Barrett v. State

• Decision Date: 28 April 2023
• Docket Number: A23A0849
• Parties: BARRETT v. THE STATE.
• Court: Georgia Court of Appeals

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BARRETT v. THE STATE.

No. A23A0849

Court of Appeals of Georgia, Third Division

April 28, 2023

DOYLE P. J., GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS

PHIPPS, Senior Appellate Judge.

A jury found Jason Barrett guilty of one count each of child molestation, false imprisonment, and battery, as well as several counts of simple battery, which the trial court merged into the battery conviction. Barrett appeals from the denial of his motion for a new trial, contending that the trial court erred by refusing to admit evidence of his mental deficiencies and handicaps and by denying his motion for a mistrial after a witness testified about other bad acts Barrett allegedly committed. For the reasons that follow, we discern no reversible error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Duran v State, 274 Ga.App. 876, 877 (1) (619 S.E.2d 388) (2005). So viewed, the record shows that, on the day in question, then sixteen-year-old Barrett and the five-year-old victim were playing video games at Barrett's house. At some point the two entered a closet, where Barrett lowered the victim's pants and underwear, covered the victim's mouth and nose with his hand, and placed his penis against the victim's buttocks while the victim kneeled on the floor. Although the victim "scream[ed]" for help, Barrett prevented him from getting up and slapped him in the face.

A grand jury indicted Barrett for one count each of aggravated child molestation, aggravated sodomy, false imprisonment, and battery; two counts of child molestation; and three counts of simple battery. At trial, following the State's case-in-chief, the trial court directed a verdict of acquittal on one of the child molestation counts. The jury thereafter found Barrett not guilty of aggravated child molestation and aggravated sodomy, but guilty of the remaining charges. The trial court merged the three simple battery convictions into the battery conviction and imposed a total sentence of ten years in prison, to be followed by twenty years on probation. Barrett filed a motion for a new trial, which the trial court denied, and this appeal followed.

1. Barrett was deemed incompetent to stand trial in August 2012, but was restored to competency one year later. On the first day of trial, during the parties' discussions of the State's motions in limine, the State brought up the possibility that Barrett might testify about his competency. Defense counsel responded that Barrett ought to be able to testify about "who he is, what grade he's in, whether he's had sufficient problems before, medicines he takes, things of that nature." Counsel maintained that those topics "would be pertinent for the jury to know who this person actually is, in testifying since they take his credibility into issue." When asked how Barrett's medications would be material, defense counsel responded, without elaboration, that "he takes medications for certain mental deficiencies that he has been born with." The trial court ruled that testimony as to Barrett's "mental condition[ ]" or past competency would have to come from an expert, not Barrett himself, and that any testimony about medications Barrett was taking was immaterial and therefore inadmissible. Barrett thereafter chose not to testify at trial. He contends on appeal that the trial court erred by prohibiting testimony from him or other witnesses about his mental deficiencies and handicaps. While we agree that the trial court erred, Barrett has not met his burden of showing harm.

We review a trial court's evidentiary rulings for abuse of discretion. Moreland v. State, 356 Ga.App. 452, 454 (1) (847 S.E.2d 641) (2020). The admissibility of lay witness opinion testimony is governed by OCGA § 24-7-701, which provides, in relevant part:

(a) If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are:

(1) Rationally based on the perception of the witness;

(2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and

(3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24-7-702[, addressing expert opinion testimony].

Under this statute, "if the facts are given on which opinions are based, laymen are competent to give opinions on a person's mental condition." Moreland, 356 Ga.App. at 454 (1) (citation and punctuation omitted); see also generally Dix v. State, 238 Ga. 209, 213 (2) (232 S.E.2d 47) (1977) (observing that the Supreme Court of Georgia "has repeatedly held that a person's state of mind or mental condition is properly the subject of opinion testimony and that after narrating the facts and circumstances upon which his conclusion is based, a nonexpert witness may express his opinion as to the state of mind or mental condition of another").^[1]

Here, before the trial court, Barrett sought to admit only his own testimony as to his "mental condition," past competency, and current medications. Consequently, his claims on appeal regarding testimony from other potential witnesses (including his mother) about these topics - issues on which he did not seek rulings from the trial court - present nothing for us to review. See Jackson v. State, 252 Ga.App. 16, 16-17 (2) (555 S.E.2d 240) (2001) ("Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.") (citation and punctuation omitted).

Because Barrett necessarily would have a proper basis to give an opinion of his own mental condition, the trial court erred when it prohibited him from providing any such testimony. See OCGA § 24-7-701 (a) (1); see also generally Moreland, 356 Ga.App. at 454 (1) (concluding that the trial court properly admitted testimony from the brother of a sexual assault victim to the effect that the victim "had the mindset of maybe a ten-year-old child") (punctuation omitted); compare Dix, 238 Ga. at 213 (2) (holding that the trial court properly admitted a deputy sheriff's testimony that "the defendant was 'putting on an act' by feigning grief"), and Currelley v. State, 145 Ga.App. 29, 30 (3) (243 S.E.2d 307) (1978) (holding that the trial court properly allowed a social worker who interviewed the defendant to state an opinion that the defendant was not psychotic), with Leonard v. State, 157 Ga.App. 37, 38-39 (1) (276 S.E.2d 94) (1981) (physical precedent only) (concluding that the trial court erred when it "refuse[d] to permit the defense to question two of the state's witnesses as to their opinion of the sanity of the defendant, based on the actions and utterances of the defendant that they had just related to the court").

However, Barrett cannot establish prejudice because he did not proffer to the trial court the substance of any potential testimony that was excluded by the court's ruling.^[2] See Whitelock v. State, 349 Ga.App. 28, 35 (1) (825 S.E.2d 426) (2019) (absent "a proffer or offer of a definite sort" of evidence excluded by a trial court, an appellant cannot establish that the excluded evidence would have been favorable to his defense, "so that his defense was prejudiced by the exclusion thereof") (citation and punctuation omitted); Sherls v. State, 272 Ga.App. 152, 154 (2) (611 S.E.2d 780) (2005) (an appellant cannot establish reversible error in the exclusion of evidence he did not proffer to the trial court). Absent such a proffer, there is no basis for this Court to conclude that Barrett was harmed by the exclusion of his potential testimony. See Whitelock, 349 Ga.App. at 35 (1); Sherls, 272 Ga.App. at 154 (2); accord Stack-Thorpe v. State, 270 Ga.App. 796, 802 (4) (b) (608 S.E.2d 289) (2004) (absent a proffer of evidence excluded by the trial court, the ruling is not a ground for reversal); see also OCGA § 24-1-103 (a) ("Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected ...."); Butler v. State, 363 Ga.App. 753, 766-767 (9) (871 S.E.2d 902) (2022) ("An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.") (citation and punctuation omitted). Barrett's challenge in this regard thus presents no basis for reversal.^[3]

2. Immediately after the incident, the victim told his mother only that Barrett hit him several times. The victim's mother reported the allegations to law enforcement, but Barrett was not arrested at that time. The victim first disclosed the sexual abuse to his mother later that day or the next day. During the mother's testimony about the disclosure, she stated, "And I said [to the victim], if we called the police again would you be able to tell them the same thing you...