MAQROUF v. THE STATE.
A18A1850
In the Court of Appeals of Georgia
March 6, 2019
DOYLE, Presiding Judge.
FOURTH DIVISION. DILLARD, C. J., DOYLE, P. J., and MERCIER, J. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules. DO-058 C
Following a jury trial, Mohammed Azozz Maqrouf was convicted of cruelty to a child in the first degree for kicking his daughter.1 He appeals the denial of his amended motion for new trial, arguing that the trial court erred (1) by admitting evidence that Maqrouf subsequently molested another daughter; and (2) by refusing to charge the jury on the lesser-included offense of second-degree cruelty to a child. For the reasons that follow, we reverse.
On appeal from a criminal conviction, the defendant is no longer presumed innocent[,] and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. So long as
So viewed, the evidence shows that Maqrouf and his wife, Zahoor, have two daughters. On June 15, 2012, Zahoor brought the girls — five-year-old S. M. and their two-year-old — to the gas station that she owned, and while there, she and Maqrouf argued. S. M. began to cry and urged Zahoor to leave, saying “let‘s go.” Maqrouf told Zahoor to “make this little bitch [be] quiet,” and kicked S. M. in the stomach, causing her to land against the wall across the room. When she tried to intervene and protect S. M., Maqrouf slapped Zahoor in the face and struck her in her back. When Zahoor attempted to gather the girls to return home, Maqrouf grabbed the two-year-old and threatened to snap her neck if Zahoor reported the incident to the police.
Zahoor did not call the police immediately after the incident. Instead, a day or two later, she called a detective with whom she was familiar after she saw Maqrouf enter their two-year-old daughter‘s room in the middle of the night, get into bed with the child, and then “ejaculate[] himself” with one hand while fondling his daughter
Maqrouf was charged with first-degree cruelty to S. M. and family violence battery against Zahoor.3 Zahoor and S. M. testified about the incident, and the State introduced photographs Zahoor took depicting bruises on her hand and on S. M. Zahoor also testified about multiple incidents of domestic violence committed by Maqrouf against her over a ten-year period, explaining that although she sometimes called the police, she usually recanted the allegations because her children “needed their father in their life.”
Despite counsel‘s advice to the contrary, Maqrouf testified, insisting that both S. M.‘s and Zahoor‘s testimonies about the June 15 incident were “lies” and suggesting that Zahoor fabricated the accusations to get back at him for issues regarding money and her family.
The jury found Maqrouf guilty of first-degree cruelty to a child, and he was sentenced to twenty years to serve the first ten in prison and the remainder on
1.
Maqrouf argues that the trial court erred by admitting Zahoor‘s testimony that she observed him molesting their two-year-old daughter a day or two after the incident giving rise to the charges in the instant case as evidence of prior difficulties. We agree, and, tellingly, the State offers no argument in response to Maqrouf‘s challenge to the admission of the subsequent child molestation accusation.
Before trial, defense counsel moved in limine “to exclude any and all testimony about the pending [child molestation] charges of my client that he has in Clayton County,” arguing that “it would be highly prejudicial and character evidence[,] as he has not been convicted of these charges yet.” The State countered that the evidence was admissible under
The trial court asked the prosecutor whether “the victim is the same in both cases,” and the prosecutor responded, “Yes.” The court then denied the motion in limine, stating: “I‘m going to find that the Clayton County conduct is relevant and that the probative value is not substantially outweighed by its undue prejudice and admit the prior difficulty evidence over objection.” Although the court did not specify the purpose for admitting the evidence in its ruling, it later gave the jury the pattern charge on prior difficulties, as requested by the State:
Evidence of prior difficulties between the defendant and the alleged victim has been admitted for the sole purpose of illustrating, if it does, the state of feeling between the defendant and the alleged victim. Whether this evidence illustrates such matters is solely a matter for you, the jury, to determine, but you are not to consider such evidence for any other purpose.5
(a) Pursuant to Rule 404 (b), although evidence of other acts is inadmissible to show an accused‘s propensity to commit a crime, it may “be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”7 The State is not required to give notice of the defense in advance of trial “when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.”8
Evidence of prior difficulties between an accused and a victim is a type of character evidence which should be received with care and should not be admitted at all if there is no probative connection with the present case. For there to be a probative connection between the prior difficulties and the present case, there must be: some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties.10
Although the Supreme Court of Georgia has affirmed the admission of prior difficulties between the defendant and a person other than the victim in the charged case, the Court explained that such evidence was admissible “to draw together the preceding and subsequent acts and give color of cause and effect to the transaction
“We review a trial court‘s decision to admit evidence of prior difficulties between the parties for a clear abuse of discretion.”13 But if “a trial court‘s ultimate ruling is subject to only an abuse of discretion review, the deference owed the trial court‘s ruling is diminished when the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree.”14 Because the prosecutor in this case (presumably mistakenly) misled the trial court by stating that the victim in the molestation case was the same child as the victim in the instant case,
Here, Maqrouf‘s sexual molestation of his two-year-old daughter a day or two after his preceding act of kicking five-year-old S. M. during an argument with his wife are not a “continuous course of conduct,” nor does evidence of the molestation shed light on the Maqrouf‘s motives or his conduct towards S. M. Instead, they are unrelated acts.
Pretermitting whether the evidence was relevant, however, it does not satisfy the requirements of
Here, although the two acts occurred within a day or two of each other, they are not similar. Although both acts were committed against his young daughters, one involved kicking the five-year-old while arguing with his wife, and the other was an act of sexual molestation against his younger daughter. And contrary to the State‘s argument, Zahoor‘s testimony that she was only motivated to report the assault against S. M. after witnessing him molest their other daughter is not probative of whether he committed the charged crime against S. M. Further, Zahoor was allowed to testify as to a pattern of family violence explaining why she delayed calling the police. Therefore, the State has not demonstrated a need for the similar act evidence, and the probative value of the subsequent molestation was minimal.
Having so concluded, we must now weigh the extremely low probative value of the evidence against the danger of unfair prejudice.
one of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense, because the jury may feel that the defendant should be punished for that activity even if [he] is not guilty of the offense charged. Indeed, the major function of Rule 403 is to exclude matters of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. And [any time evidence of a separate] crime is admitted into evidence, there is a prejudicial effect. Here, because the probative value of [Maqrouf‘s] subsequent [molestation of his other daughter] was minimal given all the attendant circumstances, the danger of interjecting unfair prejudice was a greater risk.17
This is particularly true here, in light of the nature of the crime Maqrouf allegedly committed against his two-year-old daughter.
(b) Having determined that the trial court erred by admitting evidence that Maqrouf subsequently molested his two-year-old daughter, we must now review the record de novo to determine whether the error was harmless.18
Here, although both Zahoor and S. M. testified that Maqrouf kicked S. M., and the State introduced photographs of bruises on S. M., Maqrouf denied the charges at trial.20 Furthermore, the jury acquitted him of family violence battery against Zahoor, despite her testimony that he slapped and struck her. And Zahoor‘s testimony that she observed Maqrouf molesting their two-year-old, as well as her “suspicions” about his inappropriate feelings towards the child, “was extremely prejudicial in the eyes of the jury. Based on this record, we cannot conclude it is highly probable that the erroneous
Because the evidence was sufficient to support Maqrouf‘s conviction, however, he may be retried.22
2.
In light of our holding in Division 1, Maqrouf‘s remaining enumeration is moot.
Judgment reversed. Dillard, C. J., and Mercier, J., concur.