Thomas v. State

The trial court did not err in failing to conduct an "explicit" balancing test before concluding that the probative value of the evidence of prior difficulties between the 11-year-old child molestation victim and the defendant outweighed its prejudicial effect.

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Following a jury trial, Larry Elden Thomas was convicted of two counts of child molestation OCGA § 16-6-4 and one count of enticing a child for indecent purposes OCGA § 16-6-5.1 He now appeals from the denial of his motion for new trial, asserting that current Georgia law regarding the admission of evidence of prior difficulties2 between a defendant and a victim violates a defendant’s constitutional rights to a fair trial and due process. Thomas also claims that, even if Georgia law regarding the admission of prior difficulties is valid, the trial court nevertheless erred in admitting that evidence. He further contends that the court below erred by allowing testimony that improperly bolstered the victim’s credibility and improperly commented on the ultimate issue of his guilt. Finally, Thomas asserts that he received ineffective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the verdict,3 the record shows that at the time of the two incidents in question Thomas was living with the victim’s older sister, in the same family home where the eleven-year old female victim resided.4 The victim testified that on one occasion, while Thomas and she were playing on separate computers in the same room, Thomas came and stood beside her and, while holding his penis in his hand, rubbed it on her arm. On another occasion, the victim’s sister told her that Thomas wanted the victim to go to the basement of the home, because he had something he wanted to show her on the computer. When the victim arrived in the basement, Thomas told her to close her eyes; when Thomas instructed her to open her eyes, the victim saw Thomas standing with his penis exposed and the computer displaying pornographic images. Thomas then tried to get the victim to touch his penis, but she instead screamed for her sister and attempted to flee the room. According to the victim, Thomas grabbed her wrist and shut the door to the room, in an effort to prevent her from leaving.

Thomas v. State

The trial court did not err in failing to conduct an "explicit" balancing test before concluding that the probative value of the evidence of prior difficulties between the 11-year-old child molestation victim and the defendant outweighed its prejudicial effect.

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