Perry v. State, 588 S.E.2d 838 (Ga. Ct. App. 2003). · Go Syfert
Perry v. State, 588 S.E.2d 838 (Ga. Ct. App. 2003). Cases Citing This Book View Copy Cite
25 citation events (25 in the last 25 years) across 2 distinct courts.
Strongest positive: Gresham v. State (gactapp, 2010-04-13)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 6 distinct citers. How cited ↗
cited Cited as authority (rule) Gresham v. State
Ga. Ct. App. · 2010 · confidence medium
Perry, supra, 263 Ga.App. at 670(2), 588 S.E.2d 838 .
cited Cited as authority (rule) Gresham v. State
Ga. Ct. App. · 2010 · confidence medium
Perry, supra, 263 Ga. App. at 670 (2).
examined Cited as authority (rule) Payne v. State (6×) also: Cited "see"
Ga. · 2009 · confidence medium
See Maynard v. State, 282 Ga.App. 598, 604 (3), 639 S.E.2d 389 (2006) (reversing conviction because "no logical connection existed between the [prior] acts ... and the crimes for which [defendant] was on trial"); Perry v. State, 263 Ga.App. 670, 671 (2), 588 S.E.2d 838 (2003) (reversing conviction for improper admission of prior transaction evidence, stating, "a nonviolent sexual encounter with a minor [does not] show[ ] a predilection to commit forcible rape against an adult"); Bloodworth v. State, 173 Ga.App. 688 (1), 327 S.E.2d 756 (1985) (inappropriate sexual overtures to adult not admissi…
cited Cited as authority (rule) Mullis v. State
Ga. Ct. App. · 2004 · confidence medium
Perry v. State, 263 Ga. App. 670, 671 (2) ( 588 SE2d 838 ) (2003).
discussed Cited "see, e.g." Kirkland v. the State (2×)
Ga. Ct. App. · 2015 · signal: compare · confidence medium
Compare Perry v. State, 263 Ga. App. 670, 671 (2) ( 588 SE2d 838 ) (2003) (finding insufficient similarity between the defendant’s “violent rape of an adult” and his “nonviolent sexual encounter with a minor”). 2.
discussed Cited "see, e.g." Murray v. State (2×)
Ga. Ct. App. · 2008 · signal: see also · confidence low
See also Mooney v. State, 266 Ga. App. 587, 591 (2) ( 597 SE2d 589 ) (2004). 19 See Kingsley v. State, 268 Ga. App. 729 (1) ( 603 SE2d 78 ) (2004). 20 263 Ga. App. 670 ( 588 SE2d 838 ) (2003). 21 Id. at 671 (2). 22 (Punctuation omitted.) Kingsley, supra at 730 (1), citing Barrett v. State, 253 Ga. App. 357, 358 (1) ( 559 SE2d 108 ) (2002). 23 (Footnote omitted.) Sands v. State, 291 Ga. App. 639, 642 ( 662 SE2d 374 ) (2008). 24 See Smith v. State, 263 Ga. App. 76, 81 (3) ( 587 SE2d 226 ) (2003). 25 (Citations and punctuation omitted.) Loyless v. State, 210 Ga. App. 693, 695 (3) ( 436 SE2d 814 )…
Retrieving the full opinion text from the archive…
Perry
v.
the State
A03A1606.
Court of Appeals of Georgia.
Oct 17, 2003.
588 S.E.2d 838
2003 Ga. App. LEXIS 1287
Robert R. McLendon IV, for appellant., J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.
Ruffin, Smith, Miller.
Cited by 9 opinions  |  Published
Pinpoint authority: bottom 51%
Ruffin, Presiding Judge.

Isaiah Perry was indicted for rape and aggravated assault with intent to rape. Following a trial, the jury found Perry guilty of aggravated assault and sexual battery, a lesser included offense of rape. In his sole enumeration of error on appeal, Perry contends that the trial court erred in admitting evidence of a similar transaction. We agree and thus reverse.

1. As a threshold matter, we must address the State’s argument that Perry’s failure to include a transcript from the similar transaction hearing bars our review of his allegation of error. As noted by the State, the burden is on the complaining party to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review. [1] If a party fails to include a transcript that is necessary to resolve the issue on appeal, we presume the trial court acted correctly and affirm. [2] Here, however, the hearing transcript is not necessary.

In Perry’s sole allegation of error, he argues that the State failed to prove that the prior act was sufficiently similar to warrant its admission at trial. And the State is required to prove at trial that there is sufficient similarity and/or connection between the prior act and the crime charged so “that proof that the accused committed the former tends to prove that the accused also committed the latter.” [3] As the error is alleged to have occurred during trial, the hearing transcript is not necessary to resolve the issue on appeal.

