615 S.E.2d 576 | Ga. Ct. App. | 2005
Robert Wade Eaton was convicted of two counts of child molestation for exposing his sexual organ to A. D. and A. M. He appeals, contending that the trial court erred in admitting certain evidence. Because Eaton has shown no reversible error, we affirm.
The evidence further showed that on June 2, 2003, when A. M. was 12 years old, a man driving a car similar to the one photographed in the state’s Exhibit 1 drove near her as she was walking in her neighborhood. The man asked her, “Hey you want to see something?” A. M. recalled that the man then raised his body and “flashed his ding-a-ling at me.” A. M. identified Eaton as the man who had exposed himself to her from a police photographic lineup and again in court.
The state presented evidence that Eaton had committed similar transactions against four other girls. K. S. testified that in May 2003, a man driving a car similar to the one shown in the state’s Exhibit 1 drove near her as she was walking to her bus stop. K. S. was nine years old. K. S. recalled that the man asked her how old she was and then immediately pulled down his pants, raised his body, and exposed to her his “private part.” K. S. identified Eaton as that man in a police photographic lineup and in court.
N. T. testified that in August 1994, when she was 11 years old, a man approached her in a store, lifted his shirt, and exposed his penis, which was hanging out of the open fly of his pants. She identified Eaton in court as the man who had exposed himself to her.
K. R. testified that in August 1994, she and her cousin, B. R., were playing outside. K. R. was ten years old, and B. R. was nine. A man twice drove by in a van — slowly, wearing no clothes, with his body “propped up,” and masturbating. K. R. identified Eaton in court as that man. B. R. described the incident, but could not identify the perpetrator.
1. Eaton contends that the trial court erred by allowing the state to reveal to the jury that his photograph had been posted on the website for the state’s sexual offender registry.
At a pretrial hearing, Eaton’s attorney advised the court that K. S. had identified Eaton from a photograph of him that her stepmother had printed from the registry. The attorney sought a ruling that there be no mention of the registry or that he had a criminal record. The court ruled, “[N]o reference is to be made [that] he’s a registered sex offender or [to] his prior convictions except as may become relevant during the trial.” The court further directed the state to caution its witnesses “not to say anything other than [that the stepmother had]
On direct examination, K. S. identified Eaton in court and confirmed that she previously had identified him from a police photographic lineup. On cross-examination, defense counsel asked K. S. whether she had seen a picture of Eaton before she viewed the police photographic lineup, and K. S. answered that she had. On redirect, the state established that it was K. S.’s stepmother who had shown her Eaton’s photograph and that the photograph had been included among photographs of other persons. K. S.’s stepmother later testified that she had obtained all the photographs from “the computer.”
The trial court did not abuse its discretion in its rulings.
2. Eaton contends that the trial court erred by admitting as a similar transaction the incident involving N. T., arguing that it was insufficiently similar to the charged offenses. Before similar transactions may be admitted into evidence, the state must make three affirmative showings: (1) that it seeks to introduce the evidence for an appropriate purpose; (2) that there is sufficient evidence to show that the accused committed the independent offense or act; and (3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged such that proof of the former tends to prove the latter.
Specifically, Eaton argues that the N. T. incident was insufficiently similar to the charged offenses because the former, unlike the latter, occurred inside a retail establishment. Eaton, however, ignores the obvious similarities among the three incidents. In all three, Eaton approached a girl, under the age of sixteen, in a public place,
There is no requirement that a similar transaction be identical to the charged offenses.
3. Eaton contends that the trial court erred by admitting in evidence certified copies of his convictions for committing child molestation upon N. T., K. R., and B. R. He claims that the fact that he had a criminal record had no bearing on any issue for the jury and that evidence of the convictions served only to impugn his character.
One of the affirmative showings that the state must make before introducing similar transaction evidence is that the accused committed the independent act.
4. Eaton contends that the trial court erred by allowing the state to introduce in evidence three of the similar transactions because they had been listed in a notice separately filed by the state three days before the state filed notice of the fourth similar transaction. At the similar transaction hearing, the prosecuting attorney explained that
Eaton cites no case law or statute to support his assertion, and we find none. Although he cites Uniform Superior Court Rule (USCR) 31.3, he has not shown that rule was violated here. It pertinently provides that a notice of the state’s intention to present evidence of similar transactions “shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced.” The purpose of USCR 31.3 is to provide a criminal defendant adequate notice of the state’s intent to use similar transactions to enable him to resolve questions regarding admissibility of such evidence before trial.
Eaton does not argue that either notice failed to comply with USCR 31.3. Nor does he argue that he did not receive one of the notices. In fact, the transcript reveals that at the similar transaction hearing, where the state expressly sought the court’s ruling that all four transactions were admissible, Eaton’s counsel conceded, “I’ve been served with two Notice [s] of Intent to present evidence of similar transactions.”
Judgment affirmed.
See Blevins v. State, 270 Ga. App. 388, 392 (3) (606 SE2d 624) (2004) (appellate court will not disturb a trial court’s decision to admit such evidence absent an abuse of discretion).
Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).
See Everhart v. State, 209 Ga. App. 82 (1) (432 SE2d 670) (1993).
De’Mon v. State, 262 Ga. App. 10, 13 (2) (584 SE2d 639) (2003).
Ellerbee v. State, 247 Ga. App. 46, 50 (2) (a) (542 SE2d 146) (2000).
See id. at 50-51; Williams v. State, 263 Ga. App. 22, 24 (2) (587 SE2d 187) (2003) (absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible).
Williams v. State, supra, 261 Ga. at 642.
Shuman v. State, 244 Ga. App. 335, 337 (3) (535 SE2d 526) (2000) (citations omitted).
Ellerbee, supra at 51 (2) (b).
See Shuman, supra.
Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988).
(Emphasis supplied.)