Kevin Donald Wilkerson v. State

SECOND DIVISION
MILLER, P. J.,
RICKMAN and MERCIER, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 30, 2020
In the Court of Appeals of Georgia
A20A1489. WILKERSON v. THE STATE.
MERCIER, Judge.
A jury found Kevin Donald Wilkerson, II, guilty of rape, aggravated child
molestation, aggravated sexual battery, enticing a child for indecent purposes, and
statutory rape.1 Following the denial of his motion for new trial, Wilkerson appeals,
asserting error in the trial court’s jury instructions and in the admission of other act
evidence pursuant to OCGA § 24-4-413. We find these claims to be without merit and
affirm.
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Wilkerson was acquitted on a count of incest.
Construing the evidence in favor of the verdict, the record reveals that the
victim, E. W., and Wilkerson lived in the same household as brother and sister.2 In
2006, when Wilkerson was 14 years old and E. W. was 6 years old, Wilkerson forced
E. W. into his bedroom where he touched her “private areas.” It began with Wilkerson
touching E. W. with her clothes on, and progressed to Wilkerson taking her clothes
off and touching her “private” with his fingers. E. W. explained that when she “told
him no,” he would hurt her, on one occasion by pushing her head into the corner of
a wall giving her a black eye. She explained further that Wilkerson touched her in this
manner nearly every day after school, and that it continued for two years “between
the sexual abuse and the physical.” When E. W. told her mother that Wilkerson
caused the bruising to her eye, her mother called the police and Wilkerson moved out
of the home. E. W. disclosed Wilkerson’s touching of her “private areas” to her other
brother, and later to the Department of Family and Children’s Services during an
investigation into the living conditions in the home.
In 2015, when E. W. was 14 years old and Wilkerson was 22 years old, she
lived with her father and Wilkerson lived in a home next door. One night, E. W.’s
2
There was some evidence presented that Wilkerson and E. W. may not have
been biological siblings.
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father instructed her to go help Wilkerson because Wilkerson’s “PlayStation had
disconnected from the Wi-Fi.” E. W. went to Wilkerson’s home, and after she assisted
him with the PlayStation, he told her to “sit down on his bed and he took off my
pants. And I told him not to. I told him to stop. And he like raised his arm like he was
going to hit me.” After taking off E. W.’s pants, Wilkerson put his finger in her
vagina, had sexual intercourse with her, and then forced her to put her mouth on his
penis. Afterward, Wilkerson told E. W. he would “hurt [her]” if she told anyone.
E. W. explained that Wilkerson called her to his home on at least ten other
occasions and she would make excuses not to go: “I would tell him that my dad was
awake and or that I was on my period or that I didn’t feel good.” Nevertheless, E. W.
would go because she feared that he would hurt her if she refused. During several of
the visits, Wilkerson placed his fingers inside E. W.’s vagina and had sexual
intercourse with her. E. W. did not report what Wilkerson had done out of fear, but
at some point, she told a friend who called the police.
The State also presented evidence that in 2006, when Wilkerson was 13 or 14,
he led a schoolmate, J. O., who was approximately the same age, to a shed in a
wooded area and told J. O. to pull his pants down. J. O., an adult at the time of trial,
testified that Wilkerson then attempted to “shove” his penis in J. O.’s anus, although
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he did not “succeed,” and tried to force J. O. to perform sodomy on him, but J. O.
refused. Wilkerson committed these acts on J. O. on two or three occasions. J. O.
made an outcry to a teacher and the incidents were reported to police.
Following the presentation of evidence, the jury found Wilkerson guilty of
rape, aggravated child molestation, aggravated sexual battery, enticing a child for
indecent purposes, and statutory rape, for the 2015 acts against E. W. The trial court
denied Wilkerson’s motion for new trial and this appeal followed.
1. Wilkerson challenges the trial court’s admission of the other act evidence
pursuant to OCGA § 24-4-413. That Code Section provides in relevant part: “(a) 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.”3 However, evidence that is admissible under this rule may still be excluded
under OCGA § 24-4-403 “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury or by
3
“[S]exual assault” pursuant to this Code Section includes sodomy and any
crime that involves “contact, without consent, between any part of the accused’s body
or an object and the genitals or anus of another person” or any crime that involves
“contact, without consent, between the genitals or anus of the accused and any part
of another person’s body[.]” OCGA § 24-4-413 (d) (1) - (3).
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considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” We will only overturn a trial court’s decision to admit other act evidence
where there is a clear abuse of discretion. Holzheuser v. State, 351 Ga. App. 286, 296
(2) (828 SE2d 664) (2019).
Wilkerson argues that the trial court failed to conduct a Rule 403 balancing test
to compare the similarity between the charged offenses and the other act. During the
hearing on the matter, following a proffer of the evidence and the argument of both
counsel, the trial court ruled, without explanation, that it would allow the prior act.
However, there is no requirement that the court explicitly analyze the balancing test
on the record. Dixon v. State, 350 Ga. App. 211, 215 (1) (828 SE2d 427) (2019). And
“absent some express showing that the trial court did not understand its obligation to
conduct the balancing test, we will not read such error into the trial court’s ruling.”
