¶1In the Supreme Court of Georgia
¶2 Decided: June 21, 2021
¶3 S20G1295. WILSON v. THE STATE.
¶4 ELLINGTON, Justice.
¶5 In 2015, a Catoosa County jury found Timothy John Wilson,
¶6Jr., guilty of child molestation, statutory rape, and two counts of
¶7incest involving his 13-year-old stepdaughter, B. O., and the Court
¶8of Appeals affirmed the judgment of conviction. See Wilson v. State,
¶9354 Ga. App. 64 (840 SE2d 601) (2020). Wilson petitioned this Court
¶10for a writ of certiorari, which we granted to consider “[w]hether the
¶11trial court erred in concluding that evidence of alleged prior offenses
¶12of child molestation was admissible under OCGA § 24-4-414.” 1 As
¶13 1OCGA § 24-4-414 provides in full: (a) 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. explained below, the Court of Appeals’ analysis of the trial court’s
¶14decision to admit Wilson’s prior offenses of child molestation under
¶15OCGA § 24-4-414 (“Rule 414”) was flawed; however, its judgment
¶16was correct. Therefore, we affirm the judgment of the Court of
¶17Appeals.
¶18 In 2009, Wilson married B. O.’s mother and, shortly thereafter,
¶19the family moved to Catoosa County. In October 2014, when B. O.
¶20 (b) In a proceeding in which the state intends to offer evidence under this Code section, the prosecuting attorney shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that the prosecuting attorney expects to offer, at least ten days in advance of trial, unless the time is shortened or lengthened or pretrial notice is excused by the judge upon good cause shown. (c) This Code section shall not be the exclusive means to admit or consider evidence described under this Code section. (d) As used in this Code section, the term “offense of child molestation” means any conduct or attempt or conspiracy to engage in: (1) Conduct that would be a violation of Code Section 16-6-4, 16-6-5, 16-12-100, 16-12-100.2, or 16-12-100.3; (2) Any crime that involves contact between any part of the accused’s body or an object and the genitals or anus of a child; (3) Any crime that involves contact between the genitals or anus of the accused and any part of the body of a child; or (4) Any crime that involves deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child. 2 was 13 years old, Wilson began to molest her. B. O. testified that
¶21Wilson made her watch pornographic videos on his phone while he
¶22rubbed her back in a sexually suggestive manner that made her
¶23uncomfortable. B. O. testified that, between October and Christmas
¶24Eve 2014, Wilson pursued her sexually. He touched her buttocks and
¶25genitals with his hand both over and under her clothing; he then
¶26engaged her in acts of oral sodomy; he penetrated her vagina with a
¶27sex toy; and he had sexual intercourse with her.
¶28 B. O. testified that these acts occurred in the home while her
¶29mother was at work and Wilson was supposed to be supervising her.
¶30Wilson told B. O. that he had to have sex with her because her
¶31mother was too fat. B. O. was afraid of Wilson, but she eventually
¶32made an outcry to her mother after Wilson told her he was going to
¶33have sex with one of B. O.’s underage friends.
¶34 When B. O.’s mother reported Wilson’s conduct to the police,
¶35Wilson fled. Wilson argued at trial that B. O. had fabricated her
¶36claim of molestation to retaliate against him because he had
¶37disciplined her harshly, including prohibiting her from attending a
¶38 3 planned church retreat. As discussed in more detail below, the State
¶39also presented evidence that Wilson had previously molested his
¶40younger half-sister, P. W.2
¶41 1. Wilson contends that the evidence of his alleged prior
¶42offenses of child molestation involving P. W. did not satisfy the
¶43requirements for admission pursuant to Rule 414. Specifically, he
¶44argues that, because he was between the ages of 11 and 13 when the
¶45alleged prior offenses occurred, either he lacked the capacity to
¶46commit a crime under OCGA § 16-3-1, 3 or the State was required to
¶47prove by a preponderance of the evidence that he had the capacity
¶48to form the criminal intent necessary to commit the prior offenses,
¶49but the State failed to make that showing. He also argues that the
¶50evidence of his prior offenses of child molestation failed to satisfy the
¶51relevancy requirement of Rule 414.
¶52 2 Because the sufficiency of the evidence supporting Wilson’s convictions is not at issue in this appeal, we are reviewing only that evidence pertinent to our consideration of whether the trial court abused its discretion in admitting the prior offenses of child molestation pursuant to OCGA §§ 24-4-414 and -403. 3 OCGA § 16-3-1 provides: “A person shall not be considered or found
¶53guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.” 4 (a) The trial court’s pretrial evidentiary ruling. The record
¶54shows that the State, pursuant to Rule 414 (b), gave the required
¶55pretrial notice of intent to present evidence of Wilson’s prior offenses
¶56of child molestation. In its notice, the State asserted that, in 1986,
¶57when Wilson lived in Wyoming County, New York, he engaged in
¶58specific sexual acts involving P. W., who was then under the age of
¶59ten.
¶60 At a pretrial hearing, the prosecutor and defense counsel
¶61agreed to make a proffer as to what the evidence would show at trial.
¶62The prosecutor stated that P. W. and her mother would testify about
¶63the following: In 1986, Wilson and P. W. lived together in the same
¶64home. P. W. was about 5 or 6 years old when Wilson, her older half-
¶65brother, began to molest her. Over the course of a year, he engaged
¶66P. W. in acts of oral sodomy and sexual intercourse. The acts took
¶67place when P. W. and Wilson were unsupervised. When P. W. told
¶68her mother about the molestation, Wilson was removed from the
¶69home and placed in a juvenile facility. Wilson’s counsel argued that
¶70Wilson was a child himself when the prior acts allegedly occurred.
¶71 5 He stated that Wilson was born on July 29, 1973, and that he was
¶72between 11 and 13 years old when the prior offenses allegedly
¶73occurred. 4 Defense counsel objected to the admission of the evidence
¶74under OCGA § 24-4-403 (“Rule 403”),5 arguing that Wilson’s youth
¶75at the time of the prior offenses, along with other factors, diminished
¶76the probative value of the evidence such that it was substantially
¶77outweighed by the danger of unfair prejudice. Counsel did not argue,
¶78however, that proof of Wilson’s legal capacity was required for
¶79admission under Rule 414, nor did he seek a ruling on the
¶80applicability of OCGA § 16-3-1 or the common-law defense of
¶81infancy.
¶82 Following the pretrial hearing, the trial court overruled
¶83Wilson’s objection to the admission of the evidence, and entered a
¶84written order ruling that the evidence was admissible under Rules
¶85 4 The prosecutor did not dispute defense counsel’s representations concerning Wilson’s date of birth. 5 OCGA § 24-4-403 provides: “Relevant evidence may be excluded if its
¶86probative value is substantially 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.” 6 414 and 403 as evidence of Wilson’s motive and intent in the charged
¶87crimes. Before the evidence was admitted at trial, and again during
¶88the final charge, the trial court instructed the jury on the limited
¶89evidentiary purposes for which the jury could consider the prior
¶90offenses of child molestation. Wilson did not object to these
¶91instructions, nor did he request a jury instruction concerning the
¶92application of OCGA § 16-3-1 or the common-law infancy defense to
¶93the prior offenses of child molestation.
