Dixon v. the State

FOURTH DIVISION
DILLARD, P. J.,
RAY and SELF, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

April 19, 2017

In the Court of Appeals of Georgia
A17A0233. DIXON v. THE STATE.

SELF, Judge.

Eric Dixon appeals from his convictions of one count of aggravated child

molestation and four counts of child molestation. He argues that the trial court erred

in (1) admitting evidence qualifying as “another offense of sexual assault” under

OCGA § 24-4-413 or “another offense of child molestation” under OCGA § 24-4-

414; and (2) declining to exercise its discretion to grant a new trial because the

verdict was contrary to the weight of the evidence under OCGA § 5-5-21. For the

reasons explained below, we affirm.

On appeal from a criminal conviction, the standard for reviewing the

sufficiency of the evidence “is whether a rational trier of fact could have found the

defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence
or resolve conflicts in testimony; instead, evidence is reviewed in a light most

favorable to the verdict, with deference to the jury’s assessment of the weight and

credibility of the evidence.” (Citations and punctuation omitted.) Hayes v. State, 292

Ga. 506 (739 SE2d 313) (2013). So viewed, the record shows that the female victim,

who was 15 years old at the time of the trial, testified that Dixon dated her mother.

When the victim was around nine to ten years old, Dixon touched her breasts, but she

never told her mother.

Another incident occurred when the victim was lying on the floor and her

mother was asleep on the couch. Dixon placed a blanket over the victim, laid down

beside her, and touched her vaginal area with his hand underneath her clothing. Her

mother did not awaken, and the victim did not tell her what Dixon had done.

On a different occasion, Dixon instructed the victim to “suck his penis” in the

kitchen after her mother went to the store. She explained that she did not want to do

it, but “every time he would pull me forward, I jerked away and he kept on doing it

and I had did it and he wanted me to do it more and I kept on jerking away and

pulling my head away and I didn’t do it anymore.” On this same occasion, Dixon

made her touch his penis. The victim explained that Dixon told her “he would hurt

[her] or [her] family” if she told or did not do what he wanted.

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 When the victim later told her aunt about Dixon’s conduct, the aunt took her

to the police, where the victim spoke with a detective. She subsequently gave a video-

recorded forensic interview at the Children’s Advocacy Center, and the State played

the video for the jury during the trial. At the beginning of the interview, in response

to a question about why she was being interviewed, the victim stated it was “about

me being raped or sexual touch.” She described the incident in the kitchen as

happening while her mother “was passed out on the couch.” At trial, the victim

admitted that this last statement was inconsistent with her testimony that her mother

was at the store when the incident in the kitchen occurred.

At one point during the interview, the victim stated that her mother was doing

“really bad right now” and would leave her at home alone when she would go out.

She explained that this was why she wanted to go live with her father. She also

described a meeting with both of her parents a few days before the interview in which

her mother said she did not know about Dixon’s behavior. According to the victim,

her mother “tried to lie about it,” because the mother also stated that the victim’s

grandparents knew about it. According to the victim, her mother finally admitted that

she did know about Dixon’s behavior, but the victim did not know how her mother

knew about it.

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 At trial, the victim conceded that her version of events in the forensic interview

made it appear like Dixon’s abuse occurred “every time her mom left” over a two-

year period and that this was not true. She also acknowledged that her aunt no longer

allowed her to live in her home because of a dispute relating to lying and that she was

currently living with her mother again after a stint in foster care. Finally, she denied

telling another adult that Dixon had penetrated her vagina with his penis.1

The victim’s grandmother testified that it was her personal opinion that the

victim’s character was one of untruthfulness. According to the grandmother, the

victim confessed to her that she had lied about Dixon saying “something out of the

way to her.” It is unclear from the grandmother’s testimony what is meant by saying

“something out of the way.” According to the victim, Dixon was good friends with

her grandparents.

The State also introduced evidence of another offense of child molestation or

sexual assault. W. T., who was 23 years old at the time of the trial, testified that when

he was between the ages of six and eleven years old, Dixon, who was married to his

mother, began touching his genitals. Over time, Dixon began having anal sex with W.

1
According to the investigating police officer, this adult, who did not testify
at trial, told him that the victim revealed to her that Dixon had done so on more than
one occasion.

