Bill v. the State , 341 Ga. App. 340 ( 2017 )

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 20, 2017
In the Court of Appeals of Georgia
A17A0790. BILL v. THE STATE.
ANDREWS, Judge.
Following a jury trial, Jason Anthony Bill was convicted of kidnapping,
aggravated assault, aggravated sodomy, aggravated sexual battery, rape, and false
imprisonment. Bill appeals, challenging several evidentiary rulings, the denial of his
motion for mistrial, and the trial court’s jury instructions. Finding no error, we affirm.
Viewed favorably to the jury’s verdict, see Moorer v. State, 290 Ga. App. 216
(659 SE2d 422) (2008), the evidence shows that the victim, who was originally from
El Salvador and speaks no English, lived at the same Cobb County apartment
complex as Bill and worked at a nearby bar. Bill, a Cobb County Sheriff’s deputy,
occasionally visited the bar.
On the evening of July 14, 2008, Bill entered the bar while the victim was
working. He appeared angry and drunk, and the bar’s owner asked him to leave. Bill
left, but returned a short time later with a gun. He called the victim over, displayed
his badge, and grabbed her arm. Bill then placed her in his truck and locked the doors.
At that point, the victim believed she was under arrest. Instead of taking her to
jail, however, Bill drove to his apartment, where he handcuffed the victim and told
her to “suck” his penis. When the victim refused, Bill pulled out his gun, and she
complied. He then beat the victim with his hands and a belt, tore off her clothing, and
tried to choke her with her brassiere. Bill also raped her and placed his finger in her
anus. To prevent escape, Bill bound the victim’s hands to her feet with a rope and
gagged her by stuffing a shirt in her mouth. Eventually, however, she managed to
untie the rope and ran from Bill’s apartment, knocking on neighboring apartment
doors for help.
An 11-year-old girl testified that she was watching television at her
grandmother’s apartment just before midnight on July 14, 2008, when she heard a
knock at the door. She opened the door and found the victim, who was naked,
handcuffed, and appeared to have been beaten. The girl’s grandmother gave the
victim a robe, and the police were called. Although the family could not understand
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the victim, who was speaking in Spanish, she pointed at a man on a motorcycle that
was slowly circling the complex. When the police arrived, the grandmother’s
boyfriend told the officers where the motorcycle had gone. The police found Bill next
to the motorcycle and placed him under arrest. The victim subsequently identified Bill
as her attacker.
Bill testified at trial, denying that he assaulted the victim. He asserted that he
had previously paid the victim for sex and that although they had planned another
sex-for-money encounter for July 14, 2008, they only kissed that night. The jury,
however, found him guilty of kidnapping, aggravated assault, aggravated sodomy,
aggravated sexual battery, rape, and false imprisonment.
1. In several claims of error, Bill argues that the trial court improperly excluded
evidence that the victim had engaged in prostitution. Specifically, he sought to
introduce testimony that (a) after the assault, someone had written “hooker” on her
apartment door, and (b) a previous roommate had kicked her out of her residence
because she was a prostitute and brought too many men to the home.
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(a) Pursuant to former OCGA § 24-2-3 (a), the rape shield statute applicable
at the time of trial,1 evidence relating to a victim’s past sexual behavior generally is
not admissible in a rape trial, either as direct evidence or on cross-examination of the
victim or other witnesses. Past sexual behavior, however, may be admitted when the
trial court finds that such behavior “directly involved the participation of the accused
and . . . that the evidence expected to be introduced supports an inference that the
accused could have reasonably believed that the complaining witness consented to
the conduct complained of in the prosecution.” Former OCGA § 24-2-3 (b).
Bill does not argue that evidence of the victim’s prostitution demonstrates
consent; in fact, he testified that no sexual relations occurred on July 14, 2008.
Instead, he claims that the prostitution evidence was relevant to show that someone
else could have been angry at the victim and caused her injuries. According to Bill,
“any one of the men who came into contact with [the victim through her prostitution]
could have been responsible for her physical and/or psychological injuries.”
But even if such evidence might be admissible under certain circumstances,
despite the limitations of the rape shield statute, the trial court found it irrelevant,
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Bill was tried in February 2011, before Georgia’s new Evidence Code took
effect in 2013. The current rape shield statute is codified at OCGA § 24-4-412.
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speculative, and highly prejudicial here. We agree. Bill has pointed to nothing – other
than rank speculation – linking the July 14, 2008 sexual assault to the victim’s prior
prostitution with other men. There was no evidence that she was previously
threatened or physically injured by any of these individuals. Simply put, Bill has
drawn no nexus between her history of prostitution and the assault in this case. The
trial court, therefore, properly excluded the evidence. See Moorer, supra at 219 (4)
(evidence of victim’s prior prostitution not relevant to aggravated assault charge
where defendant “failed to show any nexus whatsoever between the alleged
prostitution and the conclusion that someone else could have inflicted the victim’s
injuries”); Stargel v. State, 210 Ga. App. 619, 622 (5) (436 SE2d 786) (1993) (trial
court properly excluded evidence where only “possible relevance was purely
speculative”).
