Taylor v. the State

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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
November 3, 2016
In the Court of Appeals of Georgia
A16A1122. TAYLOR v. THE STATE.
PHIPPS, Presiding Judge.
A jury found Melvin Taylor guilty of two counts each of child molestation,1
aggravated child molestation,2 and statutory rape,3 one count of rape, and one count
of influencing a witness.4 Taylor appeals his convictions, arguing that the trial court
erred in admitting certain evidence. For the reasons set forth below, we disagree and
affirm.
1
OCGA § 16-6-4 (a).
2
OCGA § 16-6-4 (c).
3
OCGA § 16-6-3 (a).
4
OCGA § 16-10-93.
Viewed in a light most favorable to the jury’s verdict,5 the evidence shows that
in March 2010, T. L., who lived primarily with her grandmother, was visiting her
mother for the weekend at the home her mother shared with Taylor, T. L.’s younger
sister and brother, and Taylor’s two young children. One night, after everyone else
had gone to bed, Taylor came into the living room where T. L., then fourteen years
old, was lying on the couch. Taylor grabbed T. L.’s breasts, pulled down her pants
and underwear, and performed oral sex on her. Taylor then had vaginal intercourse
with T. L.
The following night, Taylor grabbed T. L.’s arm while she was watching
television in the living room with her eleven-year-old sister, Q. J. Taylor forced T. L.
into the den and directed her to perform oral sex on him. Taylor then returned to the
living room where he grabbed Q. J. and pushed her into the den. Taylor pushed Q. J.
onto the sofa, pulled down her pants and underwear, and “stuck his penis in [her]
vagina.”
T. L. returned home and disclosed the assault to her aunt and grandmother, who
called the police. After Q. J. was removed from her mother’s home, her mother and
Taylor telephoned her together. Taylor told Q. J. that, if she told what happened, he
5
See Alvarado v. State, 257 Ga. App. 746, 747 (1) (572 SE2d 18) (2002).
2
could get fifteen years in prison, Q. J.’s mother could get in trouble, and that Q. J.
could “go to juvenile.”
At trial, both T. L. and Q. J. testified as to what Taylor had done to them. T. L.
also testified that she had seen Taylor grab Q. J. and push her into the den, closing the
door. T. L. described that she had heard “squeaking” and “slapping” noises coming
from the den. And when Q. J. came out of the den ten or fifteen minutes later, T. L.
had observed that she was walking “funny.”
The state also presented DNA evidence from a rape kit performed on T. L. the
day after her outcry. A pediatric nurse practitioner, who was qualified as an expert in
child sexual assault examinations, testified that she had performed the rape kit on
T. L. The rape kit, as well as buccal swabs and hair from Taylor, were sent to the
Georgia Bureau of Investigation (“GBI”). A forensic biologist with the GBI testified
that she had concluded that the DNA obtained from T. L.’s vaginal and cervical
swabs matched that of Taylor.
1. Taylor argues that the trial court erred by allowing testimony about an
allegedly similar transaction because there were “no similarities” between the
testimony and the acts alleged by T. L. and Q. J.
3
We review a trial court’s decision to admit similar transaction evidence for
abuse of discretion.6 Moreover, “when considering the admissibility of similar
transaction evidence, the proper focus is on the similarities, not the differences,
between the separate crime and the crime in question.”7 “As a general rule, the sexual
molestation of young children or teenagers, regardless of the type of act, is
sufficiently similar to be admissible as similar transaction evidence.”8
After holding a preliminary hearing, the court allowed the testimony of J. K.
as a similar transaction to show course of conduct, bent of mind, and lustful
disposition.9 J. K., Taylor’s sister, testified at trial regarding an incident that occurred
when she was nine or ten years old and Taylor (who was four or five years older than
6
Pareja v. State, 286 Ga. 117, 121 (686 SE2d 232) (2009).
7
Id. (citation and punctuation omitted).
8
Woods v. State, 304 Ga. App. 403, 406 (2) (696 SE2d 411) (2010) (citation
and punctuation omitted; emphasis in original).
9
Taylor was tried in 2012, prior to the effective date of Georgia’s new
Evidence Code. See Ga. L. 2011, p. 99, 100, § 1 (adopting the new Code as of
January 1, 2013). “Under the law then in effect, ‘course of conduct’ was considered
a proper purpose for admitting similar transaction evidence. . . . Under the new
Evidence Code, similar transaction evidence may be admissible for purposes
including proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” Redding v. State, 297 Ga. 845, 848 n. 2 (778 SE2d
774) (2015) (citations and punctuation omitted).