¶94 (b) The evidence of Wilson’s prior offenses of child molestation
¶95presented at trial. The State presented evidence of the prior offenses
¶96of molestation through the testimony of P. W. and her mother. P. W.
¶97testified that Wilson molested her over the course of a year. She said
¶98that he molested her by touching her vagina with his hand. He also
¶99performed oral sex on her and had sexual intercourse with her when
¶100her parents were asleep, away from the house, or when he was
¶101supposed to be babysitting her. The molestation occasionally took
¶102place in the basement, and P. W. recalled an incident where Wilson
¶103left her alone and naked on a blanket while he, fully clothed, ran to
¶104 7 catch the school bus when it arrived.
¶105 P. W.’s mother testified that P. W. was six or seven years old
¶106when the molestation occurred, recalling that the events transpired
¶107sometime after the family had moved to the Buffalo, New York area
¶108in 1985, when P. W. was in first grade. Both P. W. and her mother
¶109testified that they believed Wilson was 15 years old when the
¶110molestation occurred. P. W. testified that she believed Wilson was
¶111“significantly older” than she was, “by at least 5 years.” Neither the
¶112State nor Wilson presented evidence at trial of Wilson’s date of birth.
¶113 P. W. also testified that, shortly after her mother had warned
¶114her about people who might touch her inappropriately, using the
¶115phrases “good touch” and “bad touch,” she asked Wilson whether
¶116what he was doing to her was “bad touch.” He replied that “bad touch
¶117did not include brothers.” When P. W. began telling her mother what
¶118Wilson had been doing, he interrupted and “tried to shut [P. W.] up.”
¶119P. W. and her mother both testified that, after the police were
¶120informed of the molestation, Wilson was removed from the home and
¶121 8 placed in a series of secure juvenile facilities. 6
¶122 (c) Wilson’s prior acts of child molestation constitute a crime, as
¶123required for admission under Rule 414. Wilson contends that the
¶124trial court should have excluded the evidence of his prior acts of child
¶125molestation because that evidence did not meet the requirements for
¶126admission under Rule 414. Specifically, he argues that the State
¶127failed to prove by a preponderance of the evidence that he was
¶128capable of forming the criminal intent required to commit an
¶129“offense of child molestation” because he was under the age of 13,
¶130which he asserts is the age of criminal responsibility in Georgia,
¶131when the prior acts of molestation allegedly occurred. See OCGA §
¶13216-13-1. As recounted above, Wilson did not make this argument in
¶133the trial court, nor did he object on this ground when the evidence
¶134was admitted during trial. Thus, Wilson failed to preserve this claim
¶135of error for ordinary appellate review, and we therefore review the
¶136 6 The prosecutor in this case did not introduce any evidence from the State of New York documenting that Wilson had been convicted or adjudicated delinquent of any act of child molestation or confined to any juvenile facility.
¶137 9 claim only for plain error. See OCGA § 24-1-103 (a), (d); Gates v.
¶138State, 298 Ga. 324, 327 (3) (781 SE2d 772) (2016). 7
¶139 To establish plain error, Wilson must show the following:
¶140 First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
¶141(Citations and punctuation omitted.) Gates, 298 Ga. at 327 (3). See
¶142also OCGA § 24-1-103 (d) (“Nothing in this Code section shall
¶143preclude a court from taking notice of plain errors affecting
¶144substantial rights although such errors were not brought to the
¶145attention of the court.”). As explained below, given current law
¶146 7 Though Wilson made this argument in his brief in the Court of Appeals, the Court of Appeals did not address the argument or consider what role OCGA § 16-3-1 or the common-law infancy defense played in the admissibility analysis under Rule 414. 10 supporting the trial court’s ruling, we cannot say that the ruling
¶147amounted to “clear and obvious error beyond reasonable dispute.”
¶148(Citation and punctuation omitted.) Westbrook v. State, 308 Ga. 92,
¶149101 (5) (a) (839 SE2d 620) (2020). See also Simmons v. State, 299
¶150Ga. 370, 374 (2) (788 SE2d 494) (2016) (“An error cannot be plain
¶151where there is no controlling authority on point.” (citation and
¶152punctuation omitted)). Moreover, “an error is not plain under
¶153current law if a defendant’s theory requires the extension of
¶154precedent.” (Citation omitted.) Dunbar v. State, 309 Ga. 252, 258 (3)
¶155(845 SE2d 607) (2020).
¶156 Rule 414 requires an “offense of child molestation” to be a
¶157crime. Rule 414 (a) provides: “In a criminal proceeding in which the
¶158accused is accused of an offense of child molestation, evidence of the
¶159accused’s commission of another offense of child molestation shall be
¶160admissible and may be considered for its bearing on any matter to
¶161which it is relevant.” As Wilson correctly points out, an “offense of
¶162child molestation” is defined as “any crime” involving specified
¶163sexual acts or a “violation” of certain Georgia criminal statutes. See
¶164 11 OCGA § 24-4-414 (d). See also King v. State, 346 Ga. App. 362, 364
¶165(1) (816 SE2d 390) (2018) (The defendant’s prior offenses of child
¶166molestation were erroneously admitted because “the State failed to
¶167show that the [prior-offenses] victim was a minor under Georgia law
¶168or that [the defendant] engaged in sexual intercourse with her
¶169without her consent. As a result, the State failed to prove that [the
¶170defendant’s] prior conviction constituted evidence of his ‘commission
¶171of another offense’ under the plain meaning of either OCGA §§ 24-4-
¶172413[8] or 24-4-414.” (footnote omitted; emphasis in original)).
¶173 Given the plain language of Rule 414, the trial court must find,
¶174prior to admitting the proffered evidence, that the conduct alleged,
¶175if proven, would constitute a violation of one of the listed statutes or
¶176the commission of one of crimes specified in Rule 414 (d). This is a
¶177question of law for the trial court. See United States v. Fetrow, 76
¶178M.J. 181, 185 (C.A.A.F. 2017) (“The question of whether the
¶179 8 OCGA § 24-4-413 (a) provides: “In a criminal proceeding in which the accused is accused of an offense of sexual assault, 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.”