Moreover, even if some nexus had been shown, exclusion of this evidence was
harmless. Although the trial court refused to admit certain prostitution-related
testimony, it allowed Bill to assert that he had previously paid the victim for sex.
Evidence of her prostitution, therefore, was before the jury, and further testimony
regarding this behavior would have been cumulative. Accordingly, its exclusion
provides no basis for reversal. See Brooks v. State, 313 Ga. App. 789, 794 (2) (b)
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(723 SE2d 29) (2012) (defendant not harmed by exclusion of evidence that was
cumulative of defendant’s trial testimony).
(b) Bill claims that the trial court erred in preventing him from impeaching the
victim with the prostitution-related evidence. According to Bill, the victim opened the
door to cross-examination “concerning [her] prior acts of prostitution” when she
denied having sex with him before July 14, 2008. It is true that evidence of prior
sexual behavior may be admissible to impeach a victim’s contradictory trial
testimony. See Tidwell v. State, 306 Ga. App. 307, 311 (5) (701 SE2d 920) (2010).
The “impeachment” evidence cited by Bill, however, does not relate to his prior
contact with the victim. It involved general allegations that she had engaged in
prostitution. Bill has not cited us to any place in the record where the victim denied
being a prostitute; she simply stated that she had not had sexual relations with him.
The general prostitution evidence, therefore, did not contradict or impeach the
victim’s testimony, and Bill was not entitled to cross-examine her on it. See id.; see
also former OCGA § 24-9-82 (“A witness may be impeached by disproving the facts
testified to by him.”).
(c) Finally, Bill argues that portions of the prostitution-related evidence did not
directly involve sexual behavior and thus fell outside of the rape shield statute. As
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discussed above, however, the trial court properly concluded that the evidence was
speculative, irrelevant, and subject to exclusion. Although Bill claims that this ruling
unduly restricted his cross-examination of the State’s witnesses, a trial court “retain[s]
broad discretion to impose reasonable limits on cross-examination to avoid
harassment, prejudice, confusion, repetition, or irrelevant evidence.” Sanders v. State,
290 Ga. 445, 446 (2) (721 SE2d 834) (2012).
2. Bill contends that the trial court erred in excluding evidence that the victim
had previously filed a “false” sexual assault report on behalf of a roommate, who was
allegedly raped by her boyfriend. Before trial, the State moved in limine to exclude
evidence of this report. Arguing that the rape report was “false” because the boyfriend
was only convicted of battery, Bill asserted that the report was admissible to show
that the victim had a history of fabricating sexual assault allegations. He further
argued that she was motivated to file false reports because: (a) she was trying to
secure a special visa available for crime victims; and (b) she wanted to obtain money
by suing the apartment complex and Cobb County for failing to protect her.
The trial court concluded that Bill had not demonstrated a reasonable
probability of falsity with respect to the prior report involving the victim’s roommate,
rendering it inadmissible. See Clements v. State, 279 Ga. App. 773, 774 (2) (632
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SE2d 702) (2006) (“Before evidence of previous false allegations of sexual abuse can
be admitted, the trial court must determine outside the jury’s presence that a
reasonable probability of falsity exists.”). After further discussion, however, Bill’s
counsel made the following proposition:
What about this? What if we just don’t even – what if we don’t even
tender [the report] as a prior false claim? Merely, that it is what it is.
And the claims were made, and the results were what they were.
Because, really, the core reason that we offer it is, as I said, to show –
it’s part of her motive to fabricate. It’s part of this lawsuit that is coming
into this trial, and it’s directly related to that. I certainly am not going to
tell the jury that it was false, because I wasn’t there. I don’t know.
The trial court stated that it would allow the report to “be[] tendered in that
fashion.” The record further shows that evidence regarding the prior sexual assault
report, the victim’s civil lawsuit against various defendants, and her efforts to obtain
a special visa was introduced at trial, forming the basis for a key defense argument
– that the victim fabricated the assault allegations against Bill. Despite Bill’s claim
to the contrary, therefore, the trial court admitted evidence of the prior report. And
to the extent the defense was limited in labeling the prior report as “false,” that
limitation was suggested and agreed to by defense counsel. This claim of error,
therefore, provides no basis for reversal. See Gorman v. State, 318 Ga. App. 535, 540
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(4) (734 SE2d 263) (2012) (“One cannot complain of a result he procured or aided in
causing, and induced error is not an appropriate basis for claiming prejudice.”)
(punctuation omitted).
3. Next, Bill argues that the State improperly called the victim as a rebuttal
witness to bolster her prior testimony. After the defense rested its case, the
prosecution briefly re-called the victim to ask her whether she had: (a) engaged in
sexual relations with Bill before July 14, 2008; (b) visited his apartment prior to July
14, 2008; (c) voluntarily entered his apartment on July 14, 2008; and (d) agreed to
have sex with him for money on that date. To each question, the victim replied, “no.”
