(Code 1981, §24-4-413, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Affirmative defense to certain sexual crimes, § 16-3-6.
Rape generally, § 16-6-1.
Similar crimes in sexual-assault cases, Fed. R. Evid. 413.
Notice of prosecution's intent to present evidence of similar transactions, Ga. S. Ct. R. 31.3.
Law reviews.- For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-202 and former O.C.G.A. § 24-2-2 are included in the annotations for this Code section.
Exceptions to the general rule have been liberally extended in cases of sexual crimes. Perry v. State, 158 Ga. App. 349, 280 S.E.2d 390 (1981) (decided under former Code 1933, § 38-202); Neal v. State, 159 Ga. App. 450, 283 S.E.2d 671 (1981);(decided under former Code 1933, § 38-202).
Proof of crimes involving moral turpitude is admissible to impeach a witness who places the witness's character in issue through testimony given by the witness on direct examination. Emmett v. State, 199 Ga. App. 650, 405 S.E.2d 707, cert. denied, 199 Ga. App. 905, 405 S.E.2d 707 (1991) (decided under former O.C.G.A. § 24-2-2).
Two conditions imposed on admission of evidence of independent crimes.
- Two conditions precedent to the admission of evidence relating to defendant's prior act of exposing oneself are met when first, the witness positively identified defendant as the perpetrator of the crime; second, there was sufficient similarity between the former incident and the latter incident that proof of the former tends to prove the latter. Huckeba v. State, 157 Ga. App. 795, 278 S.E.2d 703 (1981) (decided under former Code 1933, § 38-202).
Three affirmative showings required for admission of similar offenses.
- In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim's testimony, but the state must still make three affirmative showings: a proper purpose for the use of the evidence; sufficient proof that the defendant did, in fact, commit the independent act; and sufficient similarity or connection between the two incidents so that proof of the former tends to prove the latter. Hostetler v. State, 261 Ga. App. 237, 582 S.E.2d 197 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying the state's motion to introduce other acts evidence in the state's prosecution against the defendant on the charge of rape because, although the trial court did not expressly evaluate in the court's order whether the other acts evidence was relevant to any specific matter at trial - a threshold inquiry - or that the evidence satisfied the prerequisites for admission, the trial court properly focused the court's analysis on whether the other acts evidence (assuming that it was relevant and admissible) should be excluded on the ground that the evidence's probative value was substantially outweighed by the danger of unfair prejudice, and it was not improper for the trial court to frame the court's analysis in that way. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).
Similar acts or omissions on other and different occasions.
- Trial court erred in admitting defendant's statement to an investigating officer that defendant had not been alone with the eight-year-old molestation victim in the room where the victim alleged the molestation occurred since defendant had learned defendant's lesson when the defendant lost the defendant's spouse after the defendant ran off with a 15-year-old girl from defendant's church and got her pregnant since the statement was an improper reference to defendant's character; however, admission of the statement was not reversible error since it was highly-probable that defendant would have been convicted even absent the statement being admitted given the direct and circumstantial evidence against the defendant. Lowther v. State, 263 Ga. App. 282, 587 S.E.2d 335 (2003) (decided under former O.C.G.A. § 24-2-2).
Admission of similar transaction proper.
- In a prosecution for the crimes of kidnapping, aggravated sexual battery, sexual battery, and attempted rape, admission of similar transaction evidence was upheld as: (1) the defendant had sufficient notice of the state's intent to present that evidence; (2) the prior bad acts were sufficiently similar to the charged acts; (3) such was properly admitted for the purposes of showing identity, intent, bent of mind, and course of conduct; (4) both prior victims positively identified the defendant as their assailant; and (5) the evidence showed that the defendant had a modus operandi of luring young women who were strangers to him into his car, driving to isolated areas, making them expose their breasts and genital areas, masturbating, intimidating them with talk of even more violent sexual assault or death, and then returning them to the area of the first encounter. Watley v. State, 281 Ga. App. 244, 635 S.E.2d 857 (2006) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting the evidence of 11-year-old and 15-year-old similar transactions because both similar transactions and the instant crimes involved defendant committing sexual acts against children with the second similar transaction and the instant crimes having defendant in a position of authority over the victims; thus, the similarity to the present crimes and their probative value to show unique bent of mind made those crimes admissible. Arbegast v. State, 332 Ga. App. 414, 773 S.E.2d 283 (2015).
