Hong v. State
| Decision Date | 23 January 2023 |
| Docket Number | A22A1268 |
| Parties | HONG v. THE STATE. |
| Court | United States Court of Appeals (Georgia) |
A jury convicted Shenghua Hong of both the rape and aggravated stalking of a woman with whom he previously had a romantic relationship. Hong now appeals, raising several claims of error, including that: (1) the trial court erred in excluding good character evidence from his wife about his non-violent sexual nature; (2) there was insufficient evidence that Hong committed aggravated stalking because the temporary protective order which prevented him from contacting the victim was not properly translated for him; (3) the trial court violated the continuing witness rule; (4) the trial court failed to properly rebuke the prosecutor after she made a comment on the strength of Hong's case during closing argument; and (5) he received ineffective assistance of counsel in that his trial counsel failed to obtain a helpful rebuttal expert and failed to impeach the victim with evidence of bank fraud. For the reasons that follow, we affirm.
On appeal of a conviction based on a jury verdict we should examine the evidence in a light most favorable to support that verdict. We resolve all conflicts in favor of the verdict. It is the duty of this court to sustain the verdict if we should find when viewing the evidence in a light most favorable to the verdict that a rational trier of fact could find the defendant guilty beyond a reasonable doubt.
(Citation omitted.) Chadwick v. State, 360 Ga.App 491 (861 S.E.2d 612) (2021).
So viewed, the evidence shows that Hong and the victim met through an online dating site in China and began dating in 2014. Eventually, the victim moved to the United States and Hong promised to marry her. The couple lived together in Forsyth County for two months in 2016. After moving to the United States, the victim learned that Hong maintained a romantic relationship with a different woman, who was the mother of his child. Ultimately, Hong moved out of the victim's home when he decided to marry the mother of his child instead of the victim. After Hong made his decision the victim no longer wanted to be romantically involved with him, but Hong continued to contact her. Hong asked the victim if he could come see her, but she declined.
Despite the victim expressing no desire to see Hong, he showed up at an English-language course the victim attended regularly. After the class, the victim went home and made herself lunch. Hong came over to her house uninvited, claiming he was there to pick up some clothes he left behind after moving out. Hong then hugged the victim from behind and attempted to kiss her. He told the victim he loved her, but she told him to leave. Hong then held the victim from the front as she struggled and told him to stop. Hong carried the victim to her bedroom, threw her on her bed, grabbed her hands, and pressed his body on top of her. The victim struggled and cried while Hong took off her clothes. Hong kissed the victim's breasts and forced his penis into her vagina and raped her until he ejaculated. When he finished, Hong told the victim that he did not rape her and he left. During the struggle, a lamp in the victim's bedroom was knocked over, the belt loop of her pants was broken, and her bra was torn.
After Hong left, the victim got dressed and called 911, as well as her neighbor, to report the rape. When the victim spoke to her neighbor she was crying and her voice was shaking. The victim does not speak English, but the police dispatched an officer who is fluent in Mandarin Chinese who took the victim's statement. When the victim spoke to the officer she appeared to have been recently crying and she appeared nervous. The officer and the neighbor observed scratch marks or redness on the victim.
The police officer who spoke Mandarin Chinese accompanied the victim to the hospital, where he translated on behalf of the victim. The victim met with a sexual assault nurse examiner ("SANE nurse"), who performed an examination of the victim. The victim was tearful. The SANE nurse witnessed the following injuries: abrasions on the victim's collarbone, her left arm, and her left breast; bruises on the victim's hip and shoulder; redness to the left side of the opening of the victim's vagina; and an abrasion on the victim's cervix. The SANE nurse testified that the abrasion on the cervix indicates a blunt or pounding type of force, which could happen with rape or rough consensual sex. She stated that she would not expect to see such an injury just because a woman had sexual intercourse. She testified that the redness she saw was indicative of no lubrication, either from a store-bought product or the victim's natural lubrication. She stated that a woman's body produces a natural lubrication when she is interested in sex.
At the hospital, some samples were collected from the victim and tested for DNA. A vaginal cervical swab had DNA from two people - the victim and Hong. A sample from one of her breasts contained DNA from Hong as well as a sample that could not be identified. The sample from the other breast had Hong's DNA as well, but did not contain an unknown DNA sample. The swab from the victim's lip also had Hong's DNA present. The victim's labia swab contained a sample from Hong, and two other DNA profiles that could not be identified due to the nature of the sample obtained.
The same night as the rape, Hong texted the victim, The day following the rape, the victim obtained an ex-parte temporary restraining order against Hong. This TPO prohibited Hong from contacting the victim, including over the phone or via text. The day after the TPO was entered, an officer served Hong with the TPO when Hong was with his wife. This officer did not speak Mandarin Chinese, but he read the contents of the TPO to Hong's wife, who then translated to Hong. Hong's wife communicated well in English with this officer.
Despite being served with the TPO, Hong contacted the victim numerous times.[1] In one text message he said, In another text message he stated, In response to reviewing the contents of the victim's personal statement containing rape allegations that she submitted to obtain the TPO, Hong texted her, He also texted her,
Hong was charged with rape and aggravated stalking. He testified in his own defense that the sex between him and the victim was consensual. He admitted having intercourse to the point of ejaculation and that he kissed the victim's lips and breasts. The jury convicted Hong of both charges. The trial court denied Hong's motion for new trial as amended, and Hong now appeals.
1. Hong first alleges that the trial court erred in excluding good character witness testimony from his wife concerning his non-violent sexual nature. We find no reversible error.
OCGA § 24-4-405.
Here, prior to trial of the case, the State filed a motion in limine to prohibit "any character witness testimony regarding how the defendant treats other women or treating other women appropriately for the purposes of proving that he is sexually moral and appropriate." Hong wished to have his wife testify on his behalf that he had never been sexually forceful in the past and that the behavior alleged by the victim "would have been a complete and total aberration." The trial court granted the State's motion, finding that sexual offenses do not happen in public, so other people cannot obtain an accurate opinion of someone's reputation in that regard.
Pretermitting whether this evidence should have been admitted, we find that any error in its exclusion was harmless as it likely would not have affected the result of the trial.
Erroneous evidentiary rulings are subject to a harmless error test. For a nonconstitutional ruling like the one at issue here, the test for determining harmless error is whether it is highly probable that the error did not contribute to the verdict. In conducting that analysis, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done.
Allen v. State, 310 Ga. 411, 415 (2) (851 S.E.2d 541) (2020). Here, there was strong evidence of Hong's guilt on the charge of rape, to which his wife's testimony would have pertained. The victim promptly reported the rape, appeared tearful, had visible injuries as well as injuries internally which were consistent with rape, her bedroom was...
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