidence of prior bad acts pursuant to OCGA § 24-4-404
(b) involving "other acts" witnesses. As to all
these witnesses, Blevins argues that the evidence did not
show the same motive or intent as the charged crimes, and
that the evidence had greater prejudicial impact than
probative value. We disagree.
overturn a trial court's admission of other acts evidence
only where there has been a clear abuse of discretion.
Steele, supra. In determining whether extrinsic
evidence is admissible, we look first ...