BENHAM, Justice.
Appellant Robert Lee Reeves, Jr., was sentenced to life imprisonment upon the jury's verdict finding him guilty of felony murder predicated upon aggravated assault.
Viewed in the light most favorable to the verdict, the evidence showed the body of victim Crystal Morgan was discovered along a wooded path in Macon on the morning of July 29, 2009. The investigating officer testified that evidence at the crime scene showed there had been a struggle. The autopsy noted superficial lacerations in the anal area and inside the vagina that appeared to have occurred at or near the time of death. The victim had injuries around her neck and petechial pinpoint hemorrhages in the eyes which were consistent with strangulation. Although markings on the victim's body were more consistent with strangulation from some type of ligature, the medical examiner could not rule out manual strangulation. The victim's underpants were down to her knees and dirt was discovered on the victim's hands, face and sandals. Male DNA taken from the victim's body was placed in a sexual assault kit and was later matched to the appellant's DNA recorded in a database and also to DNA from a buccal swab taken from appellant by police investigators. No other male DNA was found in the samples taken from the victim's body. The State also presented similar transaction evidence discussed further in Division 2.
1. We reject appellant's assertion that the conviction should be reversed because the evidence was legally insufficient to support it. Although appellant presented no evidence to support it, appellant's attorney argued to the jury the theory that appellant, in the days immediately prior to the victim's murder, had consensual sexual relations with the victim but that some other person, who had possibly used a condom, had committed the acts that ended in the victim's death. He pointed to the evidence that a condom wrapper was found at the scene of the crime close to the victim's body. Appellant argues on appeal that, because the prosecution failed to rebut this hypothesis by providing evidence of the victim's movements in the days immediately leading up the estimated time of death and failed to establish he and the victim were strangers, it would have been irrational for any juror to dismiss the theory that his DNA was present as the result of consensual sex and that someone else had committed the crime charged. He asserts this hypothesis created a reasonable doubt based upon common sense and reason that defeats the requirement of OCGA § 24-4-6: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."
"Whether the evidence excludes every other reasonable hypothesis is ordinarily a question for the jury, whose finding shall not be disturbed unless the verdict of guilt is unsupportable as a matter of law." Owens v. State, 286 Ga. 821, 825(1), 693 S.E.2d 490 (2010). Further,
(Citations and punctuation omitted.) White v. State, 263 Ga. 94, 97(1), 428 S.E.2d 789 (1993). The record reflects the jury was properly charged that, in order to convict on
2. We also reject appellant's assertion that the conviction should be reversed because evidence of a prior offense was improperly admitted because the two transactions were not sufficiently similar.
Based on a guilty plea to criminal attempt to commit rape, entered by appellant on October 28, 1998, the State filed a notice of intent to introduce evidence of a similar transaction. After a hearing as required by Uniform Superior Court Rule 31.3, the trial court allowed the evidence to be introduced to show the appellant's course of conduct and bent of mind, after a limiting instruction was given to the jury. Before evidence of a similar transaction may be introduced, the state must make three affirmative showings: (1) it must identify a proper purpose for admitting the transaction; (2) show that the accused committed the independent offense; and (3) show a sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the later. Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991). Here, the second element is undisputed as appellant pleaded guilty to the 1998 attempted rape. With respect to the first element, the state filed a notice of intent to produce evidence of a similar transaction for the purpose of showing course of conduct, intent, modus operandi, scheme, and bent of mind, all of which were appropriate purposes under Georgia law at the time of appellant's trial.
The victim of the earlier crime testified appellant followed her when he saw her walking alone toward a store in the same area of Macon where the victim's body was discovered, and that he grabbed her around the neck, pulled her to ground, pushed her face to the grass, tried to pull her shorts down, and, after choking her with his hands, put his fingers inside her, but she escaped. The victim's testimony established the following similarities between the two acts: the two victims were both approximately the same age at the time they were attacked; although the transcript does not establish the previous victim's race, the trial court noted in its order that both victims were young African-American women; both victims were choked or strangled; in both instances, the victim's clothing was torn and her pants or underpants were pulled down; in both instances, the victim's face was pressed into the ground and the victim was sexually assaulted; although
In Reed v. State, 291 Ga. 10, 727 S.E.2d 112 (2012), this Court clarified the standard by which an appellate court reviews the trial court's ruling to admit evidence of similar transactions in a criminal case. Evidentiary rulings are reviewed under an abuse of discretion standard, which, we noted in Reed, is different from and not as deferential as the clearly erroneous/any evidence standard of review. Id. at 13, 727 S.E.2d 112. The trial court's factual findings, however, are accepted on appellate review unless clearly erroneous where the purpose of the finding, as in the case of a ruling on the admission of similar transaction evidence, is the application of a mandatory test. Id. at 14, 727 S.E.2d 112. Accordingly, we will not disturb the findings on the issue of similarity or connection of similar transaction evidence unless the finding is clearly erroneous. Id.
Appellant relies upon certain differences in the evidence between the two crimes, but the proper focus in a similar transaction case is on the similarities between the two transactions and not the differences. See Hinton v. State, 280 Ga. 811, 818(6), 631 S.E.2d 365 (2006). We note that "[w]hile some aspects of the earlier crime differed from the one for which [appellant] was on trial, the similarities are striking." Ellis v. State, 282 Ga.App. 17, 24(3)(c), 637 S.E.2d 729 (2006). Appellant also asserts the lapse in time between the two incidents was too great for the similar transaction evidence to be admissible. Lapse of time between the similar transaction and the crime at issue "generally goes to the weight and credibility of the evidence, not to its admissibility." (Punctuation and citation omitted.) Wheeler v. State, 290 Ga. 817, 818(2), 725 S.E.2d 580 (2012). Further, "[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses." Johnson v. State, 242 Ga. 649, 653(3), 250 S.E.2d 394 (1978).
Judgment affirmed.
All the Justices concur.