FIFTH DIVISION

PHIPPS, P. J.,

DILLARD and PETERSON, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

April 20, 2016

In the Court of Appeals of Georgia

A16A0446. SUTTON v. THE STATE. PE-015C

PETERSON, Judge.

Steve Sutton, convicted of six counts of child molestation and one count of

aggravated child molestation, appeals from the denial of his motion for a new trial.

He argues that the trial court erred by (1) excluding one of the victim’s statements

that she was molested by someone other than him, and (2) denying his motion to

sever the molestation counts pertaining to one victim from those pertaining to the

other. Because the victim’s statement wasmerely evidence of the victim’smomentary

confusion, and because severance was unnecessary given that the molestation

allegations of each victim would have been admissible evidence in the other victim’s

case, we affirm.
Following a criminal conviction, we view the evidence in the light most

favorable to the jury’s verdict, and no longer presume the defendant is innocent.

Wallace v. State, 294 Ga. App. 159, 159 (1) (669 SE2d 400) (2008). So viewed, the

evidence shows that Sutton was the grandfather of the two victims, A. J. and C. S.

Sutton repeatedly touched C. S.’s genitals on numerous occasions when she was

approximately ten or eleven years old. Sutton also made C. S. touch him, and on one

occasion, removed her bathing suit bottom and touched her genitals with his tongue.

Several years later, when A. J. was four years old, Sutton placed some sort of

substance A. J. called “glue” on her genitals and touched her. 

Prior to the trial, the State filed a motion in limine to exclude the past sexual

history of A. J. Specifically, the State sought to exclude evidence of a prior sexual

incident between A. J. and another young child under the Rape Shield Statute. Sutton

argued that the evidence should be admitted to demonstrate the child’s knowledge of

sexual acts independent of the actions for which Sutton was indicted. The trial court

examined the parties’ arguments carefully and in detail before granting the State’s

motion, with the caveat that the State could not open the door by claiming that A. J.

had sexual knowledge that could have originated only from Sutton’s conduct. 

2
On the day of trial, Sutton indicated that he intended to play A. J.’s recorded

interview in which she initially identifies another child as having put the glue on her.

In the recorded interview, A. J. first discussed an incident in which the other young

child had touched her. When asked about the incident at issue in this case

immediately thereafter, A. J. said that the same young child had placed glue on her

genitals, but then immediately corrected herself to identify Sutton. The State argued

that this portion of the interview should be excluded under the trial court’s previous

ruling as prior sexual history. After much debate between the parties and careful

consideration by the trial court as to whether the statement merely constituted a prior

inconsistentstatement, the trial court expanded its prior ruling to exclude the portion

of A. J.’s interview in which she refers to the other young child. 

1. Sutton argues that the trial court erred by excluding A. J’s statements from

the recording of the interview played for the jury. Specifically, Sutton contends that

former OCGA § 24-2-3 did not require exclusion of A. J.’s statements as unrelated

sexual history, because her statement would be used to impeach her.1 We disagree.

1 To the extent Sutton challengesthe constitutionality of former OCGA § 24-2-

3 as applied, that argument is not preserved for appeal. The trial court did not

specifically address or rule on the question. See State v. Swartz, 277 Ga. App. 241,

241-42 (626 SE2d 210) (2006).

3
We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Gautreaux v. State, 314 Ga. App. 103, 106 (2) (722 SE2d 915) (2012).

Former OCGA § 24-2-32

providesthat generally in prosecutions for aggravated child

molestation “evidence relating to the pastsexual behavior of the complaining witness

shall not be admissible, either as direct evidence or on cross-examination of the

complaining witness or other witnesses[.]” The general rule is that evidence of prior

unrelated molestation is barred, and “is not admissible simply to show the victim was

confused.” Blackwell v. State, 229 Ga. App. 452, 454 (2) (494 SE2d 269) (1997). But

such evidence may be admissible to show other possible causes for behavioral

symptomstypically associated with child sexual abuse accommodation syndrome

3

or

to explain certain medical testimony introduced at trial. Tidwell v. State, 219 Ga. App.

233, 237-38 (5) (464 SE2d 834) (1995). “Such evidence may also be admissible to

2 Because the trial in this case occurred in 2009, prior to the January 1, 2013

effective date of our new evidence code, OCGA § 24-2-3 (the predecessor to OCGA

§ 24-4-412) applies. See Ga. L. 2011, p. 99, § 101.

3 Child sexual abuse accommodation syndrome reflects a variety of behavioral

stages displayed by children who have been sexually assaulted. For a more detailed

description of this condition, see, e.g., Allison v. State, 256 Ga. 851, 852 (2) (353

SE2d 805) (1987).

4
show the victim’slack of credibility where the victimhas made prior false allegations

of child molestation.” Berry v. State, 235 Ga. App. 35, 37 (2) (508 SE2d 435) (1998).