¶180 12 admitted testimony constitutes evidence that the accused
¶181committed another offense of child molestation under [the military
¶182corollary to Rule 414] is one of law, reviewed de novo.”). 9
¶183 Wilson contends that OCGA § 16-3-1 provides that a person
¶184under the age of 13 categorically lacks the capacity to commit a
¶185crime. Wilson argues that, because he was under the age of 13 when
¶186most of the alleged prior acts of child molestation occurred, most of
¶187the acts did not constitute crimes; therefore, they did not satisfy this
¶188 9 In interpreting Rule 414, we bear in mind that, when our General Assembly enacted our current Evidence Code, of which Rule 414 is a part, many provisions were borrowed from the Federal Rules of Evidence. When Georgia courts consider the meaning of these borrowed provisions, they look to decisions of the federal appellate courts construing and applying the federal rules, especially the decisions of the Eleventh Circuit. See Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015). We note that Military Rule of Evidence 414 (a), like Federal Rule of Evidence 414 (a), provides for the admission of prior offenses evidence in child molestation cases. The military rule provides that, “[i]n a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.” Similarly, the federal rule provides that, “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.” Georgia’s Rule 414 provides, as stated above, that such evidence “shall” be admissible and may be considered for its bearing on any matter to which it is relevant.
¶189 13 requirement for admission under Rule 414.10 To the extent that
¶190Wilson was 13 years old or older when the prior offenses occurred,
¶191this argument fails. To the extent that Wilson was under the age of
¶19213 when the prior acts occurred, this argument also fails because
¶193this Court has held that “OCGA § 16-3-1 does not provide that a
¶194person under 13 years of age is incapable of performing an act which
¶195is designated a crime under the laws of Georgia[.]” (Citation and
¶196punctuation omitted.) Adams v. State, 288 Ga. 695, 696 (1) (707
¶197SE2d 359) (2011).
¶198 Although OCGA § 16-3-1 provides that “[a] person shall not be
¶199considered or found guilty of a crime unless he has attained the age
¶200of 13 years at the time of the act, omission, or negligence
¶201constituting the crime[,]” (emphasis added), in Adams, a majority of
¶202this Court, relying on “Committee Notes to § 26-701[11] of [Georgia’s]
¶2031968 Criminal Code,” explained that “the General Assembly
¶204 10 Wilson argues that he would have been 12 years old for almost eight months of 1986, when the molestation of P. W. was alleged to have occurred in the State’s notice, and 13 years old for the last four months of 1986. 11 Code Ann. § 26-701 was the predecessor to OCGA § 16-3-1 and was
¶205enacted in 1968. See Ga. L. 1968, p. 1249, § 1. 14 eliminated the conclusive presumption of incapacity to commit
¶206crime below the age of 10 years and lowered the rebuttable
¶207presumption of capacity to commit crime from 14 years to 13 years.”
¶208(Punctuation omitted.) Adams, 288 Ga. at 696 (1). Further, citing K.
¶209M. S. v. State, 129 Ga. App. 683, 685 (200 SE2d 916) (1973), and
¶210other Court of Appeals cases that also relied on the Committee
¶211Notes, the majority asserted that the purpose of OCGA § 16-3-1 was
¶212to provide “a defense for [children under the age of 13] because of
¶213the social desirability of protecting those no more than 12 years of
¶214age from the consequences of criminal guilt.” Adams, 288 Ga. at 697
¶215(1). The majority concluded that OCGA § 16-3-1 does not provide
¶216that a child under the age of 13 is immune from prosecution or
¶217conclusively lacks the capacity to perform an act designated a crime
¶218under the laws of Georgia. The majority instead reasoned that the
¶219statute sets forth an affirmative defense that may be rebutted.
¶220Adams, 288 Ga. at 697 (1) (“With respect to any affirmative defense,
¶221‘unless the state’s evidence raises the issue invoking the alleged
¶222defense, the defendant must present evidence thereon to raise the
¶223 15 issue.’ OCGA § 16-1-3 (1).”).12
¶224 Some of us doubt that Adams was correctly decided, given the
¶225plain text of OCGA § 16-3-1. See Adams, 288 Ga. at 703 (Hunstein,
¶226C.J., concurring specially). 13 But this is not the case for us to
¶227reconsider Adams, because we are reviewing Wilson’s claim for plain
¶228error, and plain error cannot be based on an extension of existing
¶229precedent, much less on the overruling of existing precedent. See
¶230Dunbar, 309 Ga. at 258 (3). And under Adams’ interpretation of
¶231 12 In Adams, this Court concluded that “OCGA § 16-3-1 set forth an affirmative defense, because such a defense admits the doing of the act charged, but seeks to justify, excuse, or mitigate it.” (Citation omitted.) 288 Ga. at 697 (1). This definition of an affirmative defense is overly broad. As we have since explained, in order to raise an affirmative defense, a criminal defendant need not “admit” anything, in the sense of acknowledging that any facts alleged in the indictment or accusation are true. Rather, in asserting an affirmative defense, a defendant may accept certain facts as true for the sake of argument, and the defendant may do so for the limited purpose of raising the specific affirmative defense at issue. (Citations omitted.) McClure v. State, 306 Ga. 856, 864 (1) (834 SE2d 96) (2019). 13 Then-Chief Justice Hunstein, who was joined by now-Chief Justice
¶232Melton, observed: “OCGA § 16-3-1 by its plain language establishes that children who commit criminal offenses at the time they are under the age of 13 are categorically ineligible to be prosecuted for or convicted of those offenses.” Adams, 288 Ga. at 703 (Hunstein, C.J., concurring specially).
¶233 16 OCGA § 16-3-1, the trial court did not commit an obvious error by
¶234admitting the evidence of Wilson’s prior offenses of child
¶235molestation.
¶236 Adams did not address the meaning of “capacity to commit a
¶237crime” in the context of OCGA § 16-3-1, or explain how a trial court
¶238is to determine whether the evidence is sufficient to show that a
¶239defendant had the capacity to commit a crime in any given case.
¶240Under Georgia’s common-law infancy defense, 14 however, a
¶241defendant under the age of 13 is presumed to lack criminal
¶242 14 Georgia’s infancy defense has its origins in the common law. “The Georgia General Assembly adopted the common law of England as of May 14, 1776, as Georgia’s own law, except to the extent that Georgia’s statutory or constitutional law displaced the common law, and that adoption remains in force today. See OCGA § 1-1-10 (c) (1).” Glenn v. State, 310 Ga. 11, 17 (1) (849 SE2d 409) (2020). In 1817, the legislature first codified the law of criminal responsibility in terms of mental capacity – other parts of the Code addressed other aspects of the law of criminal responsibility – providing that “[a] person shall be considered of sound mind, who is neither an idiot, a lunatic, [n]or afflicted by insanity, or who hath arrived at the age of fourteen years, or before that age, if such person knows the distinction between good and evil.” Ga. L. 1817, First Division, p. 92, § 3. The Code also provided that “[a]n infant under age of nine years . . . shall not be found guilty of any crime or misdemeanor.” Id. at p. 92, § 4. The Code was later amended to provide that “the age of criminal responsibility was 14, or before that age if the child knew the distinction between good and evil, but never under the age of 10.” Hatch v. O’Neill, 231 Ga. 446, 447 (1) (202 SE2d 44) (1973) (citing the Penal Code of 1863, §§ 4190, 4191). 17 responsibility for his acts given his diminished capacity to
¶243appreciate the difference between right and wrong, but the State
¶244may rebut that presumption. Prior to the enactment of OCGA § 16-
¶2453-1, this Court explained the common-law infancy defense as
¶246follows:
¶247 At common law[,] infancy is usually regarded as being divided into three distinct periods as to which distinct presumption for capacity or incapacity prevails. An infant under the age of 7 (in Georgia changed by statute to 10 years) . . . is presumed to have no capacity to commit a crime, and such presumption is conclusive and unrebuttable. After 14 years of age he is presumed to be capable of committing crime, and is responsible in the same manner as an adult. Between the ages of 10 and 14 there is a presumption in favor of his incapacity to form a criminal intent. According to the uniform current of authority, the burden of removing and rebutting this presumption of incapacity to commit a crime rests upon the State, and this must be done by the strongest and clearest evidence.
