Smith v. StateSmith v. State
Appellant Willie Fred Smith was convicted of sexually molesting a seven-year-old girl. At trial the prosecution introduced certified copies of two rape convictions dating from more than twelve years previously. On appeal Smith enumerates as error the introduction of evidence of prior crimes without the defendant’s having “opened the door” by placing his character in issue. He also enumerates five additional errors. Held:
1. Prior to trial appellant filed a motion in limine that no evidence of prior sexual offenses be admitted at trial. After a hearing the motion was overruled, and the case proceeded to trial. The victim testified that on the night on which the incident allegedly occurred, she, her mother, the appellant, and several other adults and at least two *741 other children attended a party at the appellant’s mother’s home. According to the victim, while she and two other children were asleep in a bedroom in separate beds, appellant came in alone and awakened her, instructed her to spread her legs, and then lay on top of her and ejaculated upon her. There was testimony that, several days after the alleged incident, the victim developed a vaginal discharge, and her mother took her to a nearby medical facility for diagnosis and treatment of the discharge. Evidence was offered that the discharge tested positive for gonorrhea; further evidence was adduced that appellant was asked to undergo a laboratory test for gonorrhea and that he, too, tested positive for the infection.
The State introduced copies of two 1973 convictions on rape charges, to which the appellant admitted having pled guilty. A former Warner Robins Police Department detective testified that he had worked on the two 1973 cases which led to appellant’s being charged with raping two women on two separate occasions.
Under well-settled principles of law, evidence of prior crimes is generally inadmissible unless the defendant has placed his character in issue.
In the instant case the trial transcript indicates that appellant did not place his character in issue prior to the introduction of the 1973 rape convictions, and that no other evidence of prior illicit sexual activity involving the defendant/appellant with either adults or children was introduced. No evidence was offered regarding any specific similarities between the offense charged below and those of which appellant had previously been convicted; the only point in *742 common was that those offenses, like that charged below, involved impermissible sexual contact. Moreover, the lapse of more than twelve years between the prior sexual activity and the alleged molestation would not strongly bolster any allegation of a “lustful disposition.”
The passage of time would not alone mandate reversing the conviction in the instant case, however. This court has held that crimes committed as long as eighteen or more years before the offense charged can be admissible for the stated purpose. See, e.g.,
Whited v. State,
In
Campbell v. State,
supra, the appellant enumerated as error the admission into evidence of a crime committed seven years previously; he did not challenge the admission of a crime committed four years previously. The Supreme Court, in noting the similarities and differences in the prior crimes and the offense being tried, observed at 132: “The main bar to admission [of the evidence of the earlier prior crime] would seem to be the lapse of time, seven years, between the two incidents.” The court went on to note: “Although lapse of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, it is not wholly determinative.” Id. The Supreme Court held that, despite the time lapse, the similarity between the crime being tried and the two prior crimes committed, respectively, four and seven years earlier, rendered the evidence admissible. Id. See also
Gay v. State,
In the light of the cited cases and many other Georgia cases hold *743 ing similarly, we find that the trial court’s admission of evidence of a prior sexual offense was proper. Appellant’s first enumeration is not meritorious.
2. After careful review of the entire record in the instant case, we find appellant’s second, third, fourth, fifth, and sixth enumerations of error also to be without merit.
Judgment affirmed.