Other Act Evidence Must Pass Balancing Test for Admissibility

The defendant was indicted for child molestation and the State moved to introduce evidence of two prior unrelated allegations that the defendant (1) forced his seven-year-old son to perform oral sex on him, and (2) forced another son to engage in sexual acts with a minor female while the defendant watched.

At a pretrial hearing, the trial court ruled that the evidence was admissible because the specific evidentiary rules with respect to sexual assault and child molestation cases (O.C.G.A. §§ 24-4-413 and 24-4-414) obviated the need for the balancing test set out in O.C.G.A. § 24-4-403: “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.”

At the outset, the Court of Appeals noted that § 24-4-414 reads: “evidence of the accused’s commission of another offense of child molestation shall be admissible.” Thus, the Court construed this language as creating a rule of inclusion, with a strong presumption in favor of admissibility. However, the Court also noted that the term admissible meant “capable of being legally admitted,” which implies that it may or may not be admitted.

The Court ultimately concluded that the evidence may be excluded under the balancing test in § 24-4-403 and that the trial court must give the defendant an opportunity to show whether the prior acts would cause unfair prejudice, confuse the issues, or mislead the jury. Therefore, the trial court’s failure to do so was an abuse of discretion.

As a result, the case was remanded back to the trial court for a hearing on whether this evidence would pass the balancing test in § 24-4-403.