¶248(Punctuation omitted.) McRae v. State, 163 Ga. 336, 337 (136 SE
¶249268) (1926) (opinion of Russell, C.J.). See also Ford v. State, 100 Ga.
¶25063, 63 (25 SE 845) (1896) (“A person between the ages of 10 and 14
¶251years cannot be lawfully convicted of a crime or misdemeanor,
¶252 18 unless it appears from the evidence that he was capax doli[15] and
¶253the burden of proving that he was so rests upon the state.” (citation
¶254omitted)). Although the Court in McRae was evenly divided over the
¶255sufficiency of a jury instruction concerning the burden of proving the
¶25611-year-old defendant’s capacity to commit a crime, the Court
¶257agreed that the State was required to rebut the presumption of
¶258incapacity by showing that the defendant, at the time the offense
¶259was committed, was capable of discerning between “right and
¶260wrong” or “good and evil.” See 163 Ga. at 339 (opinion of Russell,
¶261C.J.), 341 (opinion of Hill, J.).
¶262 In this case, we are not evaluating whether the State presented
¶263evidence of Wilson’s legal capacity sufficient to rebut an affirmative
¶264defense in a criminal prosecution. Rather, the issue is whether the
¶265trial court plainly erred in determining whether the evidence of
¶266Wilson’s capacity was sufficient to show that he was capable of
¶267committing a crime, thereby satisfying this requirement for the
¶268 15 The Latin phrase “capax doli” means “[c]apable of committing a crime or tort; esp., old enough to determine right from wrong.” Black’s Law Dictionary (11th ed. 2019). 19 admission of an offense of child molestation under Rule 414.
¶269Admission of a prior offense of child molestation under this rule does
¶270not require proof of a conviction or proof of guilt by evidence
¶271sufficient to sustain a conviction. See Dixon v. State, 341 Ga. App.
¶272255, 258-259 (1) (a) (800 SE2d 11) (2017) (Criminal charges are not
¶273required for the admission of other-acts evidence pursuant to Rules
¶274413, 414, or 415; in fact, a prior acquittal of the criminal charge will
¶275not necessarily preclude its admission as other-acts evidence due to
¶276the differing standards of proof involved.).
¶277 As we explained above, a prior offense of child molestation may
¶278be admitted under Rule 414 only if the prior act constitutes a
¶279specified crime, which is a question of law for the court. Whether the
¶280evidence shows that the defendant had the capacity to commit a
¶281crime at the time of the act in question, however, is a question of
¶282fact. No Georgia appellate court has addressed how a trial court
¶283should make this admissibility determination under Rule 414 when
¶284a question of fact exists as to the defendant’s capacity to commit a
¶285crime at the time of the prior act, what standard of proof applies,
¶286 20 and upon whom that burden of proof falls. Such preliminary
¶287questions concerning the admissibility of evidence, however, are
¶288governed by OCGA § 24-1-104 (“Rule 104”).
¶289 Rule 104 provides, in pertinent part:
¶290 (a) Preliminary questions concerning the . . . admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this Code section. In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges. Preliminary questions shall be resolved by a preponderance of the evidence standard.
¶291 (b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
¶292 In cases like this one, where the relevancy of the evidence
¶293depends on the resolution of a question of fact, “the judge considers
¶294only the evidence that the jury will hear at trial. If a reasonable jury
¶295could find that the preliminary facts are true, then the judge should
¶296admit the evidence for the jury’s consideration.” (Footnote omitted.)
¶297Paul S. Milich, GA. RULES OF EVIDENCE § 3:7 (Trial Court Rulings
¶298on Evidence) (Oct. 2020 Update). Similarly, the scheme for
¶299evaluating preliminary conditions of fact under the federal corollary 21 to Georgia’s Rule 10416 has been described as follows:
¶300 [1] The judge screens the foundational testimony for the jury. The judge accepts the proponent’s foundational testimony at face value and inquires only: If the jury chooses to believe this testimony, does it have sufficient probative value to support a permissive inference of the existence of the preliminary fact? If the answer is no, the judge sustains the objection, excluding the foundational testimony and the proffered item of evidence.
¶301 [2] If the answer is yes, the judge overrules the objection, admitting the foundational testimony and the proffered item of evidence. The jury makes the real factual determination.
¶3021 Robert P. Mosteller, et al., McCormick on Evid. § 53 (8th ed.
¶303updated Jan. 2020).
¶304 Applying Georgia’s Rule 104 to the instant case, the trial court
¶305would have had to decide, prior to admitting the evidence of Wilson’s
¶306 16 Federal Rule of Evidence 104 now provides, in pertinent part: (a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
¶307 22 alleged prior offenses of child molestation, whether the evidence was
¶308sufficient to allow a jury to find, by a preponderance of the evidence,
¶309that, at the time of the acts, Wilson knew right from wrong and,
¶310therefore, had the legal capacity to commit a crime. See OCGA § 24-
¶3111-104 (a) (“Preliminary questions shall be resolved by a
¶312preponderance of the evidence standard.”); cf. Bradshaw v. State,
¶313296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (“Rules 104 and 404 (b)
¶314of the Federal Rules of Evidence do not require, as a condition of
¶315admissibility, a preliminary finding by the trial court that the
¶316government has proved the other crime by a preponderance of the
¶317evidence. Instead, . . . other acts evidence may be admitted
¶318[pursuant to Rule 404 (b)] if the court concludes that the evidence is
¶319sufficient for the jury to find by a preponderance of the evidence that
¶320the other act was committed.” (citations omitted)). Because the State
¶321was the proponent of this evidence, the State bore the burden of
¶322producing evidence on the issue of Wilson’s capacity. If the trial
¶323court found that the State had presented evidence sufficient to allow
¶324the jury to find by a preponderance of the evidence that Wilson knew
¶325 23 right from wrong, then the court “shall admit” the evidence for the
¶326jury’s consideration “upon, or subject to, the introduction of evidence
¶327sufficient to support a finding of the fulfillment of the condition.”
