☢ test - Í

an adult woman at gunpoint. Prior acts: “intercourse with a 13–year–old middle-school student,” apparently not involving force or violence, and molestation of “the 13–year–old sister of one of his friends by touching the girl’s vaginal area with his hand and later, during a sleep-over party, by touching her breasts and buttocks with a knife.” Both prior acts occurred 9-10 years earlier. While finding “that the other acts evidence ‘is relevant to show that [Dowdell] is a sexual deviant,’” the trial court concluded “that the prejudice substantially outweighs the probative value.” “The court concluded that the other acts were really only probative of a trait of Dowdell’s character, his ‘lustful disposition.’ On the other hand, the court believed that the other acts ‘evidence would be extremely prejudicial to [Dowdell] ... because jurors may be tempted to convict based on their belief of what the evidence says about the defendant’s character, rather than the evidence in the case being tried.’” Held, the trial court applied the correct standard in excluding the evidence, although it stated in its order that it “must” (not “may”) exclude the evidence. “When read in context, the trial court, by using the word “must” in its order, was simply recognizing that, although its discretion to exclude evidence under OCGA § 24–4–403 was narrowly circumscribed, its broad discretion to admit other acts evidence was not absolute. … The record shows that the trial court made a common sense assessment of the circumstances surrounding the use of the other acts evidence, including prosecutorial need, similarity between the other acts and the charged offense, temporal remoteness, the likelihood of jury confusion by ‘a trial involving three separate incidents[,]’ and the unfair prejudice that would flow from the introduction of prior crimes involving allegations of child molestation. The State has not shown that the court applied the wrong legal standard, misunderstood the nature or scope of its discretion, or clearly abused that discretion in excluding the evidence in this case.” Peterson concurs in judgment only, arguing that evidence of propensity to commit sexual offenses is admissible under § 24-4-413, but noting that the trial court’s order could be read to exclude the evidence based on “the risk that jurors, ‘uncertain of guilt, may convict [the] defendant because they think [he] is a bad person generally deserving of punishment.’ [Cit.]” Dority v. State, 335 Ga.App. 83, 780 S.E.2d 129 (November 20, 2015). Aggravated child molestation and related convictions affirmed. Under 2013 Evidence Code, no error in admitting similar transaction evidence of prior molestation of defendant’s daughter. OCGA § 24-4-413(a) (in sexual assault cases, “evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant”) and OCGA § 24-4-414(a) (in child molestation cases, “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”) control over the general statute regarding other acts, OCGA § 24-4-404(b), citing United States v. Brimm, 608 F. Appx. 795, 798(I)(B) (11 th Cir., 2015) (‘[FRCP] Rules 413 and 414 permit the introduction of propensity evidence and thus contain exceptions to Rule 404(b)’s general ban on propensity evidence in “sexual assault” and “child molestation” cases.’) (citations omitted).” Eubanks v. State, 332 Ga.App. 568, 774 S.E.2d 146 (June 23, 2015). Child molestation conviction affirmed. 1. Under 2013 Evidence Code, evidence of prior child molestation was properly admitted under OCGA § 24-4-414(a), which “provides that ‘[i]n 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.’” Evidence here was relevant to establish intent, and “to show that Eubanks had a motive of seeking nonconsensual sexual contact with a minor.” 2. Trial court properly “instructed the jury that it could consider the evidence of his prior molestation to show a ‘disposition to commit the act of child molestation.’ … Courts interpreting [the language of OCGA § 24-4-414(a)] have concluded that, in this specific context, showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct: ‘evidence that a defendant engaged in child molestation in the past is admissible to prove that the defendant has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.’ United States v. Levinson, 504 Fed. Appx. 824, 827(II)(a) (11 th Cir., 2013), cert. denied by Levinson v. United States, 134 S.Ct. 129 (187 L.Ed.2d 38) (2013). This is conceptually consistent with Georgia's prior case law regarding trials for child molestation under the old evidence rules, which extended the admission of similar transaction evidence most liberally in cases involving sexual offenses ‘because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person's consent. [This was particularly true in cases involving] the sexual molestation of young children or teenagers, regardless of the type of act....’ (Citations and punctuation omitted.) Dean v. State, 321 Ga.App. 731, 734(1)(b) (742 S.E.2d 758) (2013). See also Chapman v. State, 318 Ga.App. 514, 521(3) (733 S.E.2d 848) (2012) (‘It is well settled, particularly in cases involving sexual offenses, that similar transactions may be admitted for the purpose of establishing bent of mind. Evidence of an earlier assault on a woman is material to the issue of consent or lack thereof and has a direct bearing on a defendant's bent of mind.’) (punctuation omitted).”