A judge ruled Friday that the state can present evidence of “similar transactions” in the trial of Elizabeth Gaddy, who allegedly had sexual relations with a 13-year-old male student she had taught at Callaway Middle School.

Gaddy, 46, of Hogansville is scheduled for trial Oct. 19 on charges of aggravated child molestation, child molestation and enticing a child for indecent purposes.

Chief Assistant District Attorney Monique Kirby said she intends to show that Gaddy performed oral sex on the victim’s 21-year-old brother and allowed his 19-year-old brother to fondle her. Kirby said the defendant also solicited oral sex, kissing and sexual intercourse from an 18-year-old high school student.

“It goes to her lustful disposition for younger boys,” Kirby said. “… She would take them on dirt roads, text them at all hours of the night and have sexy conversations on the phone.”

Kirby said two witnesses would testify that Gaddy was “infatuated and in love” with the boys’ father.

If sodomy really happened, the males were equally culpable, said defense attorney William Kirby II of Columbus, but he said sheriff’s investigator Sgt. Kelli Ellington “apparently took no interest in enforcing the law in this case.” In the case of the 18-year-old, he said, it would have been mere conversation and no crime occurred.

Monique Kirby said it doesn’t have to be a crime to be a similar transaction.

“It’s always a difficult area of the law,” Judge Quillian Baldwin said. “But we’ve always been a very liberal state in letting in these kind of things.”

Baldwin denied constitutional arguments to throw out the aggravated child molestation charge, which carries a mandatory minimum 25 years in prison without parole.

“It’s the essence of cruel and unusual punishment in violation of the Eighth Amendment,” William Kirby said.

Monique Kirby said the sentencing statute has been reviewed in the appellate courts numerous times and been deemed constitutional.

“I’m not going to rule that it’s cruel and unusual, but I’ll let there be a continuing objection throughout the trial so you don’t have to continually make it,” Baldwin said.

The judge denied a defense motion that prosecutors not refer to the 13-year-old student as a “victim” during the trial.

“It’s sort of an inflammatory conclusion,” said defense co-counsel Will Kirby III. “It assumes a crime has been committed. Sometimes the crime is not in doubt, but in this case whether the person is a victim is very much an issue.”

It’s fine to use the term during closing arguments, but not throughout the trial, he said.

“The state’s position is that the child is a victim,” Monique Kirby said. “I’m not going to say victim, victim, victim, but I want the opportunity to occasionally say that. I’m an advocate and the jury expects me to believe the child is a victim.”

Will Kirby said it’s not the same as calling Gaddy the “defendant” because “she clearly is the defendant and has the presumption of innocence.”

Baldwin said he’s never heard anybody from the district attorney’s office continually use the term “victim” and “I don’t expect them to use it a lot anyway.”

Baldwin, calling it an “unusual request,” ruled that the defense can have Ellington’s handwritten notes on the investigation, but “I’ll look at the notes and see if there’s anything objectionable.”

William Kirby has brought up the issue of pre-trial publicity, but “I haven’t filed a motion for change of venue,” he said. “We don’t want a change of venue, but there could be a motion forthcoming depending on how jury selection goes.”

He told Baldwin that the sheriff’s department and district attorney’s office failed to notify the state Department of Family and Children Services about the alleged sexual abuse as required by law.

“Is he suggesting the children are unsafe with his client?” Monique Kirby said. “The role of DFCS is to keep families together. Is he taking the position that the kids are at risk because their mom is a child molester?”

Baldwin said he probably wants to use the allegation for impeachment purposes, adding, “You could argue that (prosecutors) didn’t follow the law either.”

Monique Kirby said the investigator spoke with Susan Webb at DFCS and it was determined that DFCS didn’t need to get involved.

“That’s not unusual,” the prosecutor said. “The law says you have to make a report to the sheriff’s department or DFCS, and it was done.”

Gaddy waived formal arraignment and pleaded not guilty Friday after rejecting a plea bargain deal. Monique Kirby said she offered a split sentence of prison and probation, but declined to be more specific.

Joel Martin can be reached at jmartin@ lagrangenews.com or (706) 884-7311, Ext. 235.