¶328OCGA § 24-1-104 (b).
¶329 Thus, the trial court was not required to conclude that Wilson
¶330had the legal capacity to commit a crime before admitting the
¶331evidence; rather, the function of the trial court was to determine
¶332whether the State had presented evidence that was sufficient to
¶333allow the jury to make that finding by a preponderance of the
¶334evidence, if that evidence was presented at trial. See Strong v. State,
¶335309 Ga. 295, 301 (2) (a) (845 SE2d 653) (2020) (“[O]ther acts evidence
¶336may be admitted [under Georgia Rule 404 (b)] if the court concludes
¶337that the evidence is sufficient for the jury to find by a preponderance
¶338of the evidence that the other act was committed.” (citation
¶339omitted)); Bradshaw, 296 Ga. at 656 (3) (same); Dixon, 341 Ga. App.
¶340at 258 (1) (“[A] trial court’s decision to admit other acts evidence
¶341[pursuant to Rules 404 (b), 413 (a), and 414 (a)] will be affirmed if a
¶342jury could find by a preponderance of the evidence that the
¶343 24 defendant committed the act.” (citations and punctuation omitted)).
¶344 In this case, Wilson did not make a capacity argument and seek
¶345a ruling on it in the trial court, and the trial court did not make an
¶346explicit finding concerning the sufficiency of the evidence on the
¶347issue of his capacity. However, the evidence discussed during the
¶348pretrial proffer and admitted at trial was sufficient to allow the jury
¶349to find by a preponderance of the evidence that Wilson appreciated
¶350the difference between right and wrong when he molested P. W. The
¶351evidence shows that Wilson engaged P. W. in the prior offenses of
¶352molestation when his parents were asleep or away from home, when
¶353he was responsible for supervising P. W., and when he was alone
¶354with P. W. in a secluded area of the house, like the basement. Wilson
¶355told P. W. that “bad touch” did not apply to him. He also tried to
¶356prevent P. W. from telling their mother what he had been doing.
¶357Wilson’s efforts to conceal his acts of molestation and to prevent P.
¶358W. from disclosing them to their mother supported an inference that
¶359Wilson knew the difference between right and wrong, and was aware
¶360of and appreciated the wrongfulness of his conduct. Cf. Lee v. State,
¶361 25 306 Ga. App. 144, 146 (2) (701 SE2d 582) (2010) (Although the
¶362defendant was 12 years old at the time of the prior acts, his actions,
¶363including bullying his sister into performing oral sex on him and
¶364then bragging about his sexual prowess, were not the “faultless acts
¶365of an innocent child.” (citations and punctuation omitted)); Gilham
¶366v. State, 232 Ga. App. 237, 239 (1) (501 SE2d 586) (1998) (Although
¶367the defendant was 12 or 13 at time he committed a sexual battery
¶368on his sister, his knowledge of the difference between a “good touch”
¶369and a “bad touch” and his admitted embarrassment about his
¶370conduct showed an awareness of its wrongfulness.). 17
¶371 17 We note that, in Lee, Gilham, and other “similar transaction” cases decided before the enactment of our current Evidence Code, courts did not evaluate the defendant’s capacity to commit the prior crime as a requirement for whether the defendant had committed another offense of child molestation; rather, the defendant’s youth was considered a factor when evaluating the probative value of the prior sexual offense as a similar transaction. In these cases, the defendant’s youth at the time of the prior act was considered when deciding if the testimony should be admitted to show lustful disposition and inclination, i.e., bent of mind. The age of the defendant when the similar transaction occurred is relevant when balancing the probative value of the evidence against its potentially prejudicial impact. Depending on the circumstances of the case, the defendant’s age can act to diminish the probative value of the evidence, resulting in the exclusion of the evidence as more prejudicial than probative. To that end, the State must show a “probative connection” between the similar transaction and the
¶372 26 Because the evidence that Wilson knew right from wrong at
¶373the time of the prior acts was sufficient to rebut the presumption of
¶374his incapacity to commit a crime under OCGA § 16-3-1 and Adams,
¶375the trial court was authorized to conclude that Wilson’s prior acts of
¶376molestation constituted crimes and, therefore, met this requirement
¶377of Rule 414. Consequently, Wilson has not shown plain error.
¶378 (d) Wilson’s prior offenses of child molestation satisfy the
¶379relevancy requirement for admission under Rule 414. Wilson also
¶380contends that, even if the evidence was sufficient to show that his
¶381prior acts of child molestation constituted crimes, the prior offenses
¶382were nevertheless inadmissible because they were not relevant to
¶383any of the charged offenses. We review this claim, which was raised
¶384in the trial court, for an abuse of discretion. See McWilliams v. State,
¶385304 Ga. 502, 511 (3) n.15 (820 SE2d 33) (2018) (trial court did not
¶386 crime for which the defendant is presently being tried. (Citations and punctuation omitted.) Ledford v. State, 313 Ga. App. 389, 390 (1) (721 SE2d 585) (2011). Although these cases are not controlling law on whether a prior offense of child molestation is admissible, they do provide guidance on what kind of evidence may show under Rule 414 that an underage defendant can distinguish right from wrong. 27 abuse its discretion in admitting extrinsic-acts evidence pursuant to
¶387Rule 413); Dixon v. State, 350 Ga. App. 211, 213 (1) (828 SE2d 427)
¶388(2019) (“We review the admission of other acts evidence under Rules
¶389413 and 414 for abuse of discretion.”). As explained below, this claim
¶390lacks merit.
¶391 Rule 414 (a) provides: “In a criminal proceeding in which the
¶392accused is accused of an offense of child molestation, evidence of the
¶393accused’s commission of another offense of child molestation shall be
¶394admissible and may be considered for its bearing on any matter to
¶395which it is relevant.” 18 Evidence is relevant if it has “any tendency
¶396 18 The Court of Appeals erred in relying on Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009), which set forth certain prerequisites for admitting similar transaction evidence under Georgia’s former Evidence Code, as if that case was precedent governing the admissibility of evidence admitted pursuant to the current Code’s Rules 403, 413, and 414. See Wilson, 354 Ga. App. at 67 (1) (a). See also Bradshaw, 296 Ga. at 655-656 (4) (Explaining that the “similar transaction” analysis was supplanted when the current Evidence Code took effect in 2013; the admission of such evidence is now evaluated under Rule 404 (b) using a three-part test adopted from federal cases.). The Court of Appeals also erred in conflating the analysis of whether evidence is relevant under Rule 414 with the analysis of whether the probative value of evidence is substantially outweighed by unfair prejudice under Rule 403. See Wilson, 354 Ga. App. at 68-70 (1) (b). Relevance should not be confused with probative value. As this Court has explained: Relevance and probative value are related, but distinct, concepts. Relevance is a binary concept – evidence is relevant or it is not –
¶397 28 to make the existence of any fact that is of consequence to the
¶398determination of the action more probable or less probable than it
¶399would be without the evidence.” OCGA § 24-4-401. The relevance
¶400standard under Rule 401 is a liberal one. See State v. Jones, 297 Ga.