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T., and W. T. performed oral sex upon Dixon. W. T. testified that Dixon threatened

to take him into the woods and shoot him if he told anyone what they did.

When W. T. told his mother what was happening in the fourth or fifth grade,

Dixon was waiting for him when he came home from school and yelled at him and

accused him of lying. Dixon then took W. T. and his mother to W. T.’s school “and

then started yelling at all the counselors and people in the front office” about the

allegations. At that point in time, W. T. had only told his mother about Dixon’s sexual

abuse. After this incident at the school, “nothing ever happened and no investigation

was launched[.]” W. T. explained that “[i]t was just a whole ordeal and then [Dixon]

left for a while and then came back.” When W. T. turned 11 years old, the abuse

started slowing down and it ultimately stopped after his mother ended the

relationship.

The investigating police officer testified that school counselors are mandatory

reporters who are required to notify law enforcement of allegations of child

molestation. He acknowledged, however, that “[t]here are times when it doesn’t get

reported by [a] mandated reporter. . . .” He explained that he did not do any

investigation of W. T.’s allegations of molestation because they took place in a

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different county and that he therefore referred W. T. to the sheriff’s office in that

county.

1. Dixon maintains that the “trial court erred by allowing uncorroborated and

unduly probative testimony [by W. T.] which was substantially prejudicial to Dixon’s

defense.” We disagree.

As this case was tried after July 1, 2013, the effective date of Georgia’s new

Evidence Code, Ga. L. 2011, p. 99 §101, the State sought to introduce W. T.’s

testimony pursuant to OCGA § 24-4-404 (b), OCGA § 24-4-413 (b), and OCGA §

24-4-414 (b).

OCGA § 24-4-413 (a) provides: “In a criminal proceeding in which the accused

is accused of an offense of sexual assault, evidence of the accused’s commission of

another offense of sexual assault shall be admissible and may be considered for its

bearing on any matter to which it is relevant.” Id. An offense of sexual assault

includes sodomy. See OCGA § 24-4-413 (d) (1); OCGA § 16-6-2 (a) (1).

OCGA § 24-4-414 (a) provides: “In a criminal proceeding in which the accused

is accused of an offense of child molestation, evidence of the accused’s commission

of another offense of child molestation shall be admissible and may be considered for

its bearing on any matter to which it is relevant.” An “offense of child molestation”

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is defined as “any conduct or attempt or conspiracy to engage in . . . [a]ny crime that

involves contact between any part of the accused’s body . . . and the genitals or anus

of a child. . . .” OCGA § 24-4-414 (D) (2).

These provisions supersede the provisions of OCGA § 24-4-404 (b)2 in sexual

assault and child molestation cases. See Steele v. State, 337 Ga. App. 562, 566 (3),

n. 5 (788 SE2d 145) (2016); Dority v. State, 335 Ga. App. 83, 95 (3) (780 SE2d 129)

(2015), and “create a ‘rule of inclusion,’ with a strong presumption in favor of

admissibility as [each] provides that such evidence ‘shall be admissible.’” (Citations

omitted.) Steele, supra, 337 Ga. App. at 566 (3). Thus, the State can seek to admit

evidence under these provisions for any relevant purpose, including propensity. Id.;

Dority, supra.

(a) Dixon contends that W. T.’s testimony should not have been admitted

because it was uncorroborated and the State did not “produce any evidence [that W.

T.’s] allegations were ever reported or investigated.” As Georgia’s new evidence

rules mirror their federal counterparts, our appellate courts “look for guidance to the

decisions of the federal appellate courts, particularly the United States Supreme Court

2
OCGA § 24-4-404 (b) provides the general rule for the admission of evidence
of “other crimes, wrongs, or acts. . . .”

7
and the Eleventh Circuit, interpreting the federal rules in question.” Davis v. State,

299 Ga. 180, 185 (2) (a) (2) (787 SE2d 221) (2016). An examination of this guidance

shows that corroboration,3 criminal charges, or a conviction are not required for the

admission of other acts evidence under the Federal Rules of Evidence. See United

States v. Bush, Case No. 5-15401, 2016 U. S. App. LEXIS 22878 at *3-4 (11th Cir.

