EUBANKS v. THE STATE.
A15A0473
Court of Appeals of Georgia
JUNE 18, 2015
(774 SE2d 146)
DOYLE, Presiding Judge.
Haddad Law Group, Juwayn N. Haddad, for appellant. Russell S. Thomas, Solicitor-General, for appellee.
ingly, Scott has failed to show that the trial court erred by refusing to give her requested charge.4
6. Lastly, Scott contends that her trial counsel rendered ineffective assistance of counsel when he failed to object to other instances5 of Trooper Bailey‘s testimony that she contends also went to the ultimate issue of whether Scott was impaired to the extent that she was less safe to drive. However, as we held in Division 3, such testimony was admissible; it therefore follows that Scott‘s trial counsel was not ineffective for failing to make a meritless objection. E.g., Bonner v. State, 295 Ga. 10, 14 (2) (b) (757 SE2d 118) (2014) (defendant failed to establish ineffective assistance because he failed to show that a motion for mistrial would have been meritorious); Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010) (trial court did not perform deficiently by failing to make a meritless objection).
Judgment affirmed. Barnes, P. J., concurs. Ray, J., concurs in Divisions 1, 3, 4, 5 and 6, and in judgment only in Division 2.
DECIDED JUNE 18, 2015.
Following his conviction for child molestation,1 Roy Lucius Eubanks appeals from the denial of his motion for new trial. He contends that (1) the trial court erred by admitting evidence of a prior act of molestation because the probative value was substantially outweighed by its unfairly prejudicial effect, (2) the trial court errone-
ously charged the jury regarding the prior bad act evidence, and (3) the evidence was insufficient to prove intent. Finding no error, we affirm.
“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence.”2 So viewed, the evidence shows that 11-year-old M. T.‘s family began living with Eubanks, a relative. One night, Eubanks invited M. T. and her two younger siblings to sleep in his bedroom while he slept in the living room. As M. T. was falling asleep, she felt Eubanks penetrate her vagina with his finger. Despite M. T.‘s protest, Eubanks did not stop until M. T.‘s stepfather happened to emerge from a nearby bedroom. At that point, Eubanks left his bedroom and resumed watching television in the living room.
The following day, M. T. reported the abuse to her stepfather, who took M. T. to see her great aunt, whom he knew to be “good with kids.” M. T. then described the abuse in more detail to the great aunt, who contacted the Department of Family and Children Services the following Monday morning. Based on an investigation by the sheriff‘s department, including a forensic interview, Eubanks was arrested and charged with one count of child molestation. Eubanks was tried and found guilty by a jury, and his motion for new trial was denied, giving rise to this appeal.
1. Eubanks contends that the trial court erred by admitting evidence pursuant to
to the time she was twelve years old, ending approximately seventeen years prior to Eubanks‘s trial in this case. Eubanks argues that this evidence, while relevant, should have been excluded under
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.4
Here, the circumstances of the prior molestation were that Eubanks molested a niece during times she visited her father, who was Eubanks‘s brother. The age of the victim during the abuse overlapped with the age of the victim in this case, and the manner of abuse was the same. These similarities make “the other offense highly probative with regard to the defendant‘s intent in the charged offense.”5 Further, in the face of Eubanks‘s attacks on the victim‘s credibility, the State was able to use the evidence to show that Eubanks had a motive of seeking nonconsensual sexual contact with a minor, which was important in this case because the victim only complained of a single, isolated incident.6 Although somewhat remote in time, the remoteness itself did not require exclusion because of the similarity of the events and the resulting probative value of the challenged evidence.7 Finally, the trial court gave a limiting instruction to mitigate the risk of undue prejudice, reminding the jury “to keep in mind the limited use and the prohibited use of this evidence about the other acts of the defendant.” Under these circumstances, we discern no abuse of the trial court‘s discretion in admitting the evidence of Eubanks‘s similar prior sexual misconduct against a minor victim.
2. Eubanks next contends that the trial court erroneously instructed the jury that it could consider the evidence of his prior molestation to
show a “disposition to commit the act of child molestation.” “On appeal, we read the jury charges as a whole to determine the presence of any error.”8
Eubanks argues that the court‘s charge invited the jury to make an improper inference as to his character. But the General Assembly‘s recent adoption of the new Evidence Code belies this argument. In child molestation cases, the new Code explicitly provides that “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.”9 Courts interpreting this language10 have concluded that, in this specific context, showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that
3. Finally, Eubanks contends that the evidence was insufficient to prove that he acted with the intent to arouse or satisfy his own or
the victim‘s sexual desires.12 We disagree.
Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this. While a person is not presumed to act with criminal intention, intent is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.13
Further, when an appellate court reviews the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder‘s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.14
As noted above, there was properly considered evidence showing that Eubanks had a disposition to sexually molest underage girls, especially in the same particular manner of which he was accused here. Further, there was evidence supporting an inference that Eubanks attempted to conceal his behavior by ensuring the victim would be in his own bedroom and stopping when interrupted by another household member awakening. These facts, along with the victim‘s unheeded protests, were sufficient to prove the requisite intent for the charged offense.15 Based on the record before us, this enumeration presents no basis for reversal.
Judgment affirmed. Phipps, C. J., and Boggs, J., concur.
DECIDED JUNE 23, 2015.
Tobe C. Karrh, for appellant.
S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.