Grant v. State
| Decision Date | 07 January 1982 |
| Docket Number | No. 62941,62941 |
| Citation | 160 Ga.App. 837,287 S.E.2d 681 |
| Parties | GRANT v. The STATE. |
| Court | Georgia Court of Appeals |
Tommy Chason, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Candiss L. Howard, Asst. Dist. Attys., for appellee.
Franklin Delano Grant appeals his conviction of the offense of rape. Held:
1. The first enumeration of error contends the defendant "was denied his right of confrontation of witnesses, his right to impeach... and the right to present his theory of defense because of the trial court's ruling preventing any evidence of prior sexual activity being presented." Counsel for the defendant was cross-examining the complaining witness and asked her if it was true that she told her mother "the person that raped [her] gave [her] gonorrhea." She replied that it was true. Counsel then asked: "Isn't it true that at the time you were raped you had gonorrhea?" The state objected and was sustained. The court instructed counsel that this was improper questioning. Counsel for the defendant admitted: "I'm familiar with the law, 38-202.1, which prohibits any mention of a victim's prior sexual activities except to prove consent." However, counsel argued he was not using such questioning to show "prior sexual conduct on the part of the victim... it goes toward our theory of defense." The defendant's theory of defense was that (1) the victim said the man who raped her gave her gonorrhea, (2) the defendant did not have gonorrhea, therefore (3) the defendant was not the man who raped her.
We find no merit to the argument of the defendant. Admissibility of past sexual behavior of the complaining witness is restricted by statute to two conditions: (1) such past sexual behavior involved the defendant, or (2) such evidence supports an inference the defendant reasonably believed the complaining witness would have consented to his actions. Code Ann. § 38-202.1 (Ga.L.1976, p. 741). Such exceptions are exclusive and neither was met under the evidence in this case. Lamar v. State, 243 Ga. 401(2), 254 S.E.2d 353. The trial court did not err in denying defendant's counsel permission to pursue this line of questioning in open court.
2. The state presented the testimony of two women who identified the defendant as the person who raped them previous to the offense alleged in this case. One victim, Miss K. T. testified she had known the defendant prior to the time he raped her. The other victim, Miss J. B. stated she had been raped by the defendant on January 1, 1979. She had met him previously at a neighborhood store when he claimed to be an artist and wanted to paint her portrait. J. B. had given him her phone number but when he called she told him she had changed her mind. She was awakened during the early morning hours of January 1 by a man attempting to undress her. She fought with him for an extended period of time to the extent of breaking a mirror over his head, but ultimately he accomplished his purpose. After he started to leave she turned on the light and saw his face briefly. He shielded his face and went into the kitchen and left by the back door. About a half hour later there was a knock at her door and she asked who it was. The person said: She found the wallet and it contained a driver's license with the name of Franklin Grant. She could see through her door and compared the picture on the driver's license with the man at the door. They were the same person. She told him she couldn't find his wallet and called the police. The defendant departed before the police arrived. The wallet and its contents were introduced in evidence. The defendant identified it as his wallet but stated he had misplaced it New Year's Eve. He denied that he had been to her room that night but had spent the night in the same house with a friend. He also denied that he had gone back to her room to recover his wallet.
Miss J. B. gave the wallet to Detective Goolsby and she testified that the wallet contained a driver's license, a one dollar bill, an insurance card, a calling card with the victim's name and telephone number and "several other calling cards and telephone numbers." Detective Goolsby stated that the wallet had been in the custody of the chief investigator since January 1st of 1979. The wallet and its contents were offered in evidence at the close of the state's case--along with the other state exhibits. A general objection was made by the defendant. When the items were to be given to the jury, defendant discovered that "the wallet has certain things in it that I was not aware of including something called a new super sex french tickler..." He objected to this item going to the jury as it was not listed in the inventory taken by the detective. The judge stated that he would "let it go out like it was admitted." Defendant argues that the item was prejudicial because it "tends to blacken his character and inflame the jury against him..."
We find no reversible error. Counsel for the defendant is the person who found the condom in the defendant's wallet. The wallet was identified by the defendant as his and had been found at the scene of a rape. The defendant was identified as the perpetrator of that rape. The wallet was shown to have been in possession of the police since being found at the rape scene and was admitted in evidence without any specific objection to this item. There was no evidence of tampering. The state need not negative every possibility of tampering but only reasonable assurance of identity, and when there is only a bare possibility of tampering it is proper to admit the evidence and let what doubt remains go to the weight to be accorded the evidence. Anderson v. State, 247 Ga. 397, 399, 276 S.E.2d 603. Possession of such an item does have a tendency to show bent of mind toward sexual conduct. Felker v. State, 144 Ga.App. 458, 459, 241 S.E.2d 576; Layne v. State, 147 Ga.App. 511, 249 S.E.2d 324. The rule in Georgia is that if admissibility of such evidence is doubtful, the evidence should be admitted and its weight left to the jury. Patterson v. State, 233 Ga. 724, 725, 213 S.E.2d 612. Furthermore, even if the item should have been excluded, in view of the testimony of the three rape victims identifying the defendant, it is highly probable that this collateral issue to a rape not charged did not contribute to the conviction in this case. Johnson v. State, 238 Ga. 59, 230 S.E.2d 869; Hodge v. State, 239 Ga. 612(2), 238 S.E.2d 404.
3. The defendant's wallet contained a calling card with the name and phone number of the rape victim--J. B. J. B. testified that she had met the defendant in a neighborhood store and had given him the number when defendant claimed to be an artist and wanted to paint her portrait. When he called she had changed her mind because she called the store that he said he managed and they advised her he did not work there at the present time and had never been the manager. The defendant testified he met J. B. on New Year's Eve--the night this incident occurred but had never talked to her before and had not met her at a neighborhood store nor received her telephone number from her, but had obtained it from his friend that lived in the same building with her. He also denied that he had ever called J. B. on the telephone. He admitted that he had her telephone number in his wallet on two cards and one was in a different handwriting. He was then cross-examined about two other phone numbers recorded with women's names in his wallet. He did not recall who they were. The district attorney asked: "Is that another girl that you visited at night uninvited?" The defendant objected and moved for a mistrial. The court instructed the jury that the question asked was not evidence and advised the district attorney not to place the defendant's character in issue. Thereafter, the district attorney questioned the defendant about two other names in his wallet. One turned out to be his "ex-wife."
The question was improper. The innuendo...
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