Testimony regarding another sexual assault was admissible on any matter to which it was relevant and, thus, trial counsel's failure to request a limiting instruction did not support a claim of ineffective assistance. Cook v. State, 338 Ga. App. 489, 790 S.E.2d 283 (2016).
Trial court did not abuse the court's discretion by admitting evidence of prior molestation acts upon a minor victim witness because the jury could have concluded by a preponderance of the evidence that the defendant committed the acts described by the witness and the probative value was great based on the overall similarity of the acts, each involved inappropriate sexual contact between the defendant and a child of similar age to whom the defendant gained access through a relationship with the child's mother. Dixon v. State, 341 Ga. App. 255, 800 S.E.2d 11 (2017).
Trial court correctly held that O.C.G.A. § 24-4-413(a) governed the admissibility of the other acts evidence because the defendant was accused of an offense of sexual assault and the other acts evidence concerned the defendant's commission of another offense of sexual assault. Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018).
Trial court properly permitted the state to introduce evidence of the defendant's two prior bad acts, a 2009 incident of exposure in front of underage girls and a 2012 incident of attempt to sexually assault a female neighbor, because they were not the faultless acts of an innocent child, but rather demonstrated evidence of the defendant's lustful disposition and were relevant. Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017).
Trial court did not err in admitting, pursuant to O.C.G.A. §§ 24-4-413 and24-4-414, evidence of the defendant's sexual behavior toward another student as a jury could have determined that the defendant acted with the intent to arouse the defendant's sexual desires, especially given that while driving the student home from a music lesson, the defendant said the defendant was taking the student to the defendant's house to "make whoopee," a clear reference to sex. Blevins v. State, 343 Ga. App. 539, 808 S.E.2d 740 (2017), cert. denied, No. S18C0502, 2018 Ga. LEXIS 371 (Ga. 2018), overruled on other grounds by McElrath v. State, 308 Ga. 104, 839 S.E.2d 573 (2020).
When the defendant was convicted of two counts of aggravated sodomy and one count each of family violence aggravated assault, family violence battery, terroristic threats, and family violence simple battery against a live-in girlfriend, evidence of prior sexual assaults was properly admitted because the evidence was relevant to show the defendant's intent, which was put in issue when the defendant entered a plea of not guilty; the prior sexual assaults were sufficiently similar to the charged sexual assaults; the state was able to use the evidence to bolster the victim's credibility by demonstrating that the victim's circumstances were not unique; and any risk of unfair prejudice was mitigated by the trial court's limiting instruction. Benning v. State, 344 Ga. App. 397, 810 S.E.2d 310 (2018).
Trial court did not abuse the court's discretion in admitting testimony regarding the appellant's prior acts of sexual assault because that evidence was relevant to the appellant's intent, identity, and propensity and three other family members testified that the appellant engaged in the same conduct of rubbing their genitals and inserting the defendant's finger into their vaginas when the witnesses were the same age as the victim, which testimony was relevant to show the appellant's propensity and that it was the appellant who molested the victim. Dixon v. State, 350 Ga. App. 211, 828 S.E.2d 427 (2019).
Admission of prior incident of statutory rape.
- In a defendant's prosecution for statutory rape and child molestation of a 14-year-old girl in her parents' trailer while the parents were home, evidence of a similar incident in the same trailer park involving another trailer and another 14-year-old girl was admissible under O.C.G.A. § 24-4-413 to show the defendant's knowledge, motive, preparation, and intent. Steele v. State, 337 Ga. App. 562, 788 S.E.2d 145 (2016).
State of feeling between defendant and victim.
- Trial court did not err in admitting evidence of a previous difficulty between a defendant and victim which illustrated the state of feeling between them. Wright v. State, 113 Ga. App. 436, 148 S.E.2d 333 (1966) (decided under former Code 1933, § 38-202); Jones v. State, 246 Ga. 109, 269 S.E.2d 6 (1980);(decided under former Code 1933, § 38-202).
