Logan v. State

• Decision Date: 18 March 1994
• Docket Number: No. A93A1800,A93A1800
• Citation: 442 S.E.2d 883,212 Ga.App. 734
• Parties: LOGAN v. The STATE.
• Court: Georgia Court of Appeals

Page 883

442 S.E.2d 883

212 Ga.App. 734

LOGAN v. The STATE.

No. A93A1800.

Court of Appeals of Georgia.

March 18, 1994.

Reconsideration Denied April 1, 1994.

Certiorari Denied July 1, 1994.

H. Bradford Morris, Jr., Gainesville, for appellant.

Lydia Sartain, Dist. Atty., Lee Darragh, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of rape, aggravated sodomy, kidnapping with bodily injury, aggravated assault, and simple battery.

At trial, the victim testified that in the early morning hours of December 17, 1988, she was working as a taxi cab driver when defendant approached her for a ride; that she drove to several sites in compliance with defendant's requests (purportedly to locate a friend) and that defendant then pulled a knife, instructed her to drive to a remote area and forced her to engage in sodomy and intercourse. Defendant testified that he engaged in consensual sex with the victim pursuant to her solicitation; that he ejaculated during copulation over the victim's objection; that he gave the victim $20 after the encounter and that the victim then gave him a card with her name and number for future reference.

This appeal followed the denial of defendant's motion for new trial. Held:

1. In his first four enumerations of error, defendant contends the trial court erred in applying the Rape Shield Statute, OCGA § 24-2-3, to preclude him from testifying as to certain statements the victim uttered shortly before the incident which forms the basis of the crimes charged.

Prior to trial, the trial court held an in camera hearing pursuant to OCGA § 24-2-3 where defense counsel stated that he intended to produce testimony that the victim engaged in prostitution before the alleged rape. The trial court, noting that defendant had no knowledge of this alleged act of prostitution by the victim, ruled that such evidence was inadmissible under the Rape Shield Statute as amended July 1, 1989, or under the statute as it existed prior to the amendment. The trial court held a second in camera hearing immediately before the trial wherein defendant proposed to testify concerning statements the victim allegedly uttered in his presence concerning her past sexual conduct. Defendant argued that these statements led him to believe that the victim consented to sex. Specifically, defendant sought to introduce that the victim told him that she knew all the black men in the community because of her occupation; that she lived with a number of black men; that her husband left her because she had been involved with these men; that she had three children by black men; that "she had been corresponding with the black guys and that they was abusing her in ways and that she wasn't getting what she deserved"; that she wasn't making much money on her job and that she did not want to get pregnant anymore.

Noting that some of the proffered testimony did relate to the victim's past sexual behavior, the trial court ruled that any statements which the victim uttered concerning her marital history, general reputation of promiscuity, chasteness, or sexual mores contrary to community standards were excluded by the Rape Shield Statute. Specifically, the trial court ruled that the victim's alleged statement that she did not want to have any more children was inadmissible because it was proof of sexual conduct unrelated to the crimes charged. However, the trial court ruled that the victim's alleged statement that she did not want to get pregnant was admissible. It appears from a review of the record that the only aspects of defendant's proffered testimony that he did not subsequently testify to before the jury were that the victim had been involved with black men, that she had children by black men and that her husband had left her.

(a) Relying on Villafranco v. State, 252 Ga. 188(1), 313 S.E.2d 469, defendant first argues that the victim's statements to him are not evidence of past sexual behavior within the purview of the Rape Shield Statute but are evidence of both her state of mind at the time of the alleged rape and her motive to fabricate a rape charge against him because he was another black male who had abused her by virtue of ejaculating inside of her after she asked him not to and by only paying her $20. This contention is without merit.

Although the victim's statements to defendant about her having had sexual relations with black men and having had children by these men would otherwise be admissible as part of the res gestae, it is well settled that the "Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule." Veal v. State, 191 Ga.App. 445, 447(4), 382 S.E.2d 131; Johnson v. State, 146 Ga.App. 277, 281, 246 S.E.2d 363. Defendant's reliance on Villafranco, 252 Ga. 188, 193(1), 313 S.E.2d 469, supra, is misplaced because in that case the victim's statement that she wanted "to get some nookey" did not refer to past sexual conduct but to the victim's present state of mind. Accordingly, the Rape Shield Statute applies to the proffered testimony.

(b) Next, defendant contends the trial court erred in applying the Rape Shield Statute as amended July 1, 1989, because he committed the alleged offense in December 1988. Defendant argues that the amendment to subsection (b) of the statute violates the ex post facto clause because it deprives him of the substantive right to introduce evidence that was admissible under the prior version of subsection (b).

Prior to July 1, 1989, the Rape Shield Statute excluded evidence of past sexual behavior of the complaining witness unless the court "finds that the past sexual behavior directly involved the participation of the accused or finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of...." (Emphasis supplied). OCGA § 24-2-3(b). The 1989 amendment substituted the word "and" for "or" such that in order for evidence of past sexual behavior to be introduced under subsection (b), it must directly involve the accused and support an inference that he reasonably believed the complaining witness consented.

Generally, statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. OCGA § 1-3-5. However, where a statute governs only procedure, including the rules of evidence, it is to be given retroactive effect. Polito v. Holland, 258 Ga. 54(2), 365 S.E.2d 273. The rule with respect to the ex post facto clause is that any law enacted after the offense was committed which inflicts a greater punishment or alters the situation of the accused is ex post facto. Todd v. State, 228 Ga. 746, 187 S.E.2d 831. The Georgia Supreme Court addressed a similar issue in Todd wherein the defendant challenged as void for retroactivity a change in the law which allowed evidence of his former crimes committed before the effective date of the statute to be introduced at a sentencing hearing after the effective date of the statute. The court found Todd was not deprived of a substantial right, quoting from Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 924, 43 L.Ed. 204: "We cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced ... at the time the offense was committed." (Punctuation omitted.) Todd v. State, 228 Ga. 746, 751, 187 S.E.2d 831, supra. Given that the case sub judice involves the converse situation, i.e., evidence which may have been admissible at the time of the offense is no longer admissible, it appears defendant was not deprived of a substantial right.

In any event, we agree with the trial court that the amended statute was not ex post facto as to the defendant because the evidence he sought to introduce was not admissible under the prior version of subsection (b). Defendant essentially sought to introduce statements the victim made to him about being with other men and having children with such men as evidence that defendant believed the victim consented to have sex with him. This evidence did not directly involve the defendant nor do we view it as a circumstance which would reasonably support defendant's purported view that the victim consented to have sex with him. See former OCGA § 24-2-3(b). In fact, it is against just such reasoning that Rape Shield laws were enacted. See Johnson v. State, 146 Ga.App. 277, 278(1), 279, 246 S.E.2d 363 supra. We find no merit in this enumeration.

(c) Defendant next argues that the trial court erred in ruling his testimony inadmissible under the amended statute because the testimony is admissible under subsection (c)(2) of the amended statute. ¹

Subsection (c) of the Rape Shield Statute was amended in 1989 to provide an exception for the admission of evidence of past sexual behavior if the court finds that the evidence "is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence...." OCGA § 24-2-3(c)(2). As noted above, the essence of defendant's argument appears to be that the victim's statements to him that she had been with black men before and had children by such men supports the conclusion that he reasonably believed the victim consented to have sex with him. The trial court ruled this interpretation was not a reasonable belief but an inappropriate implication that "if she did it once, she did it again." See Johnson v. State, 146 Ga.App. 277, 278(1), 279, 246 S.E.2d 363, supra. We likewise cannot say that this testimony substantially supports the conclusion that defendant reasonably believed...