Court Affirms Exclusion of Other Sexual Acts by Defendant in Rape Trial

In State v. Isham, the defendant is accused of offering a woman a ride home from a shopping center and then raping her. The State sought to introduce evidence that two nights after the alleged rape, the defendant was arrested at the same shopping center for public indecency. The Court ultimately held that the trial court did not abuse its discretion in finding that the probative value of this evidence was outweighed by the prejudicial effect.

The defendant was indicted for the offenses of rape, aggravated assault with intent to rape, and two counts of aggravated sodomy. The alleged victim stated that the defendant offered her a ride home from a local Walmart. She claimed that, instead of taking her home, he took her to an isolated area where he forcibly raped her and made her perform acts of sodomy. Two nights after this alleged incident, the defendant was arrested at the same Walmart for exposing himself to a female customer inside the store.

The State argued that the evidence of the defendant’s subsequent sexual conduct at the store was relevant because it showed his propensity for initiating unwanted sexual contact with women “at a very particular place ­— the West Rome Walmart.” The defense attorney argued that this evidence could not be used to establish this sexual predisposition because the incident occurred after the alleged rape. The defense attorney also argued that the fact that the defendant initiated sexual contact with women at Walmart was irrelevant to the ultimate question of whether the sexual acts with the alleged victim were consensual.

The trial court concluded that the prejudicial effect of this evidence would be extremely high since, due to the “offensive nature” of the exposure incident, there was a likelihood the jury would convict the defendant of the alleged rape simply because of the other sexual conduct. Moreover, the court reasoned that the State’s need to establish that the defendant was repeatedly soliciting sex at the Walmart was diminished by the fact that the defendant was going to agree that he and the alleged victim had sex — claiming that she consented to the sexual acts.

On appeal, the State argued that the trial court applied an incorrect legal standard in determining the admissibility of the evidence when it considered the potential defenses the defendant may raise at trial. The State also argued that the trial court failed to take into account the fact that Georgia’s appellate courts have repeatedly held that the exclusion of other act evidence due to potential prejudice is an extraordinary remedy that should be used sparingly.

The Court of Appeals held that there was no error in the trial court’s consideration of the defendant’s potential defenses as they were “inextricably intertwined” with the court’s consideration of the State’s need for, and probative value of, the evidence of the other sexual acts. Also, the Court ruled that the trial court’s finding that the potential prejudicial effect of this evidence outweighed its probative value was “within the range of possible conclusions the court could have reached…”

As a result, the Court of Appeals affirmed the trial court’s ruling excluding the other sexual acts and remanded the case for trial on the defendant’s charges of rape, aggravated assault and aggravated sodomy.