Trial court properly admitted similar transaction evidence to show a defendant's course of conduct and intent in the defendant's trial for public indecency and sexual battery as in each of the similar transactions, defendant approached a woman previously unknown to the defendant in a public place, attempted to talk to the woman, and then engaged in sexually inappropriate behavior; in the sexual battery incidents and one similar transaction, the defendant either bit or licked the victims on their buttocks while the victims were shopping and in the public indecency incident and two of the similar transactions, the defendant exposed self. Harmon v. State, 281 Ga. App. 35, 635 S.E.2d 348 (2006), cert. dismissed, No. S07C0386, 2007 Ga. LEXIS 137 (Ga. 2007) (decided under former O.C.G.A. § 24-2-2).
During the defendant's trial for rape, the trial court did not err by permitting the state to present evidence of a prior similar transaction because the prior transaction evidence was proper and not foreclosed by collateral estoppel since identity and commission of the act were not at issue in the first trial; identity was not an issue in the prior case because the defendant claimed that consensual sex, and in the case before the trial court, identity was one of the purposes for which the state sought to have the similar transaction evidence admitted since the defendant claimed that he did not know the victim and had not raped her. Bell v. State, 311 Ga. App. 289, 715 S.E.2d 684 (2011) (decided under former O.C.G.A. § 24-2-2).
Conviction of sex offense admissible in failure to register as offender trial.
- Trial court did not err in admitting into evidence a no contest plea and in "making reference" to the plea with regard to the similar transaction evidence because the defendant's failure to object to the introduction of the evidence precluded review of the issue on appeal; further, the plea was admissible to show a conviction for purposes of the defendant's alleged failure to register as a sex offender under O.C.G.A. § 42-1-12 and the jury was permitted to consider the plea as similar transaction evidence. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006) (decided under former O.C.G.A. § 24-2-2).
Admission of prior conviction for indecent exposure.
- In a sexual battery case, it was proper to admit similar transaction evidence of a prior conviction for indecent exposure. Although the present incident involved the defendant groping the victim's breast, during both incidents, the defendant commented on the victim's appearance, asked the victim to look at the defendant, and began masturbating in the victim's presence; the proof of the prior incident tended to establish the charged offense and was also relevant to rebut the defendant's claim that it was the victim who had exposed the victim's breasts to the defendant by showing the defendant's course of conduct, bent of mind, and scheme. Romo v. State, 288 Ga. App. 237, 653 S.E.2d 832 (2007) (decided under former O.C.G.A. § 24-2-2).
Eleven-year lapse does not render prior similar offense inadmissible.
- Eleven-year lapse of time between defendant's similar prior sex offense and the one on trial did not itself render evidence of the prior offense inadmissible. It was one of the more important factors in considering admissibility; once it crossed that threshold, it thereafter affected the weight and credibility of the testimony. Hill v. State, 183 Ga. App. 404, 359 S.E.2d 190 (1987) (decided under former O.C.G.A. § 24-2-2).
Testimony from other rape victims.
- In a rape prosecution, similar transaction testimony from the defendant's prior rape victims was properly admitted, as the testimony was probative of the defendant's course of conduct, intent, modus operandi, and lustful disposition, and corroborated the victim's testimony that the defendant claimed to have previously raped persons that "nobody would believe." Sanders v. State, 297 Ga. App. 897, 678 S.E.2d 579 (2009) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior rape admissible.
- Trial court acted within the court's discretion in admitting evidence of a prior rape because the state did not seek to introduce evidence of the prior rape to raise an improper inference concerning the defendant's character but rather to show the defendant's intent, bent of mind, and course of conduct, all of which were proper purposes; the prior and present rapes also were sufficiently similar because in both rapes, the defendant sexually attacked a young Spanish-speaking woman after the defendant had been drinking alcohol, the defendant threatened both victims, and the two attacks occurred only a few months apart. Alvarez v. State, 309 Ga. App. 462, 710 S.E.2d 583 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence inadmissible due to lack of proof of foreign conviction.