2016) (“[a] single witness’s uncorroborated testimony can provide an adequate basis

for a jury to find that the prior act occurred”); United States v. Guidry, 456 F3d 493,

501-502 (III) (A) (1) (5th Cir. 2006) (terms “offense” and “crime” in Federal Rule of

Evidence 413 do not limit the evidence to that which is proven by conviction);

Johnson v. Elk Lake School Dist., 283 F3d 138, 151 (III) (D) (3rd Cir. 2002)

(uncharged conduct admissible under Federal Rules of Evidence 413-415). Indeed,

a prior acquittal of a criminal charge will not necessarily preclude admission of other

act evidence under the Federal Rules of Evidence. See United States v. Smith, 148

3
As this issue is not currently before us, we express no opinion on whether
uncorroborated accomplice testimony may be used to prove other acts under
Georgia’s new Evidence Code. See Bradshaw v. State, 296 Ga. 650, 653 (2) (769
SE2d 892) (2015) (corroboration of accomplice testimony required under new
Evidence Code in order for it to be sufficient to sustain a conviction); Dean v. State,
292 Ga. App. 695, 700 (665 SE2d 406) (2008) (under Georgia’s former Evidence
Code “a prior similar transaction may not be proved solely by the uncorroborated
testimony of an accomplice”) (punctuation omitted).

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Fed. Appx. 867, 870 (11th Cir. 2005). Finally, a trial court “need not make a

preliminary finding that the alleged prior similar conduct in fact occurred before

admitting it into evidence.” United States v. Rodriguez, 917 F2d 1286, 1290, n. 7

(11th Cir. 1990), vacated in part on other grounds, 935 F2d 194, 196 (11th Cir. 1991).

Instead, a trial court’s decision to admit other act evidence will be affirmed “if a jury

could find by a preponderance of the evidence that the defendant committed the act.”

Bush, supra at * 3.

Because a jury could have concluded by a preponderance of the evidence in

this case that Dixon committed the acts described by W. T., we find no merit in this

portion of Dixon’s argument on appeal. See Smart v. State, 299 Ga. 414, 419 (2) (c)

(788 SE2d 442) (2016) (noting eyewitness testimony sufficient proof for jury to

conclude that defendant committed acts admitted under OCGA § 24-4-404 (b)).

(b) Dixon also argues that the trial court erred by failing to conclude that the

probative value of W. T.’s testimony was “substantially outweighed by its danger of

unfair prejudice.” We disagree.

Our analysis of this argument is governed by OCGA § 24-4-403, which

provides: “Relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

9
the jury or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” Georgia courts have already established that “[this

determination lies within the discretion of the trial court and calls for a common sense

assessment of all the circumstances surrounding the extrinsic offense, including

prosecutorial need, overall similarity between the extrinsic act and the charged

offense, as well as temporal remoteness.” (Punctuation omitted.) Eubanks v. State,

332 Ga. App. 568, 570 (1) (774 SE2d 146) (2015). See also Bradshaw v. State, 296

Ga. 650, 657-658 (3) (769 SE2d 892) (2015).

The application of the [OCGA § 24-4-403] test is a matter committed
principally to the discretion of the trial courts, but as we have explained
before, the exclusion of evidence under [OCGA § 24-4-403] is an
extraordinary remedy which should be used only sparingly. The major
function of [OCGA § 24-4-403] is to exclude matter of scant or
cumulative probative force, dragged in by the heels for the sake of its
prejudicial effect.

(Citations and punctuation omitted.) Smart, supra, 299 Ga. at 418 (2) (b). “In close

cases, the balance should be struck in favor of admissibility. . . .” Gerber v. State, 339

Ga. App. 164, 177 (3) (b) (793 SE2d 131) (2016).

While it is clear that OCGA § 24-4-403 applies to evidence admitted under

OCGA §§ 24-4-413 and 24-4-414, and their corresponding federal counterparts,

10
neither Georgia courts nor the Eleventh Circuit have expressly decided whether

evidence admitted under these Code provisions “should be evaluated under a different

type of Rule 403 balance that weighs in favor of admission.” United States v. Brimm,

608 Fed. Appx. 795, 799, n. 6 (11th Cir. 2015) (declining to address issue based upon

its finding that trial court did not abuse its discretion under test applied to other act

evidence admitted pursuant to Rule 404 (b) that is more favorable to the defendant);

Eubanks, supra, 332 Ga. App. at 570 (1) (analyzing application of OCGA § 24-4-403

under standard applied to evidence admitted under OCGA § 24-4-404 (b) and Federal

Rule of Evidence 404 (b)). “Over time, the [federal] circuit courts have developed

distinct approaches to the application of the Rule 403 balancing test in determining

the admissibility of prior sexual misconduct evidence under Rules 413-415.”

