Smith v. State
206 Ga. App. 557
Ga. Ct. App.
1992
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SMITH v. THE STATE

No. A92A1491

Court of Appeals of Georgia

DECIDED NOVEMBER 19, 1992

RECONSIDERATION DENIED DECEMBER 2, 1992

207 Ga. App. 557 | 426 SE2d 23

ANDREWS, Judge.

, should be overruled not for the reason stated by the majority but because it conflicts with federal law.

Congress provided an exclusive remedy for Truth in Lending violations in 15 USC §§ 1610 (d), 1640 (a), 1667d (a). See ; see also 12 CFR § 213.8 (c). Voiding the contract as a penalty for a Consumer Leasing Act violation is not a remedy included within the federal statutory scheme, 15 USC §§ 1667d (a), 1640 (a); therefore, the inconsistent state law remedy applied in Curry was preempted by federal law. See . Consequently, the decision in Curry was erroneous not because, as the majority contends, it distinguished rather than followed , but rather because state law principles should not have been applied at all.

Accordingly, I would overrule Curry for the reason I have stated, not on the basis stated in the majority opinion.

I am authorized to state that Presiding Judge Carley, Judge Pope, Judge Beasley, Judge Cooper, Judge Andrews, and Judge Johnson join in this special concurrence.

DECIDED NOVEMBER 19, 1992 —
RECONSIDERATION DENIED DECEMBER 2, 1992

Barry G. Irwin, Phillip Walsh, for appellant.

Stokes, Lazarus & Carmichael, Karl M. Terrell, King & Spalding, Ralph A. Pitts, Robert R. Ambler, Jr., for appellee.

Long, Aldridge & Norman, Paul R. Shlanta, Bruce P. Brown, amici curiae.

ANDREWS, Judge.

Smith was tried and convicted of aggravated sodomy arising out of his acts against his stepchild, and he appeals.

1. In his first enumeration of error, Smith contends that the trial court erred in allowing evidence of similar transactions. We disagree.

At trial, there was evidence that Smith forced his stepchild when she was approximately four or five years old to perform oral sex on him as punishment for sucking her thumb. The victim was ten at the time of trial. Smith contends that the trial court improperly allowed testimony regarding similar acts involving Smith‘s niece. Smith‘s niece testified that in 1985 when she was 16 years old, she lived with Smith and his family for a short time. During this period, Smith on several occasions approached his niece in a sexual manner. At various times, he fondled her, kissed her, attempted to lie on top of her and attempted to take off her clothes.

We find that the evidence was properly admitted. See generally ; . Although Smith claims in his enumeration of error that the prior transaction was introduced for an improper purpose, that there was not sufficient evidence of his identity regarding the prior incident, and that the other transaction was not sufficiently similar to the crime at issue in this case, the only argument which Smith pursues is that the acts were not sufficiently similar. He claims that because the prior sexual misconduct involved a sixteen-year-old niece and not a four-year-old stepdaughter the potential for prejudice outweighed its probative value. He further argues that because of the prior female‘s age, his conduct with regard to her was not unlawful and testimony regarding it should have been barred.

His arguments are without merit. See generally OCGA § 16-6-22 (a) (1), (6). Both acts were perpetrated on young females who resided in the same dwelling as Smith and over whom Smith exerted authority. In both instances the sexual misconduct occurred in the dwelling in which Smith and the female resided. The trial court was authorized under these circumstances to admit the niece‘s testimony as evidence of Smith‘s state of mind, intent, and course of conduct. See ; see also ; .

The independent crimes were sufficiently similar to the offenses charged so that proof of the former tended to establish intent or bent of mind to commit the crime for which defendant was on trial. The requisite similarity between the incidents depends on the purpose for which the evidence is being presented.... Generally when similar transactions are being introduced to prove such issues as bent of mind, motive or intent, less similarity need be shown than when identity is sought to be proved thereby. (Citations and punctuation omitted.) . Further, the exception to the general rule that evidence of independent crimes is inadmissible has been more liberally extended in the area of sexual offenses. (Citations and punctuation omitted.) . The evidence here was introduced for a limited purpose; the trial court gave appropriate limiting instructions both before the evidence was introduced and in its closing charge. Accordingly, no error appears. ; .

2. In his second enumeration of error, Smith argues that the trial court erred in not allowing an expert witness, a clinical psychologist, to testify regarding the results of tests administered to Smith, which indicated that Smith had not exhibited behavior typical of a child molester. Citing , and , Smith contends that the expert would not have testified regarding the ultimate issue in the case, but that he would have testified as to whether Smith‘s behavior was that typically displayed by a molester.

Smith‘s arguments here were resolved adversely to him in , and the rationale of that case applies here. “The profile testimony sought to be introduced by appellant goes to the credibility and believability of appellant‘s own testimony that he did not commit the acts charged and further speaks to the ultimate fact of whether appellant committed those acts. From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victims’ truthfulness and the appellant‘s capability of performing the acts he was accused of. These determinations did not involve ‘unique and mysterious areas of human response’ necessitating expert testimony. This enumeration is without merit.” .

Judgment affirmed. Birdsong, P. J., concurs. Beasley, J., concurs specially.

BEASLEY, Judge, concurring specially.

The admissibility of evidence of independent transactions must be measured by a three-part test, not simply the “two-prong test” which did not include purpose. The similarity of the independent transaction to the incident on trial and the commonality of the perpetrator of the independent transaction to the defendant on trial are two prongs. But first the State must show that the evidence addresses “some appropriate purpose.” . By purpose is meant that the evidence will shed light on some issue in the case, such as identity of the perpetrator or the perpetrator‘s intent in committing the act. (Beasley, J., concurring specially).

Appellant does not challenge the evidence in this regard, even though the State did not designate and the court did not specifically charge the jury what issues existed in the case which would be served by this evidence. Before the testimony was given, the court charged that such evidence is admitted “solely and only under the provision of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, course of conduct, identity or other matters dependent upon a person‘s state of mind are involved as material elements in the offense ... evidence of the defendant‘s conduct with reference to similar transactions about the same time is admitted solely for the jury to consider only as it might tend to illustrate the defendant‘s state of mind on the subject involved....”

In the final charge, the court essentially repeated the above but added that such evidence “is admitted solely for the jury to consider only as it might tend to illustrate the defendant‘s state of mind on the subject involved, if you think it does so illustrate it, and for that purpose alone. You are not to consider it for any other purpose.”

This general and somewhat inconsistent charge does little to limit the jury‘s consideration of the independent transaction evidence or to identify the contested issue in the case or the element of the crime which the evidence enlightens. Knowledge, good or bad faith, and identity were not issues, for example. On appeal, the state maintains that this evidence tends to establish appellant‘s “bent of mind and course of conduct.”

But appellant does not target this aspect of the test of admissibility. Instead, he argues that the two transactions are not sufficiently similar. With respect to that, I agree with the majority.

I concur in Division 2.

DECIDED NOVEMBER 17, 1992 —
RECONSIDERATION DENIED DECEMBER 2, 1992

Pruitt & Britt, Glyndon C. Pruitt, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.