Story v. State

McMurray, Presiding Judge,

dissenting.

I must respectfully dissent from the holding of the majority opinion as I would hold that the trial court did not commit reversible error and should be affirmed.

The evidence of which complaint is made evolved from the testimony of an employee of the Troup County Family & Children Services Department who testified in part as follows: “[ASSISTANT DISTRICT ATTORNEY]: Q. Were you present when she was visiting with her parents? A. On one occasion. Q. When was that? A. May the 5th, 1988. [DEFENSE COUNSEL]: Your Honor, at this point I’m going to object to any testimony about May 5th, 1988. The indictment charges up to May 15th [1987]. Would be after the date of the indictment. THE COURT: Well, there’s no way to know what happened then. It might be relevant or it might not. Just because it happened at that time doesn’t mean it’s not relevant. I’ll overrule your objection. [ASSISTANT DISTRICT ATTORNEY]: Q. Where did this vis*593itation take place? A. In the visiting room at the Department of Family and Children Services office. Q. Who was there? A. Mr. and Mrs. Story and the child and I. Q. How did [the child] react when she first saw the family? A. Well, we walked in the room and [the child] went and sat in a chair at one end of the room. The parents were sitting in a sofa we had at the other end of the room . . . Q. What was Mrs. Story acting like during the visit? A. Mrs. Story just sat at one end of the sofa with her arms across her chest for the majority of the visit and had very little to say. Q. Was she constantly looking at [the child]? A. Yes. Q. What did Mr. Story do? A. Mr. Story tried to interact with the child verbally and for the first thirty minutes they all sat at opposite sides of the room. After a bit he slid down on the floor with his back leaning against the sofa and pulled some of the toys that were located in the room towards him and began playing with them. Eventually [the child] slid off the chair and moved towards the toys that he was playing with. Q. [The child], was it your observation, that [the child] wanted to play with the toys too? A. Yes. Then Mr. Story moved the toys closer to him and the child moved closer because she wanted to play with the toys with him. At one point there Mr. Story raised his leg, bent his knees and raised his leg up and worked the child with the toys towards him between his legs. The child’s back was to him. He put his hands up beneath her knees and bent them and then took the child and rubbed her up and down on him six, seven times. [DEFENSE COUNSEL]: May it please the Court, I object to this line of testimony. It’s not relevant to any material issue in this case. Also, it goes in areas dealing with some other sexual misconduct not alleged in the indictment and that we understood the district attorney’s office was instructed not to elicit testimony about. I object also and move for a mistrial, Your Honor . . . Your Honor, for the sake of the record, similar transactions we believe are inadmissible here because there has been no prior notice as we agreed and also we object because it’s testimony we asked not be solicited and it is being solicited and we’d ask for a mistrial.”

The trial court then gave the jury limiting instructions that “you have heard some testimony about an incident this witness says she saw take place between the defendant, John Robert Story, and [the child]. You will consider that evidence only against the defendant John Robert Story and in no way against the other defendant, Florence Rudeen Story, and this evidence is admitted for that limited purpose; this limited purpose if you do consider this evidence, you will consider it solely with reference to the mental state, identity, intent or bent of mind of the defendant John Robert Story and for that purpose and no other.”

“ ‘ “(I)n child molestation cases evidence of other similar or connected sexual offenses against children is admissible to corroborate *594the testimony of the victim as well as to show the lustful disposition of the defendant. (Cits.)” ’ Anglin v. State, 173 Ga. App. 648, 652 (327 SE2d 776) (1985).” Pittman v. State, 178 Ga. App. 693, 694 (4) (344 SE2d 511).

Decided July 12, 1990 Rehearing denied July 30, 1990. Fred D. Harrell, for appellant. William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

This testimony was admitted by the trial court solely for the limited purpose of showing “the mental state, identity, intent or bent of mind of the defendant. . . .” Moreover, it was evidence which could, if so found by the jury, demonstrate a continuum of the defendant’s lustful disposition and propensity to engage in acts constituting the offense of child molestation.