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Prejudicial Molestation Testimony Leads to Reversal in Child Cruelty Case

April 11, 2019

The defendant's conviction for cruelty to a child was reversed as the Georgia Court of Appeals held that the trial court erred in allowing his wife to testify that, in the days after the alleged incident, she observed him molesting their two-year-old daughter.

The Court held that this testimony was extremely prejudicial and not at all relevant to the charged crime.

In Maqrouf v. State, the defendant was charged with cruelty to a child in the first degree for allegedly kicking his five-year-old daughter in the stomach during a domestic dispute with his wife. Following a jury trial, he was convicted and sentenced to 10 years in prison, followed by 10 years on probation.

On appeal, the defendant argued that it was error for the trial court to allow the State to call his wife to testify that she observed him molesting their two-year-old daughter a day or two following the incident giving rise to these charges. The State argued at trial that this testimony was admissible to show the circumstances surrounding the offense as this alleged molestation was the reason the wife finally went to the police to report the kicking incident. The trial court admitted the testimony, over the defense’s objection, as “evidence of prior difficulties between the parties.”

First, the Court of Appeals explained that “prior difficulties” are different than evidence of “other acts” under Rule 404(b) as they do not necessarily “implicate independent acts or occurrences” but are connected acts arising from the relationship between the parties involved in the case. The Court cautioned that evidence of prior difficulties between an accused and the alleged victim can be extremely prejudicial if the evidence has no “probative connection” to the case on trial. To establish such a probative connection, there must be something that ties together the separate acts in a way that provides context to the charged offense as well as the motives of the parties.

The Court also pointed out that it has previously held that if the evidence of prior difficulties “sheds light on the defendant’s conduct toward the victim,” the relevance of the evidence will outweigh its prejudicial effect. However, in this case, the two acts were quite dissimilar: one involved kicking his five-year-old during an argument with his wife, and the other was an alleged act of child molestation against his two-year-old daughter.

The Court found that regardless of whether the subsequent molestation was the impetus that led the wife to report the kicking incident, the evidence was not at all probative as to whether the defendant committed the offense he was being tried for. The Court concluded that the probative value of the molestation evidence was minimal at best. The Court then held that the probative value of this evidence was far outweighed by its prejudicial effect – which was the risk that the jury would convict the defendant regardless of whether he committed the charged offense simply because they believed he molested his other daughter.

In determining whether the error contributed to the verdict, the Court noted that this evidence was “extremely prejudicial in the eyes of the jury” and the remaining evidence in the case was not overwhelming. Therefore, the Court held that the error was not harmless and that it warranted a new trial.

As a result, the defendant’s conviction for cruelty to children was reversed and the case was remanded back to the trial court.

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