- Trial court erred in admitting evidence of the defendant's prior convictions because the state failed to prove that the allegations for which the defendant was convicted of, aggravated criminal sexual abuse in Illinois, constituted an offense under O.C.G.A. § 24-4-413 or O.C.G.A. § 24-4-414 as the state failed to prove the age of the victim in that case. King v. State, 346 Ga. App. 362, 816 S.E.2d 390 (2018).
Admission of irrelevant evidence of affair did not require mistrial.
- During a trial for felony murder while in the commission of cruelty to a child, evidence that a defendant's romantic partner did not know that the defendant was married was irrelevant; although the defendant's objection to the admission of the evidence was improperly overruled, the defendant's motion for a mistrial was properly denied because a mistrial was not mandated. Scott v. State, 281 Ga. 373, 637 S.E.2d 652 (2006) (decided under former O.C.G.A. § 24-2-2).
Identity, motive, malice, intent, plan, scheme, bent of mind, and course of conduct.
- Trial court did not err in admitting similar transaction testimony concerning defendant's use of keys to gain entry into the apartments of women, ostensibly for maintenance purposes, as the trial court's finding that the evidence was admissible to establish motive, intent, and course of conduct was not clearly erroneous. Oliver v. State, 276 Ga. 665, 581 S.E.2d 538 (2003) (decided under former O.C.G.A. § 24-2-2).
Admission of evidence of a prior attempted rape of a neighbor in defendant's rape trial involving a different victim was not an abuse of discretion since the evidence was admitted to show defendant's lustful disposition, to evince defendant's propensity to sexually assault women defendant knew, and to corroborate the victim's testimony of no consent; a finding that the probative value of the evidence outweighed the prejudicial effect of the evidence was implicit in the trial court's decision to admit the evidence. Rowe v. State, 263 Ga. App. 367, 587 S.E.2d 781 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in finding an earlier transaction sufficiently similar to the one for which a defendant was on trial and in admitting the evidence as to the prior transaction to show course of conduct, intent, and modus operandi, as, while some aspects of the earlier crime differed from the one for which the defendant was on trial: (1) the victims in both instances were young women who were strangers to the defendant; (2) both incidents occurred at night, at or near a bar; (3) the defendant approached the women from behind, brandished a weapon, threatened to kill the victims, and caused the victims physical harm; (4) both times the defendant was dressed in camouflage pants and a dark shirt; and (5) while the prior incident occurred more than 15 years earlier, the defendant had been out of jail for just over a year after serving the defendant's sentence for the similar transaction and, thus, the lapse of time was not a significant factor. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-2).
Similar transaction evidence admissible.
- Similar transaction evidence of crimes against a rape victim was properly admitted for identification purposes in the defendant's trial for assault because the witness testimony, DNA evidence, and the discovery of the rape victim's possessions in the defendant's car tied the defendant to the sexual assaults and because the assailant in both cases hid the assailant's face with a dark-colored raincoat and used the same gun. Lampkin v. State, 277 Ga. App. 237, 626 S.E.2d 199 (2006) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting similar transaction evidence to show a modus operandi as a modus operandi was similar to "course of conduct" and the state sought to admit the similar transaction for the purpose of showing course of conduct, intent, motive, and bent of mind; while the earlier crime included a sexual assault and the crimes for which the defendant was being tried did not, the addition of a sexual component to the earlier crime did not subtract from the notable similarities. The trial court's statement that "the only reason that there (was) not a sexual content to this crime (was), well, we don't know what would have happened, and certainly the event was abruptly halted, so the ruling (stood)" was made out of the presence of the jury and could not have affected the verdict. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-2).
Differences between the state's proffer of similar transaction evidence and a witness's testimony at trial were insignificant and affected neither the admissibility of the similar transaction evidence, nor the outcome of the trial, in that: (1) the state proffered that the victims were walking behind a bar, but the witness testified that the victims had passed a bar and were near a restaurant; (2) the state proffered that the defendant showed the victims a gun, but the witness testified that the witness saw the gun but not that the defendant showed the gun to the witness; and (3) the state proffered that the defendant forced both victims to remove all of their clothes, but the witness testified that the witness had to remove some of the witness's clothes. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-2).
Trial court did not commit plain error by charging the jury concerning the limited use of sexual assault extrinsic evidence admitted pursuant to O.C.G.A. § 24-4-413 because the charge was not erroneous as such evidence was admissible as relevant. Marlow v. State, 337 Ga. App. 1, 785 S.E.2d 583 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016).
