The STATE v. McPHERSON
341 Ga. App. 871
Ga. Ct. App.2017Background
- Defendant Dr. Kenneth McPherson, a child psychologist, was indicted on multiple counts of child molestation and one count of sexual exploitation based on alleged conduct toward several children.
- The State sought to introduce similar-transaction evidence: an alleged molestation of a boy by McPherson between 1979–1981 (when McPherson was ~22–24) reported to the DA after media publicity.
- The prosecutor learned of the report shortly before trial (late Feb. 2016), filed a notice of intent, and interviewed the alleged prior victim, who described grooming, exposure, and sexual contact.
- McPherson moved to exclude the prior-act evidence as too remote and as untimely noticed; the trial court granted exclusion without stating its reasons.
- On appeal the State argued the evidence was admissible under OCGA § 24-4-414(a) (statutory rule of inclusion for prior child-molestation offenses) and necessary to rebut anticipated defenses (e.g., benign therapeutic explanation, absence of intent).
- The Court of Appeals reversed, holding the exclusion was an abuse of discretion given the statutory presumption favoring admission, the close similarity of acts, and lack of demonstrated unreliability or undue prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by excluding prior child-molestation acts under OCGA § 24-4-414(a) | The State: § 24-4-414(a) creates a strong presumption of admissibility for prior child-molestation evidence relevant to intent, plan, disposition, etc. | McPherson: prior acts too remote (≈35 years) and State’s notice was untimely/insufficient. | Reversed: exclusion was an abuse of discretion; evidence admissible under § 24-4-414(a) given similarity, probative value, and no showing of unreliability or substantial unfair prejudice. |
| Whether remoteness (time lapse) mandates exclusion | The State: remoteness alone does not bar admission; probative value and reliability govern. | McPherson: 35-year lapse undermines relevance/reliability. | Held: temporal gap does not automatically preclude admission; courts assess remoteness case-by-case and may admit even very old similar acts. |
| Whether OCGA § 24-4-403 balancing should override § 24-4-414(a) presumption | The State: § 24-4-403 applies but must be applied in light of the strong inclusionary rule; exclusion is extraordinary and used sparingly. | McPherson: evidence would be unfairly prejudicial and confuse jury. | Held: § 24-4-403 balancing did not show probative value was substantially outweighed by unfair prejudice; admission favored. |
| Whether defendant preserved challenge to sufficiency/vagueness of State’s proffer | The State: N/A on appeal. | McPherson: proffer was vague/insufficient. | Held: Issue waived—McPherson did not raise sufficiency/vagueness in trial court, so cannot raise it on appeal. |
Key Cases Cited
- Olds v. State, 299 Ga. 65 (probative value, remoteness, and extraordinary nature of exclusion under § 24-4-403)
- Eubanks v. State, 332 Ga. App. 568 (statutory rule of inclusion under § 24-4-414 and admissibility to show disposition)
- Steele v. State, 337 Ga. App. 562 (discussing strong presumption favoring admission of prior sexual-offense evidence)
- Williams v. State, 328 Ga. App. 876 (application of § 24-4-403 balancing and relation to Federal Rule 403 principles)
- Pareja v. State, 286 Ga. 117 (three-part test historically applied for similar-transaction evidence and admissibility despite long lapse of time)