In
Pareja v. State,
As set forth in the Court of Appeals opinion, the relevant facts of this case are as follows:
Pareja and his wife were friends with Grace Chamorro. In November 2005, Chamorro’s five-year-old daughter, N. O., told her that “Uncle Joaquin” had “cleansed” her vagina the preceding day. According to Chamorro, N. O. stated that she felt “shameful” and told her mother not to *118 tell anyone about the incident. When Chamorro inquired further, N. O. stated that Pareja cleaned her “hundreds” of times and told her that “when little children are cleansed, it is normal for them to itch, and because of itching[,] they will laugh.” N. O. demonstrated to her mother that Pareja cleaned her while she was on her hands and knees on the bed and also while she was on her back with her legs spread.
Chamorro took N. O. to Dr. Meghan Nicolini, a private psychologist. Nicolini testified that N. O. told her that her uncle “wiped her private parts a hundred times,” initially with his hands and then with a towel. Nicolini asked N. O. whether Pareja “might have been cleaning her,” and the child responded, “No.” N. O. also told her that she tried to move away from Pareja during the incident(s), but he pulled her legs and instructed her to remain still. Nicolini contacted the Department of Family and Children Services, who assigned case manager Araina Williams to the investigation. Williams interviewed Pareja, and he told her that he wiped N. O. “to clean her” after she complained to him that she was “itchy.”
N. O. testified at trial, stating that Pareja touched her “in the private” with his hand and with a towel after she told him that she was itching. She told Pareja to stop, but he refused. During the trial, the child demonstrated the touches on a doll, opening the doll’s legs and rubbing its vaginal area with her fingers. The State also played the videotaped forensic interview of N. O. for the jury.
At trial, Pareja testified that he used a wet towel to clean N. O.’s buttocks and vaginal area after she had a soft bowel movement. Pareja denied using his bare fingers or touching N. O. improperly.
The State also presented similar transaction evidence. D. R., who was friends with one of Pareja’s daughters as a child, testified that she spent the night at Pareja’s home when she was 12 years old. D. R. awoke and realized that Pareja’s fingers were inside her vagina; he left the room after D. R. screamed. In another incident, Pareja awakened D. R., took her into the bathroom, and forced her to masturbate him and to perform oral sex. According to D. R., she never told anyone about the incidents until Pareja’s daughter called to tell her that her father had been accused of child molestation.
Id. at 872-873. The acts which were introduced as similar transaction evidence occurred approximately 26 years prior to Pareja’s convic *119 tion in this case. Id. at 873 (2).
The procedural guidelines for determining whether evidence of a prior act may be admissible as similar transaction evidence are well established. In general, evidence of independent offenses committed by a defendant is irrelevant and inadmissible in a trial for a different crime.
Stephens v. State,
Before evidence of prior crimes is admissible, the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.
(Citation omitted.)
Palmer v. State,
In cases in which the similar transaction evidence is remote in time, however, additional considerations are required. As a general rule, “the lapse of time generally goes to the weight and credibility of the evidence, not to its admissibility. [Cits.]”
Swanson v. State,
In some circumstances, similar transaction evidence of alleged crimes may be so remote in time that any probative value it might otherwise have cannot overcome the prejudice caused to the defendant. In other words, the passage of time, though not wholly determinative of the admissibility of the similar transaction evidence, becomes the deciding factor. We recognized this principle in
Gilstrap v. State,
In Womack v. State,260 Ga. 21 , 22 (4) (389 SE2d 240 ) (1990), we quoted from Sears v. State,182 Ga. App. 480 , 482 (356 SE2d 72 ) (1987), as follows: “The purpose of a statute of (limitation) is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanction. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. ...” A like rationale applies to the admission of “similar transaction” evidence, and is the basis for excluding evidence of events that are [too] remote in time.
Gilstrap,
supra,
In reviewing the trial court’s decision to admit the similar transaction in this case, we must be mindful that this decision should be upheld unless it is an abuse of discretion.
Abdullah v. State,
[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. This rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.
(Citations and punctuation omitted.)
Payne v. State,
Judgment affirmed.
Notes
This does not mean, however, that the remoteness determination for similar transaction evidence must be strictly correlated to statutes of limitation for the underlying crimes being offered as similar transactions. This is true because a defendant is not being tried for the similar transaction and does not face present punishment for commission of the prior act.
These considerations do not apply to similar transaction evidence of prior crimes for which a defendant has been convicted. In such cases, the defendant would have had the ability to pursue the facts and perfect a record of the surrounding events at the time that he was tried or entered a guilty plea to the prior act.
See, e.g.,
Wright v. State,