2. At trial, the State tendered evidence that, on October 4, 2001, the victim was walking down the street when she was accosted by Perry and Jerry Parris. Perry put a gun to the victim’s head and ordered her to pull down her pants and get on her knees. The victim testified that both Perry and Parris raped her. Afterward, the victim fled to a friend’s house, and the police were summoned. That night, the victim was taken to the hospital where a rape examination was performed. A subsequent DNA test on the sperm sample obtained during the examination matched Parris’ DNA. [4]

In support of its case against Perry, the State presented evidence of a similar transaction to demonstrate his “bent of mind and lustful disposition.” Juan Cruz, a military investigator, testified that he interviewed Perry in January 1991 regarding his alleged involve[*671] ment in the rape of a minor. At the time of the incident, Perry was 18. Cruz read from Perry’s statement in which he admitted having intercourse with a 13-year-old girl. According to the statement, Perry did not threaten the girl, and he terminated the encounter when the girl told him to leave. Perry did, however, plead guilty to child molestation. On appeal, Perry contends that the trial court erred in admitting this evidence. We agree.

As this Court recently reiterated, we review a trial court’s ruling as to the admissibility of similar transaction evidence under an abuse of discretion standard. [5] And

in crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses. [6]

Notwithstanding the liberal admission policy, in order to be admitted, similar transaction evidence should demonstrate a defendant’s bent of mind or lustful disposition toward the sexual activity for which he is on trial. [7] Such evidence cannot be admitted simply to show “that the defendant likely committed the crime because he is a person of bad character.” [8]

Under the facts of this case, we fail to see how evidence regarding Perry’s nonforcihle sex with a minor can be equated with his alleged violent rape of an adult. [9] In a recent case, this Court noted that the “rape of an adult woman would not show that [a defendant] had a lustful disposition toward children.” [10] Conversely, we do not believe that a nonviolent sexual encounter with a minor shows a predilection to commit forcible rape against an adult.

The State’s argument does nothing to dissuade us. The State argues that the prior incident is similar because it too involved non-consensual sex. Specifically, the State points to the fact that the victim in the prior act, a minor, was incapable of consenting to the act.[*672] In Georgia, however, the offense of rape requires more than noncon-sensual sex; it requires the element of force. [11] As this crucial element was absent in the similar transaction, the trial court abused its discretion in admitting evidence of it. [12]

Decided October 17, 2003. Robert R. McLendon IV, for appellant. J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

Furthermore, we are unable to conclude that the error was harmless. [13] The defense presented evidence that the interaction was consensual. And, although Perry was charged with rape, the jury acquitted him of this offense, finding him guilty of the lesser offense of sexual battery. Under these circumstances, we cannot characterize the evidence of Perry’s guilt as overwhelming. [14] It follows that Perry’s conviction must be reversed.

Judgment reversed.

Smith, C. J., and Miller, J., concur.
1

See Wright v. State, 215 Ga. App. 569, 570 (2) (452 SE2d 118) (1994).

2

See id.

3

Williams v. State, 261 Ga. 640, 642 (2) (c) (409 SE2d 649) (1991).

4

Parris was found guilty of rape, and this Court affirmed his conviction. See Parris v. State, 258 Ga. App. 49 (572 SE2d 728) (2002).

5

See Hostetler v. State, 261 Ga. App. 237, 238 (1) (582 SE2d 197) (2003).

7

See Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999) (defendant’s possession of sexually explicit material inadmissible unless evidence shows lustful disposition or bent of mind toward crime charged).

8

Parrish v. State, 237 Ga. App. 274, 278-279 (3) (514 SE2d 458) (1999); see Guyton v. State, 272 Ga. 529, 531 (3) (531 SE2d 94) (2000).

9

See Bloodworth v. State, 173 Ga. App. 688, 689 (1) (327 SE2d 756) (1985) (“Making a ‘pass’ at an adult woman cannot be equated to molesting a six-year-old child, nor is it of sufficient similarity to necessarily show a lustful disposition on the part of appellant.”).

10

Smith v. State, 249 Ga. App. 39, 41 (1) (547 SE2d 598) (2001).

11

See OCGA § 16-6-1 (a) (1).

12

The State contends that it presented evidence of force via Cruz’s testimony that “the victim stated that she struggled and tried to push [Perry] off.” As noted by Perry, however, this testimony is hearsay, which lacks probative value even if a party fails to object to the admission of such evidence. See Cordis v. State, 236 Ga. App. 629, 631 (3) (513 SE2d 45) (1999).

13

See Bloodworth, supra (erroneous admission of similar transaction evidence subject to harmless error doctrine).

14

Cf. id. (ample admissible evidence demonstrated defendant’s sexual proclivities).