¶401156, 159 (2) n.2 (773 SE2d 170) (2015); see also United States v.
¶402Glasser, 773 F2d 1553, 1560, n.4 (11th Cir. 1985) (recognizing that
¶403Federal Rule of Evidence 401 broadly defines “relevant evidence”)19;
¶404OCGA § 24-4-402 (all relevant evidence not otherwise prohibited
¶405shall be admissible).
¶406 Evidence that a defendant has engaged in a prior offense of
¶407child molestation is relevant to show, among other things, that the
¶408 but probative value is relative. Evidence is relevant if it has “any tendency” to prove or disprove a fact, whereas the probative value of evidence derives in large part from the extent to which the evidence tends to make the existence of a fact more or less probable. (Emphasis in original.) Olds v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016). 19 See Walker v. State, 306 Ga. 637, 645 (2) (b) (832 SE2d 783) (2019)
¶409(“OCGA § 24-4-401 tracks the language of Federal Rule of Evidence 401 as that rule read in 2011, so in interpreting OCGA § 24-4-401, we properly look to the decisions of the federal appellate courts – particularly the United States Supreme Court and the Eleventh Circuit – interpreting Rule 401, rather than to cases discussing relevance under the old Evidence Code.” (citation omitted)). 29 defendant has “a disposition of character that makes it more likely
¶410that he did commit the act of child molestation charged in the
¶411instant case.” Eubanks v. State, 332 Ga. App. 568, 571 (2) (774 SE2d
¶412146) (2015) (citing United States v. Levinson, 504 Fed. Appx. 824,
¶413827 (II) (a) (11th Cir. 2013)). See also Robinson v. State, 342 Ga. App.
¶414624, 634 (4) (a) (805 SE2d 103) (2017) (same); State v. McPherson,
¶415341 Ga. App. 871, 873-874 (800 SE2d 389) (2017) (same). Thus, Rule
¶416414 (a) supersedes Rule 404 (b)’s general prohibition against the
¶417admission of propensity evidence.20 See Dixon, 341 Ga. App. at 258
¶418(1) (Georgia’s Rule 413 and Rule 414 “supersede the provisions of
¶419OCGA § 24-4-404 (b) in sexual assault and child molestation cases.”
¶420(citation omitted)). See also United States v. Brimm, 608 Fed. Appx.
¶421795, 798 (11th Cir. 2015) (“[Federal] Rules 413 and 414 permit the
¶422introduction of propensity evidence and thus contain exceptions to
¶423Rule 404 (b)’s general ban on propensity evidence in ‘sexual assault’
¶424 20 OCGA § 24-4-404 (b) provides, in relevant part, “[e]vidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion,” except as otherwise provided. 30 and ‘child molestation’ cases.” (citation omitted)); 2 Weinstein’s
¶425Federal Evidence § 413.04 (2020) (“Federal Rule of Evidence 414 (a)
¶426was designed to overcome the limitation imposed by [Federal] Rule
¶427[of Evidence] 404 (b) against using evidence of other crimes or bad
¶428acts to show that the defendant had the propensity to commit the
¶429act charged.” (citations and footnote omitted)).
¶430 However, nothing in Rule 414 prohibits a party from offering
¶431evidence of prior offenses of molestation under Rule 404 (b) for other
¶432permissible purposes, such as to prove motive or intent. Indeed,
¶433propensity evidence often overlaps with or encompasses the
¶434narrower issues of motive and intent. See, e.g., Levinson, 504 Fed.
¶435Appx. at 827-828 (II) (a) (discussing how evidence of the defendant’s
¶436prior conviction and alleged sexual abuse of his daughter was
¶437admissible under both Rule 414 to show propensity and Rule 404 (b)
¶438to show intent); United States v. Cunningham, 103 F3d 553, 556
¶439(7th Cir. 1996) (discussing generally how propensity and motive
¶440evidence often overlap).
¶441 Because Wilson’s prior offenses of child molestation showed
¶442 31 that he had the propensity, as well as the motive and intent, to
¶443engage in offenses of child molestation, the prior offenses evidence
¶444met the relevancy requirement of Rule 414 (a). See Dixon, 350 Ga.
¶445App. at 213-214 (1) (holding that a prior offense of child molestation
¶446was relevant to show “intent, identity, and propensity to commit the
¶447crimes”); Brimm, 608 Fed. Appx. at 797 (prior sexual offenses
¶448against minors relevant to show propensity); United States v.
¶449LaJeunesse, No. 09-324, 2010 U.S. Dist. LEXIS 102072 at *23, 2010
¶450WL 3862829 at *2 (D. Minn. Sept. 28, 2010) (holding that
¶451defendant’s prior federal juvenile child abuse adjudication was
¶452admissible under federal Rule 414 to demonstrate a pattern of
¶453sexual abuse of young boys). Thus, the trial court did not abuse its
¶454discretion in concluding that the prior offenses of molestation were
¶455relevant and offered for a proper purpose under Rule 414. The trial
¶456court’s ruling that the requirements of Rule 414 have been satisfied,
¶457however, does not end the analysis for determining whether
¶458Wilson’s prior offenses of child molestation are admissible. As
¶459explained in the next division, that evidence must also satisfy Rule
¶460 32 403.
¶461 2. Wilson argues, as he did at trial, that even if the evidence of
¶462his prior offenses of child molestation was relevant and offered for a
¶463proper purpose under Rule 414, it should have been excluded under
¶464Rule 403, despite Rule 414 (a)’s provision that evidence “shall” be
¶465admissible. Although this Court has not expressly held that
¶466evidence that satisfies Rule 414 may be excluded under Rule 403,
¶467we have held that the Rule 403 “exclusionary rule generally applies
¶468to all evidence” even when another provision of the Evidence Code
¶469provides that certain evidence “shall” be admissible. State v. Orr,
¶470305 Ga. 729, 742 (3) (b) (827 SE2d 892) (2019) (citing Chrysler Group
¶471v. Walden, 303 Ga. 358, 363 (II) (A) (812 SE2d 244) (2018)). And the
¶472Court of Appeals, relying on decisions of the Eleventh Circuit, has
¶473held that Rule 403 is part of the overall admissibility inquiry under
¶474Rule 414. See, e.g., McPherson, 341 Ga. App. at 873-874 & n.8 (in
¶475applying Georgia’s Rule 414, the court cited United States v.
¶476McGarity, 669 F3d 1218, 1244 (V) (B) n.32 (11th Cir. 2012), which
¶477held that evidence admitted under federal Rule 414 must also
¶478 33 satisfy Rule 403). 21 Several federal appellate courts “have stressed
¶479that Rule 403 remains an important safeguard against the
¶480admission of prejudicial evidence that is otherwise admissible under
¶481Rule 414.” (Citation and punctuation omitted.) United States v.
