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King v. State

Court of Appeals of Georgia, Fourth Division

June 19, 2018

KING
v.
THE STATE.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          DILLARD, CHIEF JUDGE.

         Following trial, a jury convicted Demarc King on one count of aggravated child molestation and one count of sexual battery as a lesser-included offense of child molestation. King now appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in admitting evidence of a prior conviction, improperly commenting on the evidence, in violation of OCGA § 17-8-57, while limiting the scope of his closing argument, and stating that a child cannot consent to sexual conduct in its instruction to the jury regarding the offense of sexual battery. For the reasons set forth infra, we hold that the trial court erred in admitting evidence of King's prior conviction. Accordingly, we reverse his convictions and remand the case for a new trial.

         Viewed in the light most favorable to the jury's verdict, [1] the evidence shows that in March 2011, King, his wife, their six-year-old daughter, M. K., and their four-year-old daughter, K. K., moved from Illinois to live with King's sister and her twelve-year-old daughter, A. K., in Lithonia, Georgia. On July 1, 2011, King's wife returned home from work and saw that King was in their bedroom with A. K., watching funny videos on a laptop computer. Thinking nothing of it, she went to the bathroom and began taking a shower. Once his wife was in the shower, King tried to pull down A. K.'s pants and touch her vagina. A. K. immediately moved away, but King tried again to pull down her pants and touch her. At that point, A. K. yelled at King to stop and fled to her mother's bedroom, despite knowing that her mother was at work. King followed her and threatened to get her in trouble if she told anyone. Nevertheless, as soon as her aunt (King's wife) finished her shower, A. K., visibly upset and crying, told her about King's actions.

         Following A. K.'s outcry, King's wife confronted him. And although King denied doing anything inappropriate, his wife was not persuaded. Consequently, she took her niece and two daughters and left the house to go to the home of another relative. During that drive, King's wife asked all three girls if anyone had ever tried to hurt them. M. K. responded that she would get in trouble if she answered. But after her mother assured her that she would not get in trouble, M. K. responded that her father, King, put his penis in her mouth on several separate occasions and warned her not to tell anyone about it. Shortly after M. K.'s disclosure, King's wife informed his sister about A. K. and M. K.'s revelations. King's sister then reported her brother's actions to the police. And a few months later, after both A. K. and M. K. recounted King's actions to child-advocacy workers during forensic interviews, the police arrested him.

         Subsequently, the State charged King, via indictment, with one count of aggravated child molestation, based on the allegation that he placed his penis in M. K.'s mouth, and one count of child molestation, based on the allegation that he touched A. K.'s vagina. Approximately a month before trial, the State filed a notice of its intent to present evidence of King's prior bad act, ostensibly under OCGA §§ 24-4-404 (b), 24-4-413, and 24-4-414. Specifically, the State sought to admit evidence that King pleaded guilty in an Illinois court to the crime of aggravated criminal sexual abuse. King filed a response, and in a hearing held just prior to jury selection, the trial court ruled that the evidence of King's prior conviction was admissible.

         The case then proceeded to trial, during which the aforementioned evidence was presented. In addition, King presented evidence that a few years before the subject incident, A. K. accused her father of inappropriately touching her but the police eventually closed the investigation due to lack of evidence. Nevertheless, at the trial's conclusion, the jury found King guilty of the aggravated-child-molestation charge and of sexual battery as a lesser-included offense of the child-molestation charge. Thereafter, King obtained new counsel and filed a motion for new trial, which the trial court denied. This appeal follows.[2]

         1. King contends that the trial court erred in admitting evidence of his prior Illinois conviction under OCGA §§ 24-4-413 and 24-4-414. Specifically, he argues that the trial court erred by failing to conduct the balancing test set forth in OCGA § 24-4-403 and by ultimately admitting evidence of allegations that the State failed to prove constituted a crime under Georgia law. We agree the State failed to prove that the allegations for which King was convicted in Illinois constituted an offense under OCGA §§ 24-4-413 or 24-4-414 in Georgia, and thus, the trial court erred in admitting the prior conviction.

