Maqrouf v. State

349 Ga.App. 174

825 S.E.2d 569

MAQROUF

v.The STATE.

A18A1850

Court of Appeals of Georgia.

March 6, 2019

Michael Wayne Tarleton, for Appellant.

Darius T. Pattillo, Dist. Atty., Sharon Lee Hopkins, Asst. Dist. Atty., Duluth, for Appellee.

Doyle, Presiding Judge.

Following a jury trial, Mohammed Azozz Maqrouf was convicted of cruelty to a child in the first degree for kicking his daughter.¹ He appeals the denial of his amended motion for new trial, arguing that the trial court erred (1) by admitting evidence that Maqrouf subsequently molested another daughter; and (2) by refusing to charge the jury on the lesser included offense of second-degree cruelty to a child. For the reasons that follow, we reverse.

On appeal from a criminal conviction, the defendant is no longer presumed innocent[,] and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. So long as there is some competent evidence to support each fact necessary to make out the State's case, even if contradicted, the jury's verdict will be upheld.²

So viewed, the evidence shows that Maqrouf and his wife, Zahoor, have two daughters. On June 15, 2012, Zahoor brought the girls—five-year-old S. M. and their two-year-old—to the gas station that she owned, and while there, she and Maqrouf argued. S. M. began to cry and urged Zahoor to leave, saying "let's go." Maqrouf told Zahoor to "make this little bitch [be] quiet" and kicked S. M. in the stomach, causing her to land against the wall across the room. When she tried to intervene and protect S. M., Maqrouf slapped Zahoor in the face and struck her in her back. When Zahoor attempted to gather the girls to return home, Maqrouf grabbed the two-year-old and threatened to snap her neck if Zahoor reported the incident to the police.

Zahoor did not call the police immediately after the incident. Instead, a day or two later, she called a detective with whom she was familiar after she saw Maqrouf enter their two-year-old daughter's room in the middle of the night, get into bed with the child, and then "ejaculate[ ] himself" with one hand while fondling his daughter under her underwear with his other hand. When the detective did not return her call immediately, Zahoor drove her children to the police department and reported both incidents.

Maqrouf was charged with first-degree cruelty to S. M. and family violence battery against Zahoor.³ Zahoor and S. M. testified about the incident, and the State introduced photographs Zahoor took depicting bruises on her own hand and on S. M. Zahoor also testified about multiple incidents of domestic violence committed by Maqrouf against her over a ten-year period, explaining that although she sometimes called the police, she usually recanted the allegations because her children "needed their father in their life."

Despite counsel's advice to the contrary, Maqrouf testified, insisting that both S. M.'s and Zahoor's testimonies about the June 15 incident were "lies" and suggesting that Zahoor fabricated the accusations to get back at him for issues regarding money and her family.

The jury found Maqrouf guilty of first-degree cruelty to a child, and he was sentenced to twenty years to serve the first ten in prison and the remainder on probation.⁴ The trial court denied his amended motion for new trial, and this appeal followed.

1. Maqrouf argues that the trial court erred by admitting Zahoor's testimony that she observed him molesting their two-year-old daughter a day or two after the incident giving rise to the charges in the instant case as evidence of prior difficulties. Tellingly Maqrouf's challenge to the admission of the subsequent child molestation accusation.

Before trial, defense counsel moved in limine "to exclude any and all testimony about the pending [child molestation] charges of my client that he has in Clayton County," arguing that "it would be highly prejudicial and character evidence[,] as he has not been convicted of these charges yet." The State countered that the evidence was admissible under OCGA § 24-4-404 (b) ("Rule 404 (b)") to demonstrate "motive, plan, [and] intent" and stated that it showed "a pattern of behavior ... a pattern of violence in this household." The prosecutor asserted that the State was not required to give notice that it intended to introduce the evidence because it was being "offered to prove the circumstances immediately surrounding the charged crime to prove motive or any and all prior difficulties between the accused and any of the alleged victims...." The prosecutor stated that after Zahoor witnessed Maqrouf "doing this to her two children, that was it for her. That was the breaking point. That's what caused the nexus between these two things and for the police to finally get involved."

The trial court asked the prosecutor whether "the victim is the same in both cases," and the prosecutor responded, "Yes." The court then denied the motion in limine, stating: "I'm going to find that the Clayton County conduct is relevant and that the probative value is not substantially outweighed by its undue prejudice and admit the prior difficulty evidence over objection." Although the court did not specify the purpose for admitting the evidence in its ruling, it later gave the jury the pattern charge on prior difficulties,⁵ as requested by the State:

Evidence of prior difficulties between the defendant and the alleged victim has been admitted for the sole purpose of illustrating, if it does, the state of feeling between the defendant and the alleged victim. Whether this evidence illustrates such matters is solely a matter for you, the jury, to determine, but you are not to consider such evidence for any other purpose.

During the trial, Zahoor testified that a day or two after the incident giving rise to the charges in the instant case, she witnessed Maqrouf molesting their two-year-old daughter, not S. M. (the victim in the instant case), as the State had represented to the trial court during the motion in limine.⁶

(a) Pursuant to Rule 404 (b), although evidence of other acts is inadmissible to show an accused's propensity to commit a crime, it may "be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."⁷ The State is not required to give notice of the defense in advance of trial "when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim."⁸

"Unlike similar transactions, prior difficulties do not implicate independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus."⁹

Evidence of prior difficulties between an accused and a victim is a type of character evidence which should be received with care and should not be admitted at all if there is no probative connection with the present case. For there to be a probative connection between the prior difficulties and the present case, there must be: some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties.¹⁰

Although the Supreme Court of Georgia has affirmed the admission of prior difficulties between the defendant and a person other than the victim in the charged case, the Court explained that such evidence was admissible "to draw together the preceding and subsequent acts and give color of cause and effect to the transaction and to show a continuous course of conduct."¹¹ As this Court has previously explained, "[a]lthough evidence of prior difficulties should be received with care and should not be admitted at all if there is no probative connection with the present case, [if] the evidence sheds light on the defendant's conduct toward the victim, its relevance outweighs its prejudicial effect."¹²

"We review a trial court's decision to admit evidence of prior difficulties between the parties for a clear abuse of discretion."¹³ But if "a trial court's ultimate ruling is subject to only an abuse of discretion review, the deference owed the trial court's ruling is diminished when the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree."¹⁴ Because the prosecutor in this case (presumably mistakenly) misled the trial court by stating that the victim in the molestation case was the same child as the victim in the instant case, our deference to the court's ruling on the admission of the other acts evidence is diminished.¹⁵

Here, Maqrouf's sexual molestation of his two-year-old daughter a day or two after his preceding act of kicking five-year-old S. M. during an argument with his wife does not constitute a "continuous course of conduct," nor does evidence of the molestation shed light on Maqrouf's motives or his conduct toward S. M. Instead, they are unrelated acts.

Pretermitting whether the evidence was relevant, however, it does not satisfy the requirements of OCGA § 24-4-403 ("Rule 403"), which provides: "Relevant evidence may 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." In conducting the Rule 403 balancing test, we must consider whether the trial court "properly considered all the circumstances surrounding the [other] act evidence, including the similarities between the charged act and the [other] act, the remoteness in time between the charged act and the [other] act, and the prosecution's need for...