336 Ga. App. 884
Ga. Ct. App.
2016

SUTTON v. THE STATE

A16A0446

Georgia Court of Appeals

Decided April 20, 2016

785 SE2d 421

Peterson, Judge

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

A16A0446. SUTTON v. THE STATE. (785 SE2d 421)

Peterson, Judge.

Steve Sutton, convicted of six counts of child molestation and one count of aggravated child molestation, appeals from the denial of his motion for a new trial. He argues that the trial court erred by (1) excluding one of the victim’s statements that she was molested by someone other than him, and (2) denying his motion to sever the molestation counts pertaining to one victim from those pertaining to the other. Because the victim’s statement was merely evidence of the victim’s momentary confusion, and because severance was unnecessary given that the molestation allegations of each victim would have been admissible evidence in the other victim’s case, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and no longer presume the defendant is innocent. . So viewed, the evidence shows that Sutton was the grandfather of the two victims, A. J. and C. S. Sutton repeatedly touched C. S.’s genitals on numerous occasions when she was approximately ten or eleven years old. Sutton also made C. S. touch him, and on one occasion, removed her bathing suit bottom and touched her genitals with his tongue. Several years later, when A. J. was four years old, Sutton placed some sort of substance A. J. called “glue” on her genitals and touched her.

Prior to the trial, the State filed a motion in limine to exclude the past sexual history of A. J. Specifically, the State sought to exclude evidence of a prior sexual incident between A. J. and another young child under the Rape Shield Statute. Sutton argued that the evidence should be admitted to demonstrate the child’s knowledge of sexual acts independent of the actions for which Sutton was indicted. The trial court examined the parties’ arguments carefully and in detail before granting the State’s motion, with the caveat that the State could not open the door by claiming that A. J. had sexual knowledge that could have originated only from Sutton’s conduct.

On the day of trial, Sutton indicated that he intended to play A. J.’s recorded interview in which she initially identifies another child as having put the glue on her. In the recorded interview, A. J. first discussed an incident in which the other young child had touched her. When asked about the incident at issue in this case immediately thereafter, A. J. said that the same young child had placed glue on her genitals, but then immediately corrected herself to identify Sutton. The State argued that this portion of the interview should be excluded under the trial court’s previous ruling as prior sexual history. After much debate between the parties and careful consideration by the trial court as to whether the statement merely constituted a prior inconsistent statement, the trial court expanded its prior ruling to exclude the portion of A. J.’s interview in which she refers to the other young child.

1. Sutton argues that the trial court erred by excluding A. J.’s statements from the recording of the interview played for the jury. Specifically, Sutton contends that former OCGA § 24-2-3 did not require exclusion of A. J.’s statements as unrelated sexual history, because her statements would be used to impeach her.1 We disagree.

We review a trial court’s decision to admit or exclude evidence for abuse of discretion. . Former OCGA § 24-2-32 provides that generally in prosecutions for aggravated child molestation, “evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses[.]” The general rule is that evidence of prior unrelated molestation is barred, and “is not admissible simply to show the victim was confused.” . But such evidence may be admissible to show other possible causes for behavioral symptoms typically associated with child sexual abuse accommodation syndrome3 or to explain certain medical testimony introduced at trial. . “Such evidence may also be admissible to show the victim’s lack of credibility where the victim has made prior false allegations of child molestation.” .

Here, none of the exceptions to the general rule of inadmissibility applies. There was no expert testimony concerning child abuse

accommodation syndrome, nor was any medical evidence admitted. Sutton was also unable to show that A. J.’s statements regarding the other child were false. Finally, close review of the testimony at issue reveals that A. J., who moments earlier had been discussing activity with the other young child, merely misspoke and initially said the wrong name,4 but then corrected herself to identify Sutton as the offender and was consistent in that testimony throughout the remainder of the interview, although she referred to Sutton as both “Poppa Johnson” and “Poppa Sutton.” As a result, we cannot say that the trial court abused its discretion in excluding A. J.’s testimony pertaining to the other young child.5

2. Sutton next argues that the trial court erred by refusing to sever the allegations pertaining to each victim into separate trials because (1) the allegations pertaining to each victim were too remote in time and were too different to have been combined into a single trial, and (2) the incidents pertaining to C. S. would not have been admissible as similar transaction evidence in the trial pertaining to A. J. Sutton also argues that he was prejudiced by the failure to sever the charges pertaining to each victim because the combination of charges into a single trial made his conviction more likely. Again, we disagree.

We review the trial court’s decision to grant or deny a severance for abuse of discretion. . Severance is mandatory “[w]hen two or more crimes of the same general nature are committed against different persons, at different times and places, and are charged in separate counts of an indictment . . . if the crimes are joined solely because they are of the same or similar character.” (emphasis in original). But

[i]f the offenses are not joined solely because they are of the same or similar character, and evidence of one charged offense would be admissible as a similar transaction during

trial on another charged offense, the trial court is vested with discretion in deciding whether to grant a motion to sever.

Severance does not have to be granted when, in the trial court’s discretion, the complexity of the evidence and number of offenses charged do not impinge “upon a fair determination of the defendant’s guilt or innocence as to each offense charged.” (citation and punctuation omitted).

Here, although the charged offenses occurred on different dates and involved different victims, they showed Sutton’s “common motive, lustful disposition, and bent of mind to satisfy his sexual desires.” . See also (permitting charge of sexual battery against adult daughter to be included along with charges of child molestation involving grandson, as alleged battery showed defendant’s “bent of mind and pattern of conduct against members of his family”).6 Notably, Sutton “gained access to his second victim . . . through his familial relationship” because both victims were his granddaughters. . Despite the passage of time and other minor differences between the two offenses, the trial court could find that the circumstances related to Sutton’s molestation of each victim would have been admissible as similar transaction evidence had there been separate trials for each. (citing (“The mere difference in the victims’ ages, sex, and specific acts of molestation did not render the similar transaction inadmissible.”)). “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying appellant’s motion for severance.” (citation omitted).

Finally, “this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense.” (citation omitted). Indeed, the jury found Sutton not guilty of aggravated sexual battery with respect to A. J. Consequently, we conclude that the trial court did not abuse its discretion in denying Sutton’s motion to sever and motion for new trial on this basis.

Judgment affirmed. Phipps, P. J., and Dillard, J., concur.

Notes

1
To the extent Sutton challenges the constitutionality of former OCGA § 24-2-3 as applied, that argument is not preserved for appeal. The trial court did not specifically address or rule on the question. See .
2
Because the trial in this case occurred in 2009, prior to the January 1, 2013 effective date of our new Evidence Code, OCGA § 24-2-3 (the predecessor to OCGA § 24-4-412) applies. See Ga. L. 2011, p. 99, § 101.
3
Child sexual abuse accommodation syndrome reflects a variety of behavioral stages displayed by children who have been sexually assaulted. For a more detailed description of this condition, see, e.g., .
4
Even if we were to pluck A. J.’s misstatement—which she immediately corrected—from its context in the discussion of unrelated molestation that had taken place moments earlier, and consider it instead in isolation, any error in excluding the misstatement was harmless. See (“it is an old and sound rule that error to be reversible must be harmful”). A. J. was consistent in her interview that Sutton molested her, and her fleeting misstatement that she immediately corrected cannot be fairly equated with her having identified some other person as the offender.
5
The dicta Sutton relies on in does not change our analysis here.
6
These cases were decided under the prior Evidence Code in which bent of mind was a ground upon which similar transaction evidence could be admitted.
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