SECOND DIVISION

MILLER, P. J.,

MERCIER and COOMER, 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.

Please refer to the Supreme Court of Georgia Judicial

Emergency Order of March 14, 2020 for further

information at (https://www.gaappeals.us/rules).

April 17, 2020

In the Court of Appeals of Georgia

A20A0615. STURGIS v. THE STATE.

MERCIER, Judge.

A jury found David Sturgis guilty of child molestation and aggravated child

molestation. Following the denial of his motion for new trial, Sturgis appeals,

asserting as error the trial court’s admission of evidence of prior acts of alleged

molestation. We discern no error and affirm.

Construed in the light mostfavorable to the jury’s verdict, the evidence showed

that Sturgis often resided with the victim A. O. and her mother and two sisters.

Sometime between 2011 and 2013, when A. O. was around 14 or 15 years old,

Sturgis, whom A. O. knew as “Fat Daddy,” lifted her shirt and put his mouth on her

breasts. On another occasion, Sturgis pulled out his penis and told A. O. to perform

oral sex on him. When A. O. refused, Sturgis used his hand to force her head down,
put his penis in her mouth, and ejaculated. A. O. eventually told her older sister, who

then told their mother about Sturgis’ acts. 

The trial court also allowed evidence of two prior acts under both OCGA § 24-

4-404 (b) and OCGA § 24-4-414. For the first prior act, the State presented the

testimony of A. W., who was 31 years old at the time of trial. She testified that when

she was eight or nine years old, she attended a summer camp where Sturgis was a

camp counselor or volunteer and A. W.’s mother was the camp director. A. W. also

knew Sturgis by the nickname “Fat Daddy.” A. W. explained that while in the

swimming pool during a camp field trip, Sturgis pulled her bathing suit aside and put

his finger inside her vagina several times. And, while riding in a van back to camp

with Sturgis after swimming, Sturgis put his hand under A. W.’s towel and fondled

her breast area. Sturgis told her not to tell her mother. But as soon as they returned

to the camp, A. W. told her mother, who “started fighting” Sturgis. A police officer

broke up the fight. Years later, in the fall of 2013, a childhood friend told A.W. that

“Fat Daddy got locked up for molesting his girlfriend’s daughter.” A. W. asked her

mother if she recalled whether she had reported Sturgisto the police after he molested

A. W. at summer camp. When A. W.’s mother responded that “she didn’t think she

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did, she didn’t know if they had taken it in writing,” A. W. contacted the police and

reported the incident. 

The State also presented the testimony of A. O.’ssister B. S., who was 23 years

old at the time of trial.

1 B. S. testified that when she was 12 or 13 years old, Sturgis

followed her and touched her buttocks over her clothes while they were inside a

convenience store. B. S. testified further that on another occasion, Sturgis climbed

into her mother’s bed where B. S. was sleeping, touched her buttocks, placed his

tongue inside her mouth, and pulled her on top of him. 

A jury found Sturgis guilty of child molestation for “sucking on” A. O.’s

breasts, and guilty of aggravated child molestation for forcing her to place her mouth

on his penis. Following the denial of Sturgis’ motion for new trial, this appeal

followed.

Sturgis arguesthat the trial court erred in admitting the testimony of A. W. and

B. S. Although he asserts that this evidence was inadmissible under OCGA § 24-4-

404 (b) (character evidence), the provisions of OCGA §§ 24-4-413 (evidence of

similar transaction crimes in sexual assault cases) and 24-4-414 (evidence of similar

transaction crimes in child molestation cases), where applicable, supercede the

1

 The trial occurred in 2014.

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provisions of OCGA § 24-4-404 (b). McAllister v. State, 351 Ga. App. 76, 80 (1) (830

SE2d 443) (2019). Relevant here, OCGA § 24-4-414 (a) provides: “In a criminal

proceeding in which the accused is accused of an offense of child molestation,

evidence of the accused’s commission of another offense of child molestation shall

be admissible and may be considered for its bearing on any matter to which it is

relevant.”

OCGA § 24-4-414 creates “a ‘rule of inclusion,’ thus providing a strong

presumption in favor of admissibility by explaining that such evidence ‘shall be

admissible.’” McAllister, supra (citations omitted; emphasis in original). “[A]nd the

State can seek to admit evidence under this provision for any relevant purpose,

including propensity.” Dixon v. State, 350 Ga. App. 211, 213 (1) (828 SE2d 427)

(2019) (citations and punctuation omitted). However, evidence that is admissible

under this rule may still be excluded under OCGA § 24-4-403, “if its probative value

issubstantially 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.” See Dixon, supra (citations and punctuation

omitted). We will only overturn a trial court’s decision to admit other acts evidence

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where there is a clear abuse of discretion. Holzheuser v. State, 351 Ga. App. 286, 296

(2) (828 SE2d 664) (2019).

Sturgis argues that the prior act evidence was “very remote [in time] from the

charged offenses” and the “acts were dissimilar, with no signature mode or style of

commission, much less specific points of commonality.” However, Sturgis’ acts of

inappropriate sexual contact with minor girls he knew and had spent time with, one

of whom was A. O.’s sister, were similar enough to the incidents involving A. O. to

“aid[ ]the jury in determining whether [Sturgis] committed” the charged crimes. Boyd

v. State, 351 Ga. App. 469, 473 (3) (829 SE2d 163) (2019) (citations and punctuation

omitted). Although the acts against A. O. were not completely identical to the prior

acts,

this Court previously recognized in a case involving the application of

our former Evidence Code that the sexual abuse of young children,

regardless of . . . the nomenclature or type of acts or other conduct

perpetrated upon them, is of sufficient similarity to make the evidence

admissible. This is because sex crimes against children require a unique

bent of mind.

Dixon v. State, 341 Ga. App. 255, 262 (1) (b) (800 SE2d 11) (2017) (citation and

punctuation omitted).

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Further, the remoteness of the prior acts does not require that the evidence be

excluded. 

Exclusion of proof of other acts that are too remote in time caters

principally to the dual concerns for relevance and reliability. The

evaluation of the proffered evidence in light of these concerns must be

made on a case-by-case basis to determine whether the significance of

the prior acts has become too attenuated and whether the memories of

the witnesses has likely become too frail. Neither Rule 403 nor any

analogous Rule provides any bright-line rule as to how old is too old.

Wilson v. State, ___ Ga. App. ___, slip op. at 10-11 (1) (b) (Case No. A19A2174,

decided March 4, 2020) (citation and punctuation omitted). There is no legitimate

concern here with relevancy or reliability. Sturgis’ prior acts against A. W. and B. S.

were relevant and probative regarding his intent and propensity to commit the

charged crimes against A. O. Further, there was no showing either on direct or crossexamination that the witnesses’ memories were at issue. Thus, the fact that the acts

against A. W. and B. S. were committed about 22 years and 10 years before the acts

against A. O. did not demand a different ruling. See id. (prior acts occurred about 30

years earlier); Boyd, supra, 351 Ga. App. at 473 (3) (prior acts occured between 16

and 22 years earlier); Harris v. State, 340 Ga. App. 865, 868 (1) (b) (798 SE2d 498)

(2017) (prior acts occurred about 44 years earlier).

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Under the circumstances presented here, we cannot say that the trial court

abused its discretion in admitting the two prior acts pursuant to OCGA § 24-4-414,

“especially given the strong presumption in favor of admissibility[.]” Boyd, supra,

351 Ga. App. at 474 (3.) 

Judgment affirmed. Miller, P. J., and Coomer, J., concur.

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