McDonald v. State , 249 Ga. App. 1 ( 2001 )

On Motion for Reconsideration.

On motion for reconsideration, the State relies heavily on an alleged “confession” or admission against penal interest made by McDonald to the victim’s mother to argue that error in admitting the pornographic images was harmless. Several months after the alleged incident, the mother confronted McDonald while Laura Scott and McDonald were visiting in her home. She testified that she told McDonald she knew about e-mails he had exchanged with the victim and told him to “tell me what happened.” According to the mother, McDonald responded by saying, “I believe the term is heavy petting.” She testified that McDonald also admitted he touched the victim under her blouse on her bare skin, exposed himself to the victim, and kissed her.

While admitting that the victim’s mother confronted him, McDonald denied ever using the term “heavy petting” and indicated that he was shocked and surprised by her behavior. He testified that she was yelling and would not allow him to talk and that while she was making accusations against him, he was shaking his head and saying, “uh uh” but that he “really didn’t actually say anything and if I said anything, she wouldn’t have heard it anyway.” He stated that she “did not give me a chance to say anything.” He denied ever placing his hands under the victim’s clothing, touching her breasts or vaginal area or otherwise touching any of her private parts, or kissing her.

The evidence against McDonald is troubling. This 21-year-old man did, for example, exchange questionable e-mails with the 12-year-old victim. And as argued by the State, in those cases in which we concluded that error was harmful, the evidence did not show an admission against interest by a defendant. But any such alleged admission, as well as other potentially inculpatory evidence in this case, does not render harmless the error in admitting the pornographic images.

Here, as in Frazier v. State, 241 Ga. App. 125 (524 SE2d 768) (1999), the State did present “a substantial amount of inculpatory evidence.” Id. at 126. In Frazier, a child molestation case, the State was permitted to introduce similar transaction evidence showing that the defendant had molested another child. But despite this damaging evidence, we concluded that the admission of pornographic materials unrelated to the crime for which the defendant was charged was not harmless. The defendant presented alibi witnesses, the State offered no physical evidence, and the defendant testified on his own behalf. We concluded that under these circumstances, “the jury was required to decide between the credibility of the State’s inculpatory evidence and the credibility of [the defendant’s] exculpatory testimony.” (Citation and punctuation omitted.) Id. at 127.

The facts here are somewhat different from those in Frazier, as correctly argued by the State. No alibi witnesses testified, for example, and McDonald allegedly admitted to the mother that he touched the victim on her bare skin under her shirt, kissed the victim, and exposed himself to her. No inculpatory statement appears to have been made in Frazier.

But in Higginbotham v. State, 207 Ga. App. 424 (428 SE2d 592) (1993), the defendant did make an inculpatory statement in which he admitted his participation in a robbery. Id. at 425 (2). At trial, where, incidentally, a co-indictee identified him as a participant in the robbery, he recanted that earlier, inculpatory statement. Id. at 427 (4). We found that the trial court’s erroneous admission of evidence of another crime was not harmless under these circumstances. Even though the defendant had previously admitted to the crime, we concluded that we could not state “with any degree of certainty that the erroneous admission of the ‘other crimes’ evidence did not have any prejudicial effect on the jury’s determination as to appellant’s credibility and, consequently, on the jury’s determination as to his guilt.” Id.

By way of analogy here, even assuming that McDonald made inculpatory admissions to the victim’s mother, he denied these admissions at trial, and as in Higginbotham and Frazier, the jury was required to choose between the credibility of the State’s inculpatory evidence and the credibility of the exculpatory evidence presented by McDonald. We consequently cannot conclude with any certainty that the graphic images unrelated to the crime for which McDonald was charged did not have a prejudicial impact on the jury’s determination of McDonald’s “credibility and, consequently, on the jury’s determination as to his guilt.” Frazier, supra, 241 Ga. App. at 127 (1), citing Higginbotham, supra, 207 Ga. App. at 427 (4). A new trial is required.

Decided March 6, 2001 Reconsideration denied April 2, 2001. Gardner & Gardner, Milton F. Gardner, Jr., for appellant. Fredric D. Bright, District Attorney, Dawn M. Baskin, Assistant District Attorney, for appellee.

We note that Hite v. State, 208 Ga. App. 267 (430 SE2d 125) (1993) (physical precedent only), relied on by the State, is not controlling here. That case does not involve the admission of unrelated, highly prejudicial pornography, which the Supreme Court of Georgia prohibited in Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999). Moreover, the evidence here was not overwhelming, but it was in Hite.

Motion for reconsideration denied.