Ewell v. State
318 Ga. App. 812
Ga. Ct. App.2012Background
- Ewell was convicted of seven counts of aggravated child molestation based on sexual acts with three boys from 2004–2009.
- Following an amended motion for new trial, the trial court merged Counts 2 into 1 and Counts 5 into 4; other rulings denied.
- Ewell appeals on three issues: admission of similar transaction evidence, failure to charge sodomy as a lesser included offense, and sentencing-related errors.
- Evidence shows Ewell engaged in oral/anal sex with A. L., J. L., and N. S., including filming acts and using pornography; many acts occurred in a barn or camper.
- Patterned grooming and repeated sexual conduct with the victims established a basic bent of mind supporting the charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of similar transaction evidence | Ewell contends prejudicial impact outweighs probative value | State argues evidence shows bent of mind and pattern of conduct | court did not abuse discretion; evidence admissible |
| Sodomy as a lesser included offense | Ewell requested sodomy instruction | State maintained aggravated child molestation required | no error; no evidence for lesser offense presented |
| Ex post facto as to Counts 1 and 3 | Life sentences improperly applied to pre-amendment conduct | Amendment applies prospectively; could not convict prior acts | vacate Counts 1 and 3; remand for resentencing |
| Ex post facto as to Counts 4–7 | Dates tied to statute of limitations; life terms controversial | Evidence shows acts after 2006 amendment | no ex post facto violation; post-amendment application supported |
Key Cases Cited
- Norris v. State, 230 Ga.App. 492, 493 (1) (496 SE2d 781) (1998) (Ga. App. 1998) (admissibility of similar transaction evidence based on pattern of conduct)
- Waters v. State, 303 Ga.App. 187, 188, 190 (2) (692 SE2d 802) (2010) (Ga. App. 2010) (prior conviction evidence admissible to show pattern of conduct)
- Linto v. State, 292 Ga.App. 482, 486 (4) (664 SE2d 856) (2008) (Ga. App. 2008) (no error denying request to charge lesser offense in certain contexts)
- Pareja v. State, 286 Ga. 117, 121 (686 SE2d 232) (2009) (Ga. 2009) (similar transaction evidence admissible across genders and acts)
- Forde v. State, 289 Ga. App. 805, 810-812 (2) (658 SE2d 410) (2008) (Ga. App. 2008) (ex post facto analysis when offenses span amendments)
- Gentry v. State, 212 Ga. App. 79, 83 (4) (441 SE2d 249) (1994) (Ga. App. 1994) (ex post facto considerations in sentencing)