¶482Loughry, 660 F3d 965, 970 (7th Cir. 2011).22 Additionally, the
¶483application of Rule 403 to exclude evidence offered under Rule 414
¶484eliminates due process concerns posed by evidence of a defendant’s
¶485other offenses of child molestation that might be so prejudicial that
¶486the admission of that evidence would violate the defendant’s
¶487fundamental right to a fair trial. See Loughry, 660 F3d at 970; see
¶488also United States v. Castillo, 140 F3d 874, 883 (10th Cir. 1998)
¶489(“[A]pplication of Rule 403 to Rule 414 evidence eliminates the due
¶490 21 OCGA § 24-4-403 “materially tracks its counterpart in the Federal Rules of Evidence; we therefore . . . look to the decisions of the federal appellate courts, particularly the Eleventh Circuit, for guidance in applying this provision.” Strother v. State, 305 Ga. 838, 847 (4) (d) n.6 (828 SE2d 327) (2019). 22 See, e.g., Brimm, 608 Fed. Appx. at 798 (concluding that evidence
¶491admitted under federal Rule 414 must also meet the requirements of Rule 403); United States v. Woods, 684 F3d 1045, 1064 (11th Cir. 2012) (same); McGarity, 669 F3d at 1244 n.32 (same); see also United States v. Jones, 748 F3d 64, 70 (1st Cir. 2014) (same); United States v. Seymour, 468 F3d 378, 385 (6th Cir. 2006) (same); United States v. LeMay, 260 F3d 1018, 1027-28 (9th Cir. 2001) (same); United States v. Sumner, 119 F3d 658, 661 (8th Cir. 1997) (same); United States v. Larson, 112 F3d 600, 604-605 (2d Cir. 1997) (same). 34 process concerns posed by Rule 414.”). Therefore, we must evaluate
¶492whether the trial court abused its discretion under Rule 403 in
¶493admitting evidence of Wilson’s prior offenses of child molestation.
¶494 “We recognize that Rule 403 is an extraordinary remedy, and
¶495that in reviewing the admission of evidence under Rule 403, we look
¶496at the evidence in a light most favorable to its admission,
¶497maximizing its probative value and minimizing its undue
¶498prejudicial impact.” Morgan v. State, 307 Ga. 889, 897-898 (3) (d)
¶499(838 SE2d 878) (2020). See also Brimm, 608 Fed. Appx. at 797 (“Rule
¶500403 is an extraordinary remedy employed only sparingly since it
¶501permits the trial court to exclude concededly probative evidence.”
¶502(citation and punctuation omitted)). Further, when applying Rule
¶503403 balancing to evidence of prior offenses of child molestation, the
¶504court must take into account that such evidence is naturally
¶505prejudicial. However, generally, it is not unfairly prejudicial; rather
¶506it is prejudicial for the same reason it is probative: it tends to prove
¶507the defendant’s propensity to molest children. See United States v.
¶508Kelly, 510 F3d 433, 438 (4th Cir. 2007); see also Anglin v. State, 302
¶509 35 Ga. 333, 337 (806 SE2d 573) (2017) (“[I]n a criminal trial,
¶510inculpatory evidence is inherently prejudicial; it is only when unfair
¶511prejudice substantially outweighs probative value that [Rule 403]
¶512permits exclusion.” (citation and punctuation omitted)); cf. State v.
¶513Dowdell, 335 Ga. App. 773, 780-781 (783 SE2d 138) (2016)
¶514(Peterson, J., concurring specially) (explaining in the similar context
¶515of Rule 413 that, while propensity ordinarily constitutes unfair
¶516prejudice, the text of the rule allowing propensity evidence in
¶517specific contexts reflects a policy decision by the rule’s makers that
¶518the prejudice of propensity is not unfair in those contexts).
¶519 Finally, when applying Rule 403 balancing to prior child
¶520molestation offenses, the trial court must make a common sense
¶521assessment of all the circumstances that may logically bear on the
¶522probative or prejudicial value of the evidence, including the need for
¶523the evidence, the overall similarity between the prior offenses of
¶524molestation and the charged conduct, and the temporal remoteness
¶525of the prior offenses. See Brimm, 608 Fed. Appx. at 798; United
¶526States v. Jernigan, 341 F3d 1273, 1282 (11th Cir. 2003); McAllister
¶527 36 v. State, 351 Ga. App. 76, 82 (1) (830 SE2d 443) (2019). In this case,
¶528Wilson’s age when he committed the prior offenses is also a
¶529circumstance to consider in weighing the probative value of the
¶530evidence. With these principles in mind, we now consider whether
¶531the trial court abused its discretion in admitting at trial evidence of
¶532Wilson’s prior offenses of child molestation under Rule 403, based
¶533on its determination that the prior offenses had “significant and
¶534substantial” probative value that was not “substantially outweighed
¶535by undue prejudice[.]”
¶536 Wilson argues that (a) the probative value of the evidence is
¶537outweighed by its prejudicial effect under the circumstances
¶538because: (i) Wilson was too young to appreciate the wrongfulness of
¶539his acts; (ii) the prior acts of molestation were insufficiently similar
¶540to the charged acts; and (iii) the prior acts were too temporally
¶541remote. He also argues that (b) the trial court should have excluded
¶542the prior offenses of molestation under Rule 403 because there was
¶543a risk that the jurors would be confused about the application of the
¶544infancy defense to the prior offenses evidence.
¶545 37 (a) The probative value of the evidence of Wilson’s alleged prior offenses of child molestation was not substantially outweighed by the danger of unfair prejudice.
¶546 (i) Wilson’s youth. Assuming Wilson was under the age of 13
¶547when he allegedly committed some or all of the prior offenses of
¶548molestation, the evidence admitted at trial was sufficient to rebut
¶549the presumption of incapacity due to infancy, as explained in
¶550Division 1. The evidence was sufficient to allow the jury to infer that
¶551Wilson understood the difference between right and wrong and
¶552appreciated the wrongfulness of his acts when he committed them.
¶553Wilson argues that the probative value of the prior offenses was
¶554diminished because he was allegedly a victim of child molestation
¶555himself and his conduct with P. W. was a product of that abuse;
¶556however, he presented no evidence in support of these claims either
¶557at the pretrial admissibility hearing or at trial.
