In Sutton v State, the Georgia Court of Appeals affirmed the trial court’s decision to exclude evidence about one of the alleged victims’ past sexual behavior in a child molestation trial.
The defendant was convicted of child molestation involving his two granddaughters. On appeal, he argued that evidence of one of the girl’s past sexual behavior should have been admissible in order to demonstrate the child’s knowledge of sexual acts prior to the allegations being made. He also argued that the cases should have been severed so that charges pertaining to the two alleged victims could be tried separately.
Prior to trial, the State filed a motion in limine to exclude the girl’s past sexual history and the trial court granted the motion. Under Georgia’s Rape Shield statute, “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.” This is subject to certain exceptions (to prove consent, sexual knowledge, to show another cause for symptoms of abuse, etc.)
However, during the trial, the defendant attempted to play a recording of an interview with the girl in which she said that another child had touched her and “placed glue” on her genitals. She then corrected herself and stated that it was the defendant who had “placed glue” on her.
The State argued that the portion of the interview in which another young child was mentioned should be excluded under the court’s ruling on past sexual behavior. The trial court held that the evidence could be excluded with the caveat that the State could not then argue that the girl had sexual knowledge that only could have originated from the defendant’s conduct.
The Court of Appeals affirmed the trial court’s decision to exclude the evidence as it held that the girl likely misspoke about the other girl placing glue on her, and thus, there was no evidence that the prior sexual behavior was relevant to prove any prior sexual knowledge related to her allegations against the defendant.
The defendant also argued that the two cases should have been severed because they involved different acts and occurred at different times. He claimed that refusing to sever the charges made his conviction more likely. Again, the Court disagreed and affirmed the trial court’s ruling to try all of the charges together.
The Court noted that if “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.” Despite the difference in ages of the girls and the time span between the alleged offenses, the Court found that evidence of each crime would likely be admissible in the trial of the other given that they both involved sexual offenses against his granddaughters.
As a result, the Court affirmed the defendant’s child molestation convictions.
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