Court Reverses Molestation Convictions Due to Admission of Prejudicial Pornography Evidence

In State v. Collum, a divided Georgia Court of Appeals reversed the defendant’s convictions for aggravated child molestation, child molestation, and enticing a child for indecent purposes. The Court held that the State’s admission of highly prejudicial adult pornography was erroneous and likely contributed to the verdict.

Background

The defendant was charged with molesting his girlfriend’s 13-year-old daughter. The girl alleged that the sexual encounters occurred on multiple occasions. She stated that on one occasion, the defendant showed her a pornographic video while her mom was not at home.

At trial, the prosecutor showed her a DVD seized from the defendant’s home and the girl testified that she recognized it as the pornographic video that the defendant showed her. According to her trial testimony, this was the only time that the defendant had shown her pornography. However, she did testify that the defendant had shown her pictures of naked women on his phone and had told her not to look in his bedroom closet because that is where he kept these DVDs.

In the girl’s forensic interview, she actually described two DVDs that the defendant had shown her. Her description of the other DVD matched the description of a second pornographic DVD that the State introduced into evidence at trial.

The police conducted a search of the defendant’s cell phone which revealed a number of pornographic websites that he visited on the day of the alleged incident. Some of the titles of these porn site URLs had words such as “teen” or “schoolgirls” in them.

During a search of the defendant’s home, the police seized a large number of pornographic magazines and DVDs found in the defendant’s closet. At trial, the State introduced all of these DVDs and magazines and the lead detective read out the title of each of these items to the jury. These were all adult materials, but the titles were very sexually explicit.

Prior to trial, the defense filed a motion in limine seeking to exclude this evidence, but the motion was denied by the trial court. The State argued that the evidence was connected to Count 6 of the indictment which charged the defendant with the offense of child molestation by showing pornography to the child. It argued that all of it was admissible to corroborate the girl’s statement that the defendant told her about him keeping the pornography in his closet.

On appeal, the defense argued that the trial court erred in admitting the numerous pornographic materials that the girl had not described or identified and had not been allegedly shown to her. Essentially, the defense’s argument was that any of the pornographic materials that were not linked to the child molestation allegations were prejudicial and should not have been admitted into evidence.

Court of Appeals’ Ruling

On appeal, the Court of Appeals’ majority agreed with the defense and reversed his conviction.

First, the Court agreed with the State that the two DVDs identified by the girl at trial and described by her in the forensic interview were admissible to prove Count 6 of the indictment. Those two DVDs were direct evidence of the commission of that offense.

With respect to the remaining pornographic materials, the majority found that none of them were direct evidence of the offense in Count 6. The remaining question was whether they were admissible for some other purpose.

The majority seemed skeptical that the other pornographic materials had any probative value, but nonetheless concluded that even if they did, the probative value was substantially outweighed by the danger that it unfairly prejudiced the defendant.

The majority concluded that the risk of unfair prejudice was substantial given the sexually explicit and descriptive titles and nature of these materials. The title of each and every DVD and magazine was read out loud to the jury and they were also published to them in open court.

Therefore, the majority concluded that even if these materials were admissible as relevant evidence, they should have been excluded under Rule 403 which provides that evidence should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.”

The Court agreed with the State that the evidence of the pornography was relevant to corroborate the girl’s statements about it being kept in the defendant’s closet. However, the Court held that the State accomplished this in a far less prejudicial manner when it introduced photographs the police took of the defendant’s closet that showed his pornography inside there. It reasoned that there was no need to further prove this point.

Dissenting Opinion

In the dissenting opinion, Judge Barnes wrote that the evidence of the additional pornography was intrinsic evidence since it was “inextricably intertwined” with the State’s case. Acknowledging that the “question of unfair prejudice is a closer call,” the dissent held that the trial court was within its discretion to find that the probative value of this evidence was not outweighed by the risk of unfair prejudice.

Even if it was error to admit this evidence, the dissent found that the error was harmless as the additional pornography was just cumulative of the other two graphic and sexually explicit DVDs that were found by the appeals court to be admissible.

As a result of the holding by the majority, the Court reversed the defendant’s convictions and remanded the case for a new trial.