Aрpellant was convicted by a jury of one count of child molestation, two counts of criminal attempt to commit rape and one count of simple battery. He appeals from his sentence and from the trial court’s denial of his motion for new trial.
1. In his first enumeration, appellant contends that the trial court erroneously admitted evidence of a similar transaction. Appellant was
The trial court first held a hearing outside the presence of the jury, at which the prosecution argued that the incident with the sister was admissible to show the lustful disposition of appellant and that the incident was sufficiently similar to the crimes for which appellant was being tried to be admissible. The court agreed and found the incident sufficiently similar and admissible for the purposes advanced by the State. See
Williams v. State,
On appeal, appellant argues that the sister’s testimony was not admissible for any permissible purpose, and it was not sufficiently similar to the crimes on trial to be admitted. Appellant raises the following differences: the sister alleged penetration, whereas the daughter never alleged penetration; the sister stated that the contact occurred only once, whereas the daughter alleged continuing acts; and the age difference between the sister and appellant was much less than the age difference between appellant and his daughter. Appellant also emphasizes the 16-year time span between the alleged transaction and the crimes on trial.
“ ‘The exception to the general rule that evidence of independent [transactions] is inadmissible has been most liberally extended in the area of sexual offenses.’ [Cit.] ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testi
2. Appellant’s next enumeration of error involves a note written between appellant’s daughter and one of her high school classmates. The note contains statements allegedly written by appellant’s daughter in which she recounts sexual experiences with one of the State’s witnessеs, Glen Cunningham (“Cunningham”). At trial, the daughter denied writing parts of the note and did not remember writing other parts of the note. Further, she admitted that the statements in the note regarding her relationship with Cunningham were not true. Appellant attempted to inquire of thе daughter and other State witnesses as to the past sexual experiences of the daughter with Cunningham and others in an effort to show that the daughter had previously made false statements regarding sexual contact with certain persоns. The trial court allowed appellant to question the witnesses regarding the falsity of the note but restricted questioning as to the daughter’s past sexual history pursuant to the Rape Shield Statute, OCGA § 24-2-3. On appeal, appellant argues thаt the court
3. Appellant next contends that the court erred in preventing an expert witness, a school counselor, frоm testifying as to whether the victim exhibited normal behavior when she reported the molestation. The record reveals that the witness was not offered by the State as an expert witness and was not questioned by the State regarding areas оf expertise. The witness stated that she had a degree in counseling and she counselled students on career, educational and personal matters. She further stated that she had spoken to students who had been sexually molested оn three other occasions. The witness testified as to what she observed when the victim told her about the molestation, but on cross-examination defense counsel further inquired as to whether the victim’s behavior was “normal.” The trial court did not err in disallowing such inquiries to a witness who was not qualified as an expert. “ ‘[T]he trial judge has a discretion in accepting or rejecting the qualifications of the expert, and his judgment in that respect will not be disturbed on appeal unless abused. . . .’ [Cit.]”
Taylor v. State,
4. Appellant asserts that the trial court erred in preventing him from testifying about the circumstances surrounding his divorce and separation from his first wife. Appellant argues that his strictness with his daughter was a result of the behavior of his first wife and that his daughter fаbricated the allegations of molestation in order to escape the strict household. Trial testimony as to the strictness of appellant and his household was not limited; however, the court ruled that an exploration of aрpellant’s relationship with his first wife was not relevant and was not necessary to establish appellant’s theory. “The admission of evidence is a matter which rests within the discretion of the trial court. [Cits.]”
Elrod v. State,
5. In his next enumeration of error, appellant contends that the evidence was insufficient to sustain the verdict. We disagree. The vie
6. The final enumeration raised by appellant alleges that the trial court erred in denying appellant’s motion for new trial on the basis of newly discovered evidence. At the hearing on the motion for new trial, appellant presented several witnesses who testified that, after the trial, the victim recanted her testimony. The witnesses were appellant’s wife, mother-in-law, sister-in-law and a private investigator who had talked to the victim — the victim did not testify or present any statement to the court. It is well established that in order to be granted a new trial on the basis of newly discovered evidence, a defendant must show, among other things, that the evidence is so material that it would probably produce a different verdict, that it is not cumulative only, and that it will have an effect other than to impeach the credit of a witness.
Merka v. State,
Judgment affirmed.