Id. at 214 (1). See also Fetterolf v. State, 223 Ga. App. 744, 746 (3) (478 SE2d 889)
(1996) (decided under the former Evidence Code; trial court not required to conduct
balancing test on the record).
Wilkerson further asserts that the State failed to prove the other act was a
violation of Georgia law. He argues that the testimony shows at most that Wilkerson’s
requests were not completed and that nothing occurred by force or against J. O’s will.
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To the contrary, J. O. testified that Wilkerson forcefully tried to “shove” his penis in
J. O.’s anus although he did not “succeed,” and attempted to force J. O. to perform
sodomy on him. From this testimony, the trial court could conclude that Wilkerson
committed a prior sexual assault as defined in OCGA § 24-4-413 (d) (1) - (3). See
OCGA § 16-6-2 (a) (1) (“A person commits the offense of sodomy when he or she
performs or submits to any sexual act involving the sex organs of one person and the
mouth or anus of another”); Green v. State, 249 Ga. App. 546, 549 (1) (b) (547 SE2d
569) (2001) (proof of penetration is not required establish sodomy, all that is required
is some contact). See also Ragland v. State, 332 Ga. App. 510, 513 (3) (773 SE2d
772) (2015) (decided under the former Evidence Code; similar transaction victim’s
testimony is alone sufficient to prove defendant committed acts).
Finally, Wilkerson asserts that the probative value of the other act evidence
was substantially outweighed by the danger of unfair prejudice because the trial court
ignored the stark differences between the prior act and the allegations in the
indictment. He points to the temporal remoteness of the prior act (11 years prior to
trial), the fact that he was a minor then, and evidence that the prior act involved an
allegation of a male-on-male sexual offense. However, temporal remoteness and a
difference in the victims’ sex do not demand exclusion. See Eubanks v. State, 332 Ga.
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App. 568, 569-570 (1) (774 SE2d 146) (2015) (act committed 17 years prior to trial
was admissible); Kirkland v. State, 334 Ga. App. 26, 29-30 (1) (778 SE2d 42) (2015)
(we have held that differences in the victims’ ages, sex, and specifics of molestation
do not render another act inadmissible). And, Wilkerson was old enough at the time
of the prior act to be held criminally responsible for his conduct. See OCGA § 16-3-1
(“A person shall not be considered or found guilty of a crime unless he has attained
the age of 13 years at the time of the act, omission, or negligence constituting the
crime.”). OCGA § 24-4-413 creates “a rule of inclusion, with a strong presumption
in favor of admissibility, and the State can seek to admit evidence under these
provisions for any relevant purpose, including propensity.” Dixon, supra, 350 Ga.
App. at 213 (1) (citations and punctuation omitted). In light of this strong
presumption, we cannot say that the trial court abused its discretion in allowing the
prior act which also involved sexual assault of a minor by force. See, e.g., id. at 214
(1).
2. Wilkerson contends that the trial court’s jury instructions as applied to the
aggravated sexual battery count were erroneous. As Wilkerson acknowledges, we
review this claim for plain error, because he did not object on this ground at trial. See
OCGA § 17-8-58 (b). To show plain error, Wilkerson has the burden of
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demonstrating “that the instructional error was not affirmatively waived, was obvious
beyond reasonable dispute, likely affected the outcome of the proceedings, and
seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Satisfying all four prongs of this standard is difficult, as it should be.” Hood v. State,
303 Ga. 420, 425-426 (2) (a) (811 SE2d 392) (2018) (citations and punctuation
omitted).
Following the court’s charge on the elements of aggravated child molestation
and sodomy, the court instructed the jury as follows:
Considerations of consent and force are irrelevant in child
molestation cases, for children under the age of 16 are legally incapable
of consenting to illicit sexual acts.
A person commits the offense of aggravated sexual battery when
he intentionally penetrates with a foreign object the sexual organ of
another person without the consent of that person.
Wilkerson argues that because the trial court instructed the jury that children
under the age of 16 are legally incapable of consenting to illicit sexual acts, and then
immediately after instructed the jury on aggravated sexual battery, which required the
State to prove that E. W. did not consent, the instruction was erroneous under State
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v. Williams, 308 Ga. 228 (838 SE2d 764) (2020). In Williams, however, the trial court
instructed the jury on the elements of aggravated sexual battery and then stated that
“As I previously charged, a child under the age of 16 cannot legally consent to any
sexual act.” Id. at 230. Here, the trial court explained that for child molestation, a
child under the age of 16 cannot consent to sexual acts. The court then properly
charged on the elements of aggravated sexual battery, which require a showing that
the victim did not consent. See OCGA § 16-6-22.2 (b). Wilkerson has therefore failed
to show that there was clear error. See Robinson v. State, 298 Ga. 455, 462 (5) (782
SE2d 657) (2016) (no plain error where jury instructions as a whole were proper).
Judgment affirmed. Miller, P. J., and Rickman,, J., concur.
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