Palumbo, “Ensuring Fairness and Justice Through Consistency: Application of the

Rule 403 Balancing Test to Determine Admissibility of Evidence of a Criminal

Defendant’s Prior Sexual Misconduct under the Federal Rules,” 9 Seton Hall Cir.

Rev. 1, 12 (2013). See also Bu, “Searching for a Better Constitutional Guarantee for

the FRE 413-415: The Conflict Among Circuits in Applying the FRE 403 Balancing

Test and a New Solution,” 16 U. Ill. L. Rev. 1905, 1915-1916 (2016).

11
 Like the Eleventh Circuit in Brimm, supra, however, we need not address this

question as the trial court did not abuse its discretion under the typical balancing test

applied to evidence admitted under OCGA § 24-4-404 (b). When reviewing whether

a trial court has abused its discretion in its application of the balancing test in OCGA

§ 24-4-403, it is important to bear in mind the distinction between relevance and

probative value.

Relevance and probative value are related, but distinct, concepts.
Relevance is a binary concept — evidence is relevant or it is not — but
probative value is relative. Evidence is relevant if it has “any tendency”
to prove or disprove a fact, whereas the probative value of evidence
derives in large part from the extent to which the evidence tends to make
the existence of a fact more or less probable. Generally speaking, the
greater the tendency to make the existence of a fact more or less
probable, the greater the probative value. And the extent to which
evidence tends to make the existence of a fact more or less probable
depends significantly on the quality of the evidence and the strength of
its logical connection to the fact for which it is offered. See Milich,
Georgia Rules of Evidence § 6.1 (2015) (“Probative value refers to the
strength of the connection between the evidence and what it is offered
to prove.”). Probative value also depends on the marginal worth of the
evidence — how much it adds, in other words, to the other proof
available to establish the fact for which it is offered. The stronger the
other proof, the less the marginal value of the evidence in question. See
2 Weinstein’s Fed. Evid. § 404.21 [3] [a] (“[T]he availability of other,

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 less prejudicial, evidence on the same point ordinarily reduces the
probative value of a given item of extrinsic evidence.”). And probative
value depends as well upon the need for the evidence. When the fact for
which the evidence is offered is undisputed or not reasonably
susceptible of dispute, the less the probative value of the evidence. See
Mueller & Kirkpatrick, supra, § 4.21 (“The more strongly an issue is
contested, the greater the justification for admitting other act evidence
bearing on the point.”).

(Citations and footnotes omitted; emphasis in original.) Olds v. State, 299 Ga. 65, 75-

76 (2) (786 SE2d 633) (2016).

In this case, the State’s need for the evidence was great based upon Dixon’s

attacks on the victim’s credibility, the lack of any physical evidence, and the victim’s

delayed outcry. See Eubanks, supra, 332 Ga. App at 570 (1). With regard to the

overall similarity of Dixon’s acts, each involved inappropriate sexual contact between

Dixon and a child of similar age to whom Dixon gained access through a relationship

with the child’s mother. While the victims were of a different gender, this Court

previously recognized in a case involving the application of our former Evidence

Code that “[t]he sexual abuse of young children, regardless of the sex of the victims

or the nomenclature or type of acts or other conduct perpetrated upon them, is of

sufficient similarity to make the evidence admissible. This is because sex crimes

13
against children require a unique bent of mind.” (Citations and punctuation omitted.)

Gunn v. State, 300 Ga. App. 229, 232 (3) (684 SE2d 380) (2009). As in Brimm, supra,

W. T.’s “testimony was highly probative of [Dixon]’s motive.” 608 Fed. Appx. at 799

(I) (D). See also Eubanks, supra, 332 Ga. App. at 570 (1). The passing of 7-13 years

between Dixon’s molestation of W. T. and the victim in this case does not mandate

the conclusion that the trial court abused its discretion in its application of the OCGA

§ 24-4-403 balancing test, particularly where Dixon’s access to the children was

based upon a relationship with their mother. Id. And finally, the trial court’s limiting

instruction to the jury in this case mitigated the risk of undue prejudice. Brimm, supra,

608 Fed. Appx. at 800; Eubanks, supra, 332 Ga. App. at 570 (1). Under these

circumstances, we find no abuse of the trial court’s discretion in admitting the

evidence of Dixon’s prior molestation of a minor victim.