Here, none of the exceptions to the general rule of inadmissibility applies.

There was no expert testimony concerning child abuse accommodation syndrome, nor

was any medical evidence admitted. Sutton was also unable to show that A. J.’s

statementsregarding the other child were false. Finally, close review of the testimony

at issue reveals that A. J., who moments earlier had been discussing activity with the

other young child, merely misspoke and initially said the wrong name,4

but then

corrected herself to identify Sutton as the offender, and was consistent in that

testimony throughout the remainder of the interview, although she referred to Sutton

as both “Poppa Johnson” and “Poppa Sutton.” As a result, we cannotsay that the trial

4 Even if we were to pluck A. J.’s misstatement — which she immediately

corrected — from its context in the discussion of the unrelated molestation that had

taken place moments earlier, and consider it instead in isolation, any error in

excluding the misstatement was harmless. See Mobley v. State, 265 Ga. 292, 294 (4)

(455 SE2d 61) (1995) (“it is an old and sound rule that error to be reversible must be

harmful”). A. J. was consistent in her interview that Sutton molested her, and her

fleeting misstatement that she immediately corrected cannot be fairly equated with

her having identified some other person as the offender. 

5
court abused its discretion in excluding A. J.’s testimony pertaining to the other

young child.

5

2. Sutton next argues that the trial court erred by refusing to sever the

allegations pertaining to each victim into separate trials because (1) the allegations

pertaining to each victim were too remote in time and were too different to have been

combined into a single trial, and (2) the incidents pertaining to C.S. would not have

been admissible as similar transaction evidence in the trial pertaining to A. J. Sutton

also argues that he was prejudiced by the failure to sever the charges pertaining to

each victimbecause the combination of chargesinto a single trial made his conviction

more likely. Again, we disagree.

We review the trial court’s decision to grant or deny a severance for abuse of

discretion. Gilbert v. State, 163 Ga. App. 688, 690 (3) (295 SE2d 173) (1982).

Severance is mandatory “[w]hen two or more crimes of the same general nature are

committed against different persons, at different times and places, and are charged in

separate counts of an indictment . . . if the crimes are joined solely because they are

of the same or similar character.” Machiavello v. State, 308 Ga. App. 772, 773 (2)

5

 The dicta Sutton relies on in Wagner v. State, 253 Ga. App. 874 (560 SE2d

754) (2002) does not change our analysis here. 

6
(709 SE2d 28) (2011) (emphasis in original). But “[i]f the offenses are not joined

solely because they are of the same or similar character, and evidence of one charged

offense would be admissible as a similar transaction during trial on another charged

offense, the trial court is vested with discretion in deciding whether to grant a motion

to sever.” Id. Severance does not have to be granted when, in the trial court’s

discretion, the complexity of the evidence and number of offenses charged do not

impinge “upon a fair determination of the defendant’s guilt or innocence as to each

offense charged” Id. at 774 (2) (citation and punctuation omitted). 

Here, although the charged offenses occurred on different dates and involved

different victims, they showed Sutton’s “common motive, lustful disposition, and

bent of mind to satisfy his sexual desires.” Stepho v. State, 312 Ga. App. 495, 500 (3)

(718 SE2d 852) (2011). See also Wright v. State, 259 Ga. App. 74, 77-78 (3) (b) (576

SE2d 64) (2003) (permitting charge of sexual battery against adult daughter to be

included along with charges of child molestation involving grandson, as alleged

battery showed defendant’s “bent of mind and pattern of conduct against members of

his family”).6 Notably, Sutton “gained access to his second victim . . . through his

6 These cases were decided under the prior evidence code in which bent of

mind was a ground upon which similar transaction evidence could be admitted. 

7
familialrelationship” because both victims were his granddaughters. Stepho, 312 Ga.

App. at 500 (3). Despite the passage of time and other minor differences between the

two offenses, the trial court could find that the circumstances related to Sutton’s

molestation of each victim would have been admissible as similar transaction

evidence had there been separate trials for each. Id. (citing Collins v. State, 310 Ga.

App. 613, 617 (2) (714 SE2d 249) (2011) (“The mere difference in the victims’ ages,

sex, and specific acts of molestation did not render the similar transaction

inadmissible.”)). “Where the evidence of one crime would be admissible in the trial

of the other crime, it cannot be said that the trial court abused its discretion in denying

appellant’s motion for severance.” Id. (citation omitted).

Finally, “this case was not so complex as to impair the jury’s ability to

distinguish the evidence and apply the law intelligently as to each offense.” Id.

(citation omitted). Indeed, the jury found Sutton not guilty of aggravated sexual

battery with respect to A. J. Consequently, we conclude that the trial court did not

abuse its discretion in denying Sutton’s motion to sever and motion for new trial on

this basis.

Judgment affirmed. Phipps, P. J., and Dillard, J., concur.

8