Maner v. State

358 Ga.App. 21

852 S.E.2d 867

MANER

v.The STATE.

A20A1759

Court of Appeals of Georgia.

December 21, 2020

David D. Marshall, Atlanta, for Appellant.

John Herbert Cranford Jr., District Attorney, Meaghan Jordan Smith, Assistant District Attorney, for Appellee.

Colvin, Judge.

After a jury trial, John Williams Maner was convicted of four counts of child molestation ( OCGA § 16-6-4 (a) ) against two children. He appeals from the denial of his motion for new trial, arguing that the trial court erred by admitting evidence of other acts pursuant to OCGA § 24-4-414, in its jury instruction as to the evidence of other acts, and in admitting Maner's reported flight as evidence of "consciousness of guilt." He also argues that he received ineffective assistance of counsel. For the following reasons, we affirm.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence shows that Maner often visited his sister, Janis, in LaGrange. On one such visit, sometime around 2006, Maner's 12-year-old grandniece, A. M., was at the home. As A. M. was rocking her baby sister to sleep, Maner walked back and forth in front of her several times while mouthing inaudible words. When A. M. put the baby to sleep and joined Janis in the kitchen, Maner sat at the table and continued to mouth inaudible words. When A. M. asked Maner what he was saying, he touched her hand and said, "I want to lick your pussy." A. M. told Janis about the encounter.

In August 2010, Maner was at Janis's house for a birthday party. Another grandniece, A. G., then an 11-year-old, was also at the party. A. G. asked to use Maner's computer, and he told her that she could use it later that evening. That evening, after the rest of the family was in bed, Maner sat next to A. G. on the couch and let her use the computer. While they were seated on the couch, Maner began to ask A. G. about her personal life and to touch her back. Maner then asked if he could kiss her. A. G. told him that he could, and he began to kiss her cheek. Maner then placed his hand on her leg, rubbed her thigh and moved his hand toward her crotch. A. G. became uncomfortable and left the room. Afterward, A. G. told Janis and her father, and law enforcement was called. A. G. told the responding officer that Maner had kissed her and touched her inappropriately.

1. Maner argues that the trial court erred by admitting evidence, pursuant to OCGA § 24-4-414 (a), that he committed prior acts of child molestation. Maner argues that the other instances of child molestation should have been excluded because they were too remote in time from the offenses alleged in the indictment and were highly prejudicial. We review the admission of other acts evidence pursuant to OCGA § 24-4-414 for an abuse of discretion, King v. State , 346 Ga. App. 362, 364 (1), 816 S.E.2d 390 (2018), and we discern no such abuse here.

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." The State filed a pre-trial notice to introduce other acts evidence pursuant to OCGA § 24-4-414, and a hearing was held prior to trial. The trial court ruled that the evidence could be admitted, but agreed to issue a limiting instruction during trial.

At trial, the State presented evidence of two other acts of child molestation by Maner. A limiting instruction was read to the jury prior to the testimony of each witness. Janis testified about an experience with her brother in their childhood home. Janis testified that in 1958, when she was eight years old, Maner called for her to come up to a storage loft in their house. Maner, then 14 years old, was on a cot in the loft with an erect penis. He unsuccessfully attempted to penetrate her before she escaped. Janis explained that she never told anyone about the occurrence because "[i]t's just something we didn't talk about[,]" and because she managed to block it from her memory for a long time.

The State also presented evidence of an earlier act of child molestation by Maner against Gabrielle Guy. Guy testified that Maner is her mother's friend. In 2002, when Guy was nine years old, Maner spent the night at their house in Pensacola, Florida and slept on their couch. When Guy left her room in the middle of the night to get a glass of water, Maner asked her to come over and sit next to him on the couch. Guy complied, and Maner began running his hands on her legs around her thighs and underwear. The next morning, Guy told her parents about the incident, and they called the police.

Maner argues that the trial court erred in concluding that the probative value of this evidence was not substantially outweighed by its unduly prejudicial effect.

OCGA § 24-4-414 (a) ("Rule 414")

create[s] 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. Nevertheless, evidence that is admissible under these rules may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. OCGA § 24-4-403 [(‘‘Rule 403’’)]. The trial court is required to conduct a balancing test under Rule 403 when considering whether evidence is admissible under [Rule 414]. This determination lies within the discretion of the trial court[.]

(Citations and punctuation omitted.) Dixon v. State , 350 Ga. App. 211, 213-214 (1), 828 S.E.2d 427 (2019). Upon review of the trial court's decision under OCGA § 24-4-403, we determine whether the trial court

properly considered all the circumstances surrounding the extrinsic act evidence, including the similarities between the charged act and the extrinsic act, the remoteness in time between the charged act and the extrinsic act, and the prosecution's need for the extrinsic act evidence. And in doing so, we must be mindful that the exclusion of relevant evidence under OCGA § 24-4-403 is an extraordinary remedy which should be used only sparingly, since it permits the trial court to exclude concededly probative evidence. Thus, we look at the evidence in the light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.

(Citations and punctuation omitted.) McAllister v. State , 351 Ga. App. 76, 82 (1), 830 S.E.2d 443 (2019).

Here, the trial court considered each of the factors delineated above, and concluded that the evidence of other acts should be admitted with a limiting instruction. Upon review, we conclude that the trial court did not abuse its discretion in admitting evidence regarding Maner's prior acts because the evidence was relevant to show Maner's "intent, identity, and propensity to commit the crimes." Dixon , 350 Ga. App. at 214 (1), 828 S.E.2d 427. Both of the prior incidents that the State sought to admit were relevant "to show [Maner's] lustful disposition with respect to preteen or teenaged girls and his pattern of molesting young girls with whom he was living." Harris v. State , 340 Ga. App. 865, 869 (1) (b), 798 S.E.2d 498 (2017).

Further, although more than 50 years elapsed between Maner's prior offense against Janis and the current offense, such an interval, "standing alone, is not enough to require that evidence of the similar transaction be excluded. ... The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility." (Citation and punctuation omitted.) Banks v. State , 250 Ga. App. 728, 730-731 (3), 552 S.E.2d 903 (2001) (disapproved on other grounds by State v. Burns , 306 Ga. 117, 124 n. 3, 829 S.E.2d 367 (2019)). Accord Harris , 340 Ga. App. at 868-869 (1) (b), 798 S.E.2d 498 (evidence of molestation that occurred 44 years earlier relevant and admissible under Rule 414 to show pattern of molestation despite remoteness in time); Bryson v. State , 210 Ga. App. 642, 643 (2), 437 S.E.2d 352 (1993) (31-year lapse between prior sexual offense and the sexual offense on trial went to weight and credibility and not its admissibility).

In light of the "strong presumption in favor of admissibility," we cannot say that the trial court abused its discretion in allowing the prior acts to be admitted. Wilkerson v. State , 356 Ga.App. 831, 834 (1), 849 S.E.2d 677 (2020).

2. Maner argues that the trial court erred in its jury instruction on the "other acts" evidence introduced at trial. We find no error.

Here, Maner's trial counsel did not object to the jury instruction at issue. This failure to object precludes "appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties." OCGA § 17-8-58 (b). See Alvelo v. State , 290 Ga. 609, 614 (5), 724 S.E.2d 377 (2012). To make this determination, this Court must consider "whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings." (Citations and punctuation omitted.) Id. at 615 (5), 724 S.E.2d 377.

In Dixon, 350 Ga. App. at 215 (2), 828...