Cook v. State, A98A0674.
| Decision Date | 29 May 1998 |
| Docket Number | No. A98A0674.,A98A0674. |
| Citation | 503 S.E.2d 40,232 Ga. App. 796 |
| Parties | COOK v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Steven E. Phillips, Atlanta, for appellant.
Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.
A jury found Barry Craig Cook guilty of rape. Cook appeals from the judgment of conviction and denial of his motion for new trial. We affirm, for the following reasons:
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Miller v. State, 230 Ga.App. 73, 495 S.E.2d 329 (1997). So viewed, the evidence in this case shows that the victim testified that she awoke to find Cook, her estranged ex-boyfriend, standing in her bedroom. Cook attempted to talk to the victim about reconciling their relationship, but the victim refused. A struggle then ensued. Cook forcibly removed the victim's clothing, dragged her downstairs, threw her onto a bed and had sexual intercourse with her. The victim testified that she did not consent to sexual intercourse. After she was raped, the victim called her sister and told her to call the police. The victim's sister called 911 while en route to the house where the rape occurred. The 911 operator in turn called the house and talked to the victim.
Investigator Angela Fedd responded to the crime scene and obtained a statement from the victim. The victim told Officer Fedd that Cook broke into her house, entered her bedroom and raped her.
1. Cook contends that the trial court erred in excluding evidence about the victim's proposed abortion because this evidence was the basis for the argument he had with the victim and consequently was relevant to explain why he went to the victim's home, what caused the argument, and the reason Cook consoled the victim. Cook further contends that the emotional nature of the discussion about the victim's plan to have an abortion was necessary to give the jury a picture of the highly emotional confrontation between the victim and the defendant which led to the consensual intercourse. Cook argues the court's ruling "eviscerated" his sole defense.
At trial, Cook's trial counsel objected to Fedd's reference to Cook hitting the victim previously, arguing that the statement placed Cook's character into evidence. The trial court found the reference was made inadvertently, and denied Cook's motion for mistrial. However, the court gave the jury a curative instruction, but avoided repeating the statement that Cook hit the victim previously. At the close of the evidence, the court considered Cook's proffered testimony that the victim told him that she was pregnant and had decided to have an abortion. Cook further stated that he went to the victim's home to confront her about this decision, an argument ensued, and during the course of consoling the victim, they engaged in consensual intercourse. The trial court considered Cook's proffer but did not allow its admission.
Owens v. State, 248 Ga. 629, 630, 284 S.E.2d 408 (1981). However, irrelevant matters which improperly tend to reflect adversely on the victim's character, which destroy a juror's impartiality, or which only excite the passions of the jurors should not be admitted. Kennard v. State, 180 Ga.App. 522(1), 349 S.E.2d 470 (1986). See Teasley v. State, 177 Ga.App. 554, 555(2), 340 S.E.2d 32 (1986).
Cook acknowledges that the evidence complained of "is extremely emotional and divisive, and persons with divergent views often become heated over this subject." The State agrees, stating that "abortion is one of the most inflammatory issues of our time."
Here, the trial court allowed Cook to present evidence of the past sexual relationship between the parties pursuant to the Rape Shield Statute, OCGA § 24-2-3. The trial court also allowed evidence of the argument which preceded the rape, but excluded evidence of the substance of that argument, i.e., the victim's decision to have an abortion. The trial court reasoned that "[a]n argument is an argument over whatever...." Contrary to Cook's assertion that he was denied an opportunity to present evidence of his sole defense, the trial court did not prohibit him from explaining his presence in the victim's home or his subsequent act to console the victim, however the court did restrict his explanation from making any...
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