¶558 (ii) Similarity of the prior offenses of molestation to the charged
¶559offenses. In this case, the evidence shows that the prior offenses of
¶560molestation were similar in the following particulars. Wilson was
¶561related to both of the underage girls, lived in the same household
¶562 38 with them, and was sometimes responsible for their supervision. He
¶563touched the genital areas of both girls above and under their
¶564clothing, he engaged them in acts of oral sodomy, and he had sexual
¶565intercourse with them. And Wilson tried to conceal his conduct and
¶566to prevent the girls from disclosing what he had done to them. See
¶567Dixon, 341 Ga. App. at 262 (1) (b) (holding that prior molestations
¶568were sufficiently similar to charged offense to be admitted under
¶569Rules 413, 414, and 403 when, notwithstanding that victims were
¶570different genders, each involved “inappropriate sexual contact”
¶571between defendant and child of similar age to whom defendant
¶572gained access through a relationship with the child’s mother);
¶573Eubanks, 332 Ga. App. at 569-570 (1) (holding that prior offenses
¶574were sufficiently similar to charged offense to be admitted under
¶575Rules 414 and 403 when all involved minor girls of similar ages and
¶576allegations that defendant digitally penetrated minors’ vaginas).
¶577 (iii) Temporal remoteness. The trial court noted during the
¶578hearing that the nearly 30-year period between the commission of
¶579the alleged prior acts of child molestation and the charged offenses
¶580 39 was significant. Rule 414 imposes no time limit on prior offenses for
¶581which evidence may be admitted, although remoteness in time may
¶582decrease probative value under Rule 403. See United States v.
¶583Meacham, 115 F3d 1488, 1492 (I) (B) (10th Cir. 1997); United States
¶584v. Cardenas, 895 F2d 1338, 1344 (II) (A) (11th Cir. 1990) (“[T]he
¶585more time separating the charged and prior offense, the less
¶586probative value can be assigned the extrinsic evidence.” (citation
¶587omitted)). Sufficient factual similarity of prior child molestation
¶588offenses to the charged offense can outweigh concerns of remoteness
¶589in time. See United States v. Mercer, 653 Fed. Appx. 622, 628 (II) (B)
¶590(10th Cir. 2016). “[A]s a practical matter, evidence of other sex
¶591offenses by the defendant is often probative and properly admitted,
¶592notwithstanding very substantial lapses of time in relation to the
¶593charged offense or offenses.” Meacham, 115 F3d at 1492 (I) (B)
¶594(citation omitted). In this case, the substantial similarities between
¶595the prior offenses of child molestation and the charged offenses, as
¶596just discussed, allowed the trial court to assign substantial probative
¶597 40 value to the prior offenses, despite the lapse in time.23
¶598 (iv) Prosecutorial need. Finally, although Wilson has not
¶599contested in the trial court or on appeal the State’s need for the
¶600evidence of his alleged child molestation offenses involving P. W.,
¶601the State argued that it needed the evidence to show Wilson’s motive
¶602and intent and to rebut Wilson’s defense that B. O. had fabricated
¶603her claims of child molestation. For this reason, we agree that the
¶604trial court was authorized to find that the prosecutor’s need
¶605 23 See Maner v. State, 358 Ga. App. 21, 24 (1) (852 SE2d 867) (2020) (holding that prior molestation was sufficiently similar to charged offenses for evidence to be admitted under Rules 414 and 403, despite lapse of more than 50 years, when all offenses involved minor girls of similar ages who lived in same household as defendant); Dixon, 341 Ga. App. at 262 (1) (b) (holding that “[t]he passing of seven to thirteen years between [the defendant’s] molestation of [a prior victim] and the victim in this case does not mandate the conclusion that the trial court abused its discretion in its application of the [Rule 403] balancing tests, particularly [when the defendant’s] access to the children was based upon a relationship with their mother”); Eubanks, 332 Ga. App. at 570 (1) (holding that passage of 17 years between prior child molestation offenses and current charges, “[a]lthough somewhat remote in time, . . . did not require exclusion because of the similarity of the events and the resulting probative value of the challenged evidence”); United States v. Benally, 500 F3d 1085, 1092 (III) (10th Cir. 2007) (holding that evidence of two rapes more than 30 years prior to charged offense was admissible under Rules 413, 414, and 403, despite remoteness in time, when the incidents all involved young females, mostly young female family members, of similar ages, and many of the prior incidents, like the charged offense, involved the use of force).
¶606 41 increased the probative value of the prior child molestation
¶607evidence. 24
¶608 Given the evidence presented on each of the above factors and
¶609viewing the evidence, as we must, in the light most favorable to its
¶610admission, we cannot say that the trial court abused its discretion
¶611in determining that the probative value of the prior child
¶612molestation evidence was not substantially outweighed by the
¶613danger of unfair prejudice. See Dixon, 350 Ga. App. at 214-215 (1).
¶614 (b) The probative value of the alleged prior offenses of child molestation was not substantially outweighed by the danger of confusion of the issues.
¶615 Wilson argues that evidence of his prior offenses of molestation
¶616was unusually confusing because, before the jury could even
¶617consider those prior offenses as evidence, it was required to conduct
¶618a “trial within a trial” and resolve questions concerning how old
¶619 24 See United States v. King, 713 F2d 627, 631 (11th Cir. 1983) (“[T]he more essential the evidence [to the prosecution], the greater its probative value, and the less likely that a trial court should order the evidence excluded.”); Robinson, 342 Ga. App. at 635 (evidence of a prior, similar sexual assault was probative to rebut the defendant’s claim that the victim lacked credibility); Kritlow v. State, 339 Ga. App. 353, 356 (2) (793 SE2d 560) (2016) (evidence of prior, similar sexual assaults was probative to rebut defendant’s claim that the victim fabricated account of sexual assault). 42 Wilson was when he committed each of the prior offenses; whether
¶620the presumption of incapacity due to infancy applied to him; and
¶621whether the State had met its burden of rebutting the presumption
¶622of infancy.
¶623 At trial, however, Wilson did not elicit or present evidence
¶624establishing his age when he committed the prior offenses, nor did
¶625he present evidence from which the jury could infer that he lacked
¶626the capacity to commit those offenses. In fact, the jury could have
¶627concluded that Wilson was 15 years old when he committed the prior
¶628offenses because P. W. and her mother both testified that they
¶629believed he was then 15 years old. The record also shows that Wilson
¶630did not request a jury instruction on how the jury should consider or
¶631resolve questions of fact concerning Wilson’s age or capacity, and the
¶632trial court did not give any. Wilson has not argued that such an
¶633instruction should have been given sua sponte. However, the trial
¶634court did give preliminary and final charges instructing the jury on
¶635how it should consider evidence of prior offenses of child molestation
¶636generally. Given that this evidence did not present the “trial within
¶637 43 a trial” problem Wilson asserts and because the jury was instructed
¶638on how to consider the prior-offenses evidence, Wilson has not
¶639demonstrated how the jury would have been confused by the
¶640admission of this evidence.
¶641 For these reasons, the trial court did not abuse its discretion in
¶642admitting, pursuant to Rules 403 and 414, Wilson’s prior alleged
¶643child molestation offenses.
¶644 Judgment affirmed. All the Justices concur, except McMillian, J. disqualified.
¶645 44