A jury fоund George C. Gilham guilty of aggravated child molestation (OCGA § 16-6-4 (c)). Gilham appeals from the judgment of conviction and denial of his motion for new trial. For rеasons which follow, we affirm.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and thе defendant no longer enjoys the presumption of innocence.
Price v. State,
“Before any evidence of an independent offense may be intro
*238
duced, the state must show 1) that the evidence is relevant for some purрose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; 2) that there is sufficient evidence to establish that the accused committed the independent offense or act; and 3) that there is sufficient connеction or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove thе latter.” (Citation and punctuation omitted.)
Ramsey v. State,
The trial court held a
Jackson-Denno
hearing regarding the admission of the custodial statement given in the prior offense. See
Jackson v. Denno,
At trial, Officer Young testified in detail about the questions Gilham posed to her before he gave the statement. Gilham indicated some concern about his ability to read and write, “because he’d only gone through part of the ninth grade and that was in special education.” More specifically, Gilham signed a waiver fоrm that included the following statements: “I freely and voluntarily waive my right to an attorney. I’m willing to make a statement to the officers. I can read and write the English language and fully understand my rights to an attorney. I have read this waiver of counsel and fully understand it.” Young testified that she believed Gilham understood the rights that she reviewed with him. The trial court allowed the transcript of the statement to be read to the jury. In the statement, Gilham admitted touching and rubbing the vaginal area of the vie *239 tim, who was in either kindergarten or first grade at the time. The offense occurred while Gilham was alone with her in the living room of the house. Although the act occurred when Gilham was 12 or 13 years old, he was 18 years old when he provided the statement.
Viewed in a light most favorable to the verdict, thе victim of the independent offense, who was fourteen years old at the time of trial, testified that when she was four or five years old, Gilham touched her anal area under her clothes with his hand while they were in the living room. This similar offense occurred nine years before the charged offense.
1. In his first enumeration of error, Gilham contends that the trial court erred in admitting evidence of the similar transaction because it allegedly occurrеd approximately nine or ten years before the instant case and because he was a juvenile, approximately twelve or thirteen years old when it occurred.
“Lapse of time ‘does not render the evidence automatically inadmissible . . . (but) is a factor to be taken into сonsideration when balancing the probative value of the evidence against its potentially prejudicial impact.’ ”
Willett v. State,
Neither does the fact that Gilham was a juvenile render the similar offense inadmissible. In
Stephens v. State,
In the similar offense at issue here, Gilham was either twelve or thirteen years old when he committed the sexual act on his stepsister who was either four or five years old. In his statement, Gilham admitted that he knew the difference between “a good touch and a bad touch,” and that he was embarrassed by the act committed against his stepsister and “went to the bathroom” to “finish.” Gilham also admitted that he had sought “revenge” against another person who had tried to touch him in a bad way. “Given [Gilham’s] age and his obvious understanding of the [sexual act committed], his [actions were] not the faultless act[s] of an innocent child. Accordingly, we hold that neither [Gilham’s] age at the time of the similar transaction nоr the time span between the incidents renders the testimony inadmissible.” Stephens, supra at 404 (1).
2. In his second enumeration of error, Gilham contends that the trial court impropеrly admitted evidence of the custodial statement *240 he gave to Officer Young regarding the independent offense because the evidencе showed that his limited education prevented him from freely and voluntarily providing the statement.
“The question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answerеd by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citations and punctuation omitted.)
Reynolds v. State,
Here, our review of the trial court’s
Jackson-Denno
hearing shows that the court’s factual finding that Gilham’s statement was freely and voluntarily made is clearly authorized by the evidence. See
Brooks v. State,
Judgment affirmed.