         As an initial matter, we note—and both the State and King acknowledge—that because this case was tried after January 1, 2013, our new Evidence Code applies.[3]Turning to the statutes at issue, OCGA § 24-4-413 (a) provides: "In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant." Similarly, 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." Thus, OCGA §§ 24-4-413 ("Rule 413") and 24-4-414 ("Rule 414") "are the more specific statutes that supersede the provisions of Rule 404 (b) in sexual assault and child molestation cases."[4] Importantly, Rules 413 and 414 create "a rule of inclusion, with a strong presumption in favor of admissibility, and the State can seek to admit evidence under these provisions for any relevant purpose, including propensity."[5] And a trial court's decision to admit other acts evidence "will be overturned only [when] there is a clear abuse of discretion."[6]

         In this matter, as previously mentioned, the State filed notice of its intent to present evidence that King pleaded guilty in an Illinois court to the crime of aggravated criminal sexual abuse, under former Illinois statute, [7] 720 ILCS 5/12-16 (d), which provides: "A person commits aggravated criminal sexual abuse if that person commits an act of sexual penetration or sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person is at least 5 years older than the victim." Then, at the pretrial hearing on the issue, the State provided the trial court with what it alleged was the factual background to King's guilty plea. Specifically, the State claimed that in 2006, a 15-year-old friend of King's wife dropped off some food at his apartment, and while she was there, King pushed her onto a bed and forced her to have sexual intercourse. Subsequently, the victim reported the incident to the police, and King ultimately pleaded guilty to aggravated sexual abuse. And based on these facts, the State argued that King's guilty plea and conviction were presumptively admissible under Rules 413 and 414.

         In response, King's trial counsel asserted that Rule 413 applied to different offenses than Rule 414, and he thus argued that because King was currently facing child-molestation charges, the Illinois conviction, which was more analogous to a sexual-assault offense, was not sufficiently similar. Counsel then further argued that the trial court should apply a balancing test and exclude it from evidence. In further support of this contention, King's trial counsel disputed the State's claim that the Illinois victim was 15 years old and asserted that she was 16 years old, which in Georgia is the age of majority. Continuing, trial counsel argued that if the incident had occurred in Georgia "it would not have been any type of child case" because "[s]he would have been the age of majority." But the trial court was not persuaded. And explaining why it did not agree that the prior conviction and the charged offenses were not similar, it noted:

I will not accept that distinction. Sexual assault is sexual assault. Whether it is called child molestation, or rape, or aggravated sodomy, it is a sexual offense. I would believe that as far as your motion for similar transactions, it is admissible under both provisions. Balancing out, it is clearly similar in nature as the case that we have before the Court, and presumptively, it should be admitted under the second provision. So your motion to prevent that similar transaction evidence not to be presented is denied.

         Later, during the same pretrial hearing, the trial court asked the State how it intended to present the evidence of prior bad acts, and the State replied that it expected the victim and the lead detective in the Illinois case to testify. But just before the State rested, it informed the Court that it would present this evidence solely by introducing and publishing a certified copy of King's indictment and conviction. King again objected, but the trial court denied it, and the evidence was admitted via these documents.

         As noted supra, King argues that the trial court erred by admitting his prior conviction without conducting the balancing test set forth in OCGA § 24-4-403 and by admitting evidence of allegations that the State failed to prove constituted a crime under Georgia law.[8] King is correct 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."[9] But pretermitting whether the trial court conducted such a balancing test here, we agree that King's prior conviction was erroneously admitted because the State failed to prove the allegations supporting that conviction constituted an offense under OCGA §§ 24-4-413 or 24-4-414.

         In defining what constitutes an offense under OCGA § 24-4-413 (a), OCGA § 24-4-413 (d) provides:

As used in this Code section, the term "offense of sexual assault" means any conduct or attempt or conspiracy to engage in:
(1) Conduct that would be a violation of Code Section 16-6-1 [rape], 16-6-2 [aggravated sodomy], 16-6-3 [statutory rape], 16-6-5.1 [sexual assault], 16-6-22 [incest], 16-6-22.1 [sexual battery], or 16-6-22.2 [aggravated sexual battery];
(2) Any crime that involves contact, without consent, between any part of the accused's body or an object and the genitals or anus of another person;
(3) Any crime that involves contact, without consent, between the genitals or anus of the accused and any part of another person's body; or
(4) Any crime that involves deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.

         And other than the offenses of statutory rape and incest, the commonality of the offenses defined by this subsection is lack of consent.

         Similarly, defining what constitutes an offense under OCGA § 24-4-414 (a), OCGA § 24-4-414 (d) provides:

As used in this Code section, the term "offense of child molestation" means any conduct or attempt or conspiracy to engage in:
(1) Conduct that would be a violation of Code Section 16-6-4 [child molestation], 16-6-5 [enticing a child], 16-12-100 [sexual exploitation of children], 16-12-100.2 [computer child pornography], or ...

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