2. Dixon argues that the trial court erred by failing to exercise its discretion

under OCGA § 5-5-21 to grant a new trial because the verdict was “decidedly and

strongly against the weight of the evidence even though there may appear to be some

slight evidence in favor of the finding.” Id.

Even when the evidence is legally sufficient to sustain a conviction, a
trial judge may grant a new trial if the verdict of the jury is “contrary to

14
 the principles of justice and equity,” OCGA § 5-5-20, or if the verdict
is “decidedly and strongly against the weight of the evidence.” OCGA
§ 5-5-21. When properly raised in a timely motion, these grounds for a
new trial — commonly known as the “general grounds” — require the
trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’”

(Citation and punctuation omitted.) Allen v. State, 296 Ga. 738, 740 (2) (770 SE2d

625) (2015).

In this case, the record shows that Dixon filed a motion for new trial in which

he alleged that the verdict was “contrary to law,” “contrary to the evidence,” “strongly

against the weight of the evidence,” and “not supported by the weight of the

evidence.” In the hearing on the motion for new trial, Dixon argued that “neither one

of these victims were credible” and asked “the Court to find that [the verdict] was

against the weight of the evidence and grant a new trial.”

At the conclusion of the hearing, the trial court stated: “[Y]ou know, the way

I look at it there is a jury instruction that says they’re to take these conflicts and do

it themselves which one is believable and not believable. While there were

inconsistencies, I’m just going to stick by what the jury did. They are the ones that

weighed the evidence. I’ll deny your motion.” It then entered the following one-

sentence written order on the same day: “The above case having come on to be heard

15
by this Court on the Defendant’s Motion for New Trial on July, 13, 2016 and, after

hearing the argument of counsel, the Defendant’s motion is hereby DENIED.”

(a) Contrary to Dixon’s argument on appeal, neither the trial court’s order nor

its statement during the hearing demonstrate that it failed to exercise the discretion

afforded to it under OCGA § 5-5-21. The Supreme Court of Georgia has approved the

use of summary orders denying motions for new trial, stating

Although the order did not explicitly state that the court was exercising
its broad discretion as the thirteenth juror in deciding the motion, it is
well established that [appellate courts] must presume that the trial judge
knew the rule as to the necessity of exercising his discretion, and that he
did exercise it. We can not assume, in the absence of positive evidence
to the contrary, that the judge knowingly declined to exercise his
discretion.

(Citation and punctuation omitted.) See Butts v. State, 297 Ga. 766, 771-772 (3) (778

SE2d 205) (2015). This presumption applies “unless the language of the order

indicates to the contrary and that the trial judge agreed to the verdict against the

dictates of his own conscience, merely because he did not feel that he had the duty or

authority to override the findings of the jury upon disputed issues of fact.” (Citations,

punctuation and footnote omitted.) Jones v. State, 339 Ga. App. 95, 105 (4) (791

SE2d 625) (2016).

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 Here, the trial court’s oral statement that it was “just going to stick by what the

jury did,” despite the inconsistencies it recognized in the testimony, falls short of the

positive evidence necessary to demonstrate that the trial court failed to exercise its

discretion. Instead, it was merely the trial court’s manner of expressing that it was

exercising its discretion against setting aside the jury’s verdict. Additionally, “[w]hile

a judge’s oral statements on the record may provide insight into the intent of [his]

subsequent written judgment, any discrepancies between the two must be resolved in

favor of the written judgment.” (Citation, punctuation and footnote omitted.) In the

Interest of R. W., 315 Ga. App. 227, 231 (3) (b) (726 SE2d 708) (2012).

(b) To the extent Dixon argues that the trial court erred by reaching the wrong

conclusion in the exercise of its discretion, we cannot consider it. A motion for new

trial on this ground “is not properly addressed to this Court as such a decision is one

that is solely within the discretion of the trial court.” Smith v. State, Ga. (1), Case No.

S16A1766, 2017 Ga. LEXIS 36 (February 6, 2017).

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

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