4
she) was a teenager. J. K., who was 26 years old at the time of trial, recalled playing
“mommies and daddies” with Taylor and a group of cousins, all of whom were
younger than Taylor. J. K. explained that the game involved “[s]exual contact,” like
“touching and feeling,” kissing on the mouth, and touching private parts.
While playing “mommies and daddies,” Taylor only touched J. K.’s arm. At
one point, he asked if J. K. would tell anyone if he kissed her on the mouth. She
replied that she would tell her mother. On a second occasion, Taylor asked J. K. to
play “mommies and daddies,” but she refused, having concluded that it was “not
appropriate” to play such a game with her brother.
We find no abuse of discretion in the admission of J. K.’s testimony as it tends
to show Taylor’s lustful disposition toward young girls and “inappropriate or
questionable behavior,” even though the prior conduct was not illegal and there was
thus no prior police report and investigation.10 Moreover, the incident, which
occurred about 15 years prior to the crimes at issue, was not too remote in time to the
charged crimes.11 “Where, as here, the similar transaction evidence is otherwise
10
See Leaptrot v. State, 272 Ga. App. 587, 597 (3) (a) (612 SE2d 887) (2005).
See also Bibb v. State, 315 Ga. App. 49, 51 (2) (b) (726 SE2d 534) (2012).
11
See Leaptrot, supra at 599 (3) (c) (noting that courts have upheld admission
of evidence where the similar transaction occurred 11-19 years prior to the crime at
5
admissible, a time lapse such as this one goes to the weight and credibility of the
evidence and does not demand its exclusion.”12
2. Taylor contends that the trial court erred by admitting evidence that he was
hiding under a bed during a prior arrest and that he was wearing a dress when taken
into custody for that crime.
“We review a trial court’s evidentiary rulings under an abuse of discretion
standard of review. . . . [H]owever, we accept a trial court’s factual findings unless
they are clearly erroneous.”13
Prior to trial, Taylor filed a motion in limine to exclude evidence regarding his
criminal history and arrests. Specifically, Taylor sought to exclude evidence that,
when he was arrested on a prior charge, he was found hiding under a bed. After his
arrest, Taylor made a statement to law enforcement, which referenced a possible
obstruction charge. Taylor argued that this evidence was not admissible as a similar
transaction because he was not charged with obstruction in the current case. The trial
issue).
12
Id. (citation and punctuation omitted).
13
Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012) (citations and
punctuation omitted).
6
court ordered the state to redact from Taylor’s statement any reference to a possible
obstruction charge.
At trial, the state introduced as a similar transaction evidence that Taylor had
molested the young child of his former girlfriend. The acts committed on this child
had led to Taylor’s arrest.
The police officer who had arrested Taylor testified that she found Taylor
“under the bed” and that she had to tell him to come out several times before he did
so.
A child protective services worker also testified that she had investigated the
case and created a safety plan for the child. The worker was at the police station when
Taylor was brought in to the station. She described her observations regarding
Taylor’s custodial interview, testifying that Taylor had admitted that he had been
hiding under the bed when officers came to the house. She added that Taylor was
wearing a black dress during the interview: “I believe when they went to get him and
he was under the bed he did not have a shirt on and . . . he pointed out to grab a black
item on the floor or somewhere and they got that item for him to wear. . . . And it just
ended up being a dress.”
7
Assuming without deciding that Taylor’s motion in limine and objection at trial
preserved this issue for appeal,14 any error in admitting testimony regarding the
circumstances of Taylor’s prior arrest was harmless in light of the overwhelming
evidence of Taylor’s guilt, including the testimony of the two victims and the DNA
evidence.15
Judgment affirmed. Dillard and Peterson, JJ., concur.
14
But see Hernandez v. State, 291 Ga. App. 562, 564 n. 2 (662 SE2d 325)
(2008) (“A motion in limine preserves an issue for appeal without a contemporaneous
objection at trial, but this rule cannot be invoked to preserve a different, if perhaps
related, error.”) (citation and punctuation omitted).
15
See Lowe v. State, 317 Ga. App. 442, 444 (731 SE2d 127) (2012) (“The
erroneous admission of evidence is harmless where it is highly probable that the error
did not contribute to the verdict in light of the otherwise overwhelming evidence of
guilt.”) (citation and punctuation omitted).
8