Opinion
44956.
ARGUED JANUARY 5, 1970.
DECIDED FEBRUARY 9, 1970.
Child molestation. Fulton Superior Court. Before Judge Holt.
Garland Garland, Edward T. M. Garland, Reuben A. Garland, for appellant.
Lewis R. Slaton, District Attorney, Tony H. Hight, Joel M. Feldman, for appellee.
1. (a) Representations or transactions may be received in evidence as tending to show motive or intent when the transactions are so connected in time and so similar in their other relations that the same motive may reasonably be imputed to all.
(b) The representations or transactions admissible under (a) above may have occurred subsequent to the event for which the defendant was prosecuted as well as prior to the event.
ARGUED JANUARY 5, 1970 — DECIDED FEBRUARY 9, 1970.
The defendant appeals from his conviction for child molestation ( Code Ann. § 26-1301 (a)) and the denial of his amended motion for new trial. The indictment charged and the State's evidence showed that on October 12, 1968, the defendant did certain specifically described sexual acts to a female child. The defendant, the victim, and her family were next-door neighbors and the crime occurred in defendant's house. The victim's sister, also under age 14, testified that approximately one month prior to the act charged, the defendant placed his arm around her and asked if he could "play with her." Shortly thereafter, defendant attempted to molest the sister in a manner similar to that used on the present victim. These latter two incidents likewise took place on the defendant's premises. The father of the victim testified that around "Christmastime" 1968, while he and all of his children were in their backyard, the defendant, then in his yard, made a gesture with an upraised finger which they all observed. The testimony of the sister and the father was admitted over objection. Counsel for the accused moved for mistrials on the basis of the admission of this evidence, which motions were denied. The trial court charged the jury in effect that the evidence of the sister and father concerning the other transactions could be considered by them for a limited purpose on the question of motive, plan, scheme, course of conduct, design, and other matters dependent upon the defendant's state of mind on the subject involved.
1. Six of the seven enumerations of error are all connected with the admissibility of the evidence relating to the prior and subsequent conduct of the defendant. Defendant argues that this evidence tends to show the commission of wholly independent crimes by the defendant and attacks his character which was not in issue. It is the general rule in a criminal prosecution that evidence which in any manner shows or tends to show that the defendant has committed another independent crime from that for which he is on trial is irrelevant and inadmissible. Code § 38-202. Cawthon v. State, 119 Ga. 395, 396 ( 46 S.E. 897); Merritt v. State, 168 Ga. 753 ( 149 S.E. 46); Mims v. State, 207 Ga. 118 ( 60 S.E.2d 373). The exception to this rule arises where the facts of the other offense tend to demonstrate a similarity of method, plan, scheme, state of mind, or intent. Sloan v. State, 115 Ga. App. 852 ( 156 S.E.2d 177); Mims v. State, supra. With reference to the prior molestation of the sister, this evidence is well within the exception as it relates to the defendant's method of operation, which is markedly similar in each instance, and is relevant on the issue of his lustful intent. Furthermore, the defendant cannot now complain, as he inquired into this prior offense during his cross examination of this witness. Salisbury v. State, 222 Ga. 549 (2) ( 150 S.E.2d 819); Maddox v. State, 118 Ga. App. 678, 679 ( 164 S.E.2d 861). The defendant contends that the father's testimony is inadmissible for the same reason and even more so, as it occurred subsequent to the commission of the crime for which the defendant was on trial. Regardless of whether the gesture is a criminal offense as contended by the defendant, the testimony is admissible as again being relevant to the issue of the defendant's method and state of mind, as the gesture was certainly subject to the interpretation that it was indicative of the way the defendant was charged with physically violating the child. The fact that the gesture took place subsequent to the commission of the offense is of no moment as the incident was not too remote in this case. Dorsey v. State, 204 Ga. 345, 350 ( 49 S.E.2d 886). 1 Wharton, Criminal Evidence § 245 (12th Ed., 1955). The trial court did not err in admitting the challenged evidence.
As we have held that the evidence was properly admitted, the attack on the instructions warranted by that evidence has no merit.
2. The evidence authorizes the conviction.
Judgment affirmed. Quillian and Whitman, JJ., concur.