Burns v. State

• Decision Date: 19 April 2018
• Docket Number: A18A0227
• Citation: 345 Ga.App. 822,813 S.E.2d 425
• Court: Georgia Court of Appeals
• Parties: BURNS v. The STATE.

345 Ga.App. 822

813 S.E.2d 425

BURNS

v.The STATE.

A18A0227

Court of Appeals of Georgia.

April 19, 2018

Reconsideration Denied May 21, 2018

Certiorari Granted November 15, 2018

Grisham & Poole, Scott T. Poole, Michael A. Ray, for appellant.

Shannon G. Wallace, District Attorney, Randall J. Ivey, Cliff Head, Assistant District Attorneys, for appellee.

Per Curiam.

This appeal arose from a granted application for interlocutory review wherein James Phillips Burns challenged the trial court's grant of the State's motion in limine to exclude evidence that the alleged victim had previously made a false accusation of sexual abuse against another individual.Because we conclude that the trial court erred, we reverse the trial court's order granting the motion in limine and remand the case.

The record shows that in December 2015, Burns's wife discovered that her daughter, Burns's stepdaughter, had sent a friend a one-paragraph Twitter message about a sexual incident that she had with Burns the previous July.Toward the end of the paragraph, the victim stated, "And my brother's best friend tried to rape me."Burns's wife contacted law enforcement, and an investigation ensued.When asked about the time her brother's best friend tried to rape her during a forensic interview, the stepdaughter replied, "Oh, I just made that up."She explained that she did not know why she said it and suspected that she was high on marijuana at the time.When the police interviewed Burns's wife, she also stated that her daughter told her she just made up the story.Burns was charged with committing aggravated sexual battery, aggravated sodomy, and incest upon his stepdaughter.

The State filed a motion in limine, based on the Rape Shield Statute.During the hearing on the motion, defense counsel agreed that evidence of the victim's past sexual behavior was inadmissible but indicated that he intended to introduce evidence that the stepdaughter had admittedly falsely accused another person of sexual misconduct.Citing Smith v. State , 259 Ga. 135, 377 S.E.2d 158(1989), defense counsel argued that such evidence did not implicate the Rape Shield Statute and was admissible as pertaining to the stepdaughter's credibility and to Burns's right to confront her as a witness called against him.

After the hearing, the trial court concluded that the prior accusation is inadmissible under OCGA § 24-4-403.Specifically, the court ruled:

As a statement made and disavowed, it is a false statement.The Court must, however, further evaluate the statement under the appropriate rules of evidence.The statement the defendant seeks to admit amounts to an aside in [a] much longer paragraph and was immediately disavowed by the victim upon questioning.The statement sought to be introduced lacked specificity does not have significant probative value for a fact finder otherwise charged with determining whether the claims of the victim against the defendant are true.Thus, the Court finds that the probative value of the statement in question is substantially outweighed by the danger of unfair prejudice and confusion of the issues and is inadmissible under OCGA § 24-4-403.

(Punctuation and footnote omitted.)Burns filed an application for interlocutory appeal, which we granted, and this appeal followed.Burns challenges the trial court's conclusion that the prior false allegation is inadmissible under OCGA § 24-4-403, insisting that its probative value is not substantially outweighed by the danger of unfair prejudice or confusion of the issues.He also contends that the allegation is admissible under OCGA § 24-6-608.

1.At the outset, we point out that the parties correctly concluded that evidence of the admittedly false accusation is not barred by the Rape Shield Statute.That Code section pertinently provides that, in prosecutions for certain sexual offenses, "evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses."OCGA § 24-4-412 (a)(emphasis supplied).In Smith v. State , 259 Ga. 135, 377 S.E.2d 158, our Supreme Court concluded that the Rape Shield Statute did not bar evidence of the victim's alleged false allegations of sexual misconduct by persons other than the defendant, finding persuasive the reasoning of other jurisdictions that "[such] evidence does not involve the victim's past sexual conduct but rather the victim's propensity to make false statements regarding sexual misconduct."Id. at 137(1), 377 S.E.2d 158.¹The Court went on to instruct, however, that "before such evidence can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists."Id. at 137-138(1), 377 S.E.2d 158(citation and punctuation omitted).See alsoMorgan v. State , 337 Ga. App. 29, 31 (1), 785 S.E.2d 667(2016).The language set forth in the order² in this case shows that the trial court made the required threshold determination.Accordingly, the contested evidence is not barred by the Rape Shield Statute.

2.Burns asserts as error the trial court's conclusion that the "probative value of the statement in question [was] substantially outweighed by the danger of unfair prejudice and confusion of the issues and is inadmissible under OCGA § 24-4-403."That Code provision does allow for the exclusion of relevant evidence when the probative value of the evidence is substantially outweighed by the concerns referenced by the trial court.Our Supreme Court has explained, however, that OCGA § 24-4-403 should be used "only sparingly" because it permits the exclusion of concededly relevant evidence.Olds v. State , 299 Ga. 65, 70 (2), 786 S.E.2d 633(2016).Furthermore, under the principles recognized in Smith , this exclusionary rule must yield to greater constitutional concerns.There, our Supreme Court considered the State's argument that even if the Rape Shield Statute did not prohibit testimony that the victim had falsely accused other men of sexual misconduct, such evidence was barred by other evidentiary rules (relating to the manner in which a victim's character and general reputation for veracity could be attacked).Smith , 259 Ga. at 137 (1), 377 S.E.2d 158.The Smith Court rejected that argument on constitutional grounds, noting that a majority of the jurisdictions had determined that the evidentiary rules (preventing evidence of a specific act of untruthfulness)"must yield to the defendant's right of confrontation and right to present a full defense."Id.

Burns maintains that because there is no forensic or DNA evidence in this case, his defense will rest largely on the degree to which the factfinder determines that the stepdaughter lacks credibility.It is well settled that the right of confrontation includes allowing the cross-examiner "to impeach, i.e. , discredit, the witness" called against him.Davis v. Alaska , 415 U.S. 308, 316-318, 94 S.Ct. 1105, 39 L.Ed.2d 347(1974)(defense counsel should be permitted "to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness").Here, the trial court excluded evidence of the stepdaughter's false accusation because it...