According to Bill, this testimony did not constitute rebuttal because it “was not
offered to refute or explain any of the Defendant’s evidence.”
“A trial court’s rulings concerning the scope of rebuttal testimony are subject
to review only for an abuse of discretion.” Galvan v. State, 330 Ga. App. 589, 594 (2)
(768 SE2d 773) (2015). In this case, the trial court concluded that the State re-called
the victim to rebut evidence presented by the defense, including testimony from Bill
that he had previously had sex with the victim and that she willingly came to his
apartment on July 14, 2008, to engage in sex for money. We find no error. A trial
court may “allow relevant evidence during rebuttal even if such evidence tends to
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bolster the State’s case more than to directly impeach defense evidence.” Id.
(punctuation omitted). The trial court did not abuse its discretion in permitting the
victim’s rebuttal testimony. See id.
4. Evidence at trial showed that Bill, an Iraq War veteran, had a drinking
problem. To help explain his alcohol use, Bill sought to introduce testimony that his
best friend had been killed in Iraq. The trial court excluded the evidence, and Bill
challenges this ruling on appeal, asserting that the trial court erred in limiting relevant
testimony.
We disagree. Evidence regarding the death of Bill’s friend shed no light on the
July 14, 2008 assault or the fact that Bill had an alcohol problem and was drinking
that night. The trial court did not abuse its discretion in finding such evidence
irrelevant. See Chambers v. State, 308 Ga. App. 748, 751 (1) (708 SE2d 651) (2011)
(applying abuse of discretion standard); former OCGA § 24-2-1 (“Evidence must
relate to the questions being tried by the jury and bear upon them either directly or
indirectly. Irrelevant matter should be excluded.”). Moreover, Bill testified that he
served two tours of duty in Iraq and began drinking more heavily when he returned
from his second tour, raising a link between his military service and his alcohol use.
Given this evidence, we find it highly probable that the trial court’s decision to
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exclude additional testimony regarding Bill’s war experience did not contribute to the
verdict. Even if the trial court erred in excluding the testimony, therefore, the error
was harmless. See McWilliams v. State, 280 Ga. 724, 727 (4) (632 SE2d 127) (2006).
5. The trial court permitted the State, over objection, to cross-examine Bill
about his failure to offer evidence corroborating his claim that he had communicated
with the victim via cell phone prior to July 14, 2008. When Bill responded that he had
hoped the State would present such evidence, the prosecutor retorted: “I didn’t know
before today, or before yesterday, that you and [the victim] had some prior
relationship.” Defense counsel objected and moved for a mistrial, asserting that the
prosecutor had improperly testified and commented on Bill’s right to remain silent.
Although the trial court denied the motion for mistrial, it sustained the objection and
gave the following curative instruction to the jury:
Ladies and gentlemen, I sustained an objection by the Defense, and I’ll
instruct you that the State should not comment on evidence or on what
it knows or does not know from the evidence. And so I’ll ask you to
disregard the last question that was asked by the State.
Bill now claims that the trial court erred in denying his motion for mistrial. The
record shows, however, that he did not object to the curative instruction or renew his
motion after the trial court gave it. “It is well settled that where a defendant objects
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and moves for mistrial and the trial court denies the motion but takes some corrective
action, if the defendant is dissatisfied with that action, he must renew the objection
or motion.” Gaines v. State, 339 Ga. App. 527, 529 (2) (792 SE2d 466) (2016)
(punctuation omitted). This claim of error, therefore, has been waived. See id.;
Mauldin v. State, 313 Ga. App. 228, 234 (3) (a) (721 SE2d 182) (2011).
6. Finally, Bill argues that the trial court improperly commented on the
evidence by charging the jury that “[v]aginal or anal trauma and physical injury are
not constituent elements of the criminal offense of rape or aggravated sexual battery.”
The cited charge, however, did not comment on the evidence produced at trial.
Rather, it accurately stated that physical harm is not needed to establish rape or
aggravated sexual battery. See Skipper v. State, 257 Ga. 802, 804 (1) (b) (364 SE2d
835) (1988) (“Other than the penetration of the female sex organ by the male sex
organ, the infliction of physical injury is not an element of the offense of rape.”); Lee
v. State, 306 Ga. App. 144, 145 (1) (701 SE2d 582) (2010) (physical injury need not
be shown to prove aggravated sexual battery).
“The only requirement regarding jury charges is that the charges, as given,
were correct statements of the law and, as a whole, would not mislead a jury of
ordinary intelligence.” Sims v. State, 296 Ga. App. 461, 464 (3) (675 SE2d 241)
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(2009) (punctuation omitted). The court’s charge correctly stated the law and was not
misleading. Accordingly, the trial court did not err in giving the instruction. See id.;
Corbin v. State, 305 Ga. App. 768, 771 (2) (700 SE2d 868) (2010).
Judgment affirmed. Ellington, P. J., and Rickman, J., concur.
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