Similar transaction evidence admissible despite passage of 15 years.
- Trial court did not abuse the court's discretion by admitting evidence of a past statutory rape because, although somewhat dissimilar and occurring 15 years earlier, the defendant's stated intent to attack the victim's credibility created a need for the state to use the evidence and the court gave a limiting instruction to the jury. McAllister v. State, 351 Ga. App. 76, 830 S.E.2d 443 (2019), cert. denied, No. S19C1489, 2020 Ga. LEXIS 115 (Ga. 2020).
Prior attempts by accused concerning same victim.
- Testimony concerning a prior effort by an accused to commit the same crime upon the victim for which the accused is now charged is a long recognized exception to the general rule that evidence of prior crimes is inadmissible. Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980) (decided under former Code 1933, § 38-202); Haygood v. State, 154 Ga. App. 633, 269 S.E.2d 480 (1980);(decided under former Code 1933, § 38-202).
Admission of prior child molestation plea proper.
- In a trial for rape, aggravated sodomy, and aggravated assault with attempt to commit rape, the trial court properly admitted as similar transaction evidence the defendant's prior guilty plea to a charge of child molestation; as both crimes involved forcing sexual acts upon teenage girls, a certified copy of the prior conviction sufficed to show similarity. Washington v. State, 286 Ga. App. 268, 648 S.E.2d 761 (2007) (decided under former O.C.G.A. § 24-2-2).
Character evidence was admissible in the following case.
- Dalton v. Jackson, 66 Ga. App. 625, 18 S.E.2d 791 (1942) (character in civil action for rape) (decided under former Code 1933, § 38-202).
Evidence of other conduct or crimes was admissible in the following cases.
- See McMichen v. State, 62 Ga. App. 50, 7 S.E.2d 749 (1940) (sexual offenses) (decided under former Code 1933, § 38-202); Andrews v. State, 196 Ga. 84, 26 S.E.2d 263; 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468 (1943), cert. denied, Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955), overruled on other grounds, Warren v. State, 95 Ga. App. 79, 97 S.E.2d 194 (1957); Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979)(rape) (decided under former Code 1933, § 38-202); Allen v. State, 152 Ga. App. 481, 263 S.E.2d 259 (1979) (prior rape of same victim in assault with intent to rape case) (decided under former Code 1933, § 38-202);(sexual offenses) (decided under former Code 1933, § 38-202);(prior rape of victim by same defendant in rape case) (decided under former Code 1933, § 38-202).
Evidence of other conduct or crimes was inadmissible in the following case.
- See Scott v. State, 46 Ga. App. 213, 167 S.E. 210 (1932) (rape) (decided under former Penal Code 1910, § 1019).
Trial court disagreed that the other acts evidence was especially probative of the credibility of the defendant and the victim, given the lack of similarity between the other acts evidence of child molestation and the charged offense of rape, the decade separating the other acts from the charged offense, and the defendant's immaturity at the time the other acts were committed; however, the trial court believed that, under the circumstances, admitting extrinsic evidence of acts of alleged child molestation would lure the jury into finding the defendant guilty based on proof that was not specific to the crime charged, thereby infecting the proceedings with unfair prejudice and undermining the presumption of innocence. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).
Cited in In the Interest of P. T., 353 Ga. App. 511, 838 S.E.2d 596 (2020); Sturgis v. State, Ga. App. , 842 S.E.2d 82 (2020); Shaum v. State, 355 Ga. App. 513, 844 S.E.2d 863 (2020).
RESEARCH REFERENCES
ALR.
- Remoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offense, 88 A.L.R.3d 8.
Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with persons other than the accused, 97 A.L.R.3d 967.
Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix, 2 A.L.R.4th 330.
Modern status of rule regarding necessity for corroboration of victim's testimony in prosecution for sexual offense, 31 A.L.R.4th 120.
Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, 71 A.L.R.4th 469.
Validity, construction, and application of Fed. R. Evid. 413 permitting admission in prosecution for sexual assault of evidence of defendant's commission of other sexual offense, A.L.R. Fed. 2d 577.