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Dixon v. State

Court of Appeals of Georgia, Second Division

May 23, 2019

DIXON
v.
THE STATE.

          MILLER, P. J., REESE and MARKLE, JJ.

          MARKLE, JUDGE.

         Following a jury trial, David Michael Dixon was convicted of aggravated child molestation (OCGA § 16-6-4 (c)), aggravated sexual battery (OCGA § 16-6-22.2), two counts of child molestation (OCGA § 16-6-4 (a)), and sexual battery against a child under the age of 16 (OCGA § 16-6-22.1 (d)). He filed a motion for new trial, as amended, on the grounds that (1) the trial court erred in admitting evidence of other acts and in instructing the jury on its consideration of this evidence, and (2) he received ineffective assistance of counsel. The trial court denied the motion, and Dixon now appeals. After a thorough review of the record, and for the reasons that follow, we affirm.

         Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that the victim visited Dixon, her great-grandfather, every day after school. In 2015, the then-eight-year-old victim saw Dixon urinating behind the house. Dixon then told her that, because she saw him, he should get to see her. Dixon made her stand naked in front of him and he penetrated her with his fingers.

         The victim told a family member about Dixon's conduct, stating that Dixon would touch her "down there" and that his fingernails hurt. She later complained that it hurt when she went to the bathroom, and she told her teacher what Dixon had done. The victim said that Dixon would ask her to play with his private part and, when she refused, he offered to buy her some chips. The victim was upset and afraid and did not want it to happen again.

         Following the victim's outcry, her mother notified the police and the victim's pediatrician. During a subsequent forensic interview, which was recorded, admitted into evidence, and played for the jury, the victim stated that Dixon touched her often, performed oral sex on her and made her perform it on him, and penetrated her vaginally. The victim also drew pictures depicting where Dixon touched her and where she was forced to kiss him.

         Dixon's daughter and two step-daughters also came forward and admitted that he had engaged in similar inappropriate contact with each of them years earlier. Stepdaughter M. B. testified that Dixon would let her "drive" the car, putting her in his lap and letting her steer. While she was seated on his lap, Dixon would place his hands inside her underwear, put his finger in her and fondle her. She remembered his long fingernails. On another occasion, she went into his room after having a nightmare and he tried to touch her inappropriately. Step-daughter S. D. testified that Dixon would rub his hand on her privates while they were playing in the lake, and he once stuck his finger in her while they were laying in bed. Dixon's biological daughter testified that he would fondle her while she sat in his lap, rub his hand on her privates, and once rubbed his penis against her vagina. Each of them stated that they were about the same age as the victim when Dixon touched them.

         Investigators from the Habersham County Sheriff's Office interviewed Dixon. They also took photographs of his long fingernails. Dixon gave a voluntary statement, which was entered into evidence and played for the jury. In his statement, Dixon initially denied the allegations, but he later said it was possible he could have touched the victim while he was asleep or when he was drunk and blacked out. He also admitted that he had always had long fingernails. When told that his three daughters also accused him of similar conduct, he stated that each had a grudge against him and that they were trying to get even with him for leaving their mother. However, he later admitted that it was possible he touched his biological daughter because he spent more time with her.

         The jury convicted Dixon on all charges. Thereafter, Dixon moved for a new trial, arguing that the trial court erred by admitting the testimony of the other three accusers and in instructing the jury as to how it could consider the other acts evidence, and that he received ineffective assistance when trial counsel failed to object to the jury instruction. Following a hearing, at which counsel testified, the trial court denied the motion for new trial. Dixon now appeals.

         1. In his first enumeration of error, Dixon argues that the trial court erred by admitting the other acts evidence under OCGA §§ 24-4-413 and 24-4-414 because the court failed to determine that the evidence was relevant or to conduct the required balancing test under OCGA § 24-4-403 ("Rule 403") prior to admitting the evidence.[1] We disagree.

         Under OCGA § 24-4-413 (a) ("Rule 413"), "[i]n 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, under OCGA § 24-4-414 (a) ("Rule 414"), "[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." We review the admission of other acts evidence under Rules 413 and 414 for abuse of discretion. King v. State, 346 Ga.App. 362, 364 (1) (816 S.E.2d 390) (2018).

         "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." (Punctuation omitted.) King, 346 Ga.App. at 364 (1); see also Benning v. State, 344 Ga.App. 397, 401 (810 S.E.2d 310) (2018) (evidence relevant and admissible under Rule 413 to show intent). Nevertheless, evidence that is admissible under these rules may still 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." OCGA § 24-4-403; see also Benning, 344 Ga.App. at 402.

         The trial court is required to conduct a balancing test under Rule 403 when considering whether evidence is admissible under Rules 413 and 414. Jackson v. State, 342 Ga.App. 689, 692 (805 S.E.2d 457) (2017). "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 act and the charged offense, as well as temporal remoteness." (Punctuation omitted.) Eubanks v. State, 332 Ga.App. 568, 570 (1) (774 S.E.2d 146) (2015) (prior sexual assault 17 years earlier was admissible); see also Harris v. State, 340 Ga.App. 865, 868-869 (1) (b) (798 S.E.2d 498) (2017) (evidence of molestation that occurred 44 years earlier relevant and admissible under Rule 414 to show pattern of molestation despite remoteness in time).

         Upon review, we conclude that the trial court did not abuse its discretion in admitting the testimony regarding Dixon's prior acts. First, the evidence was clearly relevant to Dixon's intent, identity, and propensity to commit the crimes. As in the instant case, the three other family members testified that Dixon engaged in the same conduct of rubbing their genitals and inserting his finger into their vaginas when they were approximately the same age as the ...


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