Pate v. State

Decision Date27 March 2012
Docket NumberNo. A11A1731.,A11A1731.
Citation12 FCDR 1295,726 S.E.2d 691,315 Ga.App. 205
PartiesPATE v. The STATE.
CourtGeorgia Court of Appeals


Mark J. Issa, Jonathon J. Majeske, Ashutosh S. Joshi, appellant.

Daniel J. Porter, Dist. Atty., John A. Warr, Asst. Dist. Atty., for appellee.

DOYLE, Presiding Judge.

After a jury trial, the Gwinnett County Superior Court convicted Brandon Pate of statutory rape,1 aggravated assault with a deadly weapon,2 and possession of a knife during the commission of the felony of statutory rape.3 Pate appeals, arguing that the trial court erred by (1) admitting hearsay testimony; (2) replacing a juror without cause; (3) admitting bad character evidence; (4) violating his Sixth Amendment right to confront the victim about her accusations; (5) closing the courtroom during testimony by two State witnesses; and (6) admitting prejudicial testimony concerning harassment of the victim, which was unrelated to the charged crimes. For the reasons that follow, we affirm.

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; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.[4 Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.5

So viewed, the record establishes that in December 2008, the victim, M.R., reported that two years earlier in late December 2006 or early January 2007, Pate entered her bedroom, demanded sexual intercourse, produced a knife, and threatened to injure M.R.'s father if she refused his demand. M.R.'s friend, Kaila, was a guest at M.R.'s home that night, and she corroborated M.R.'s testimony that Pate possessed a knife and demanded sex. Kaila also testified that she witnessed M.R. and Pate have sexual intercourse that night.

In addition to M.R. and Kaila, the State presented the testimony of Dylan Toves, who testified that M.R. disclosed the sexual assault to him in the fall of 2007, prior to her December 2008 outcry, and Officer T.D. Roach, who initially investigated the outcry M.R. made in December 2008.

The State presented the similar transaction testimony of M.K., who testified that she was dating Pate in 2007, and on April 26 of that year, he came to her house, where she was alone. M.K. testified that Pate began getting rough and forced her to have sex. Although he did not have a weapon, he threatened to kill her father if she told anyone. M.K. did not report the incident to law enforcement, but she later told a friend and then her parents. M.K. testified that she did not know the victim or Kaila prior to her appearance in court that day.

The jury convicted Pate of statutory rape and the related aggravated assault and possession of a knife during the commission of the felony, but acquitted him of rape, two counts of child molestation, two counts of burglary, one count of aggravated assault with the intent to rape, terroristic threats, and two counts of cruelty to children in the third degree. Pate filed a motion for new trial, which he later moved to dismiss. The trial court granted the motion to dismiss, and Pate filed this appeal of his conviction.6

1. Pate first argues that the trial court erred by allowing prior consistent statements made by M.R. to Toves and Officer Roach, which statements amounted to inadmissible hearsay that improperly bolstered M.R.'s testimony.

A witness's prior consistent statement is admissible only where: (1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. A witness's veracity is placed in issue so as to permit the introduction of a prior consistent statement if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. Even then, to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive.7

(a) With regard to Toves's testimony, Pate contends that the trial court erred by allowing him to testify that M.R. made allegations of sexual assault by Pate to Toves in the fall of 2007 because Toves testified before M.R. took the stand, and therefore, M.R.'s veracity had not been challenged at the time Toves testified. Nevertheless, as the Supreme Court has explained,

[a]lthough [M.R.] had not yet testified nor had there been an attack on her credibility when [Toves testified], [M.R.] subsequently did testify to statements with which [Toves's testimony was] consistent.... [Because M.R.'s] credibility was eventually attacked[,] [Toves's testimony] was properly admitted as a prior consistent statement.8

(b) On the other hand, M.R. made her statements to Officer Roach after the alleged fabrication, influence, or motive because they were made after M.R. was accused of possessing narcotics. Therefore, the statements were erroneously admitted, even though M.R.'s veracity was later attacked by Pate when she took the stand.9

Nevertheless, any error in admitting this evidence was harmless.

Generally, hearsay erroneously admitted is harmless error where other legally admissible evidence of the same fact is introduced at trial. But when the hearsay erroneously admitted is the prior consistent statement of a testifying witness ... the error is reversible if it appears likely that the hearsay contributed to the guilty verdict.10

Significantly, the jury acquitted Pate of the most serious sexual offenses as well as the related charges of aggravated assault, burglary, terroristic threats, and cruelty to children. These acquittals establish “that the jury was able to objectively consider the evidence of the charges, despite the improper bolstering....” 11 Accordingly, this enumeration is without merit.

2. Pate next contends that the trial court erred by dismissing a juror without sufficient cause. We disagree.

“Under OCGA § 15–12–172, a trial court is vested with the discretion to discharge a juror and to replace him or her with an alternate juror at any time during the proceedings, as long as the trial court has a sound legal basis to do so.” 12

After a number of witnesses had testified, the defense called witness Hayley Lawrence to the stand, and the juror at issue passed a note to the judge stating that she knew the witness because of an affiliation with her daughter's cheerleading squad. The trial court then removed the jury and allowed the attorneys to voir dire the individual juror as to whether her acquaintance with the witness would affect her ability to deliberate and impartially apply the law to the facts of the case. After the voir dire, the State moved for the court to excuse the juror from service and seat the alternate juror, who had been present at the trial and listened to the testimony presented. The trial court excused the juror, finding that she believed her acquaintance with the witness and with the school (where the defendant, various witnesses, and the juror's son had attended classes) made her very uncomfortable and would affect her ability to deliberate in the case. Although she did agree with defense counsel that she would impartially apply the law to the facts of the case, she also expressed a great deal of unease about being involved in the case because of her ties with the school.

After observing voir dire of the juror in question, the court granted the State's motion to excuse her because it determined that her ability to deliberate would be compromised by her connections to the school community and at least one witness. Although the juror did state that she would make a determination of the verdict based on the facts presented during testimony and the law, the trial court was within its discretion to excuse her based on the totality of the circumstances. “This ruling had a sound basis in that it served the legally relevant purpose of preserving public respect for the integrity of the judicial process.” 13

3. Pate contends that the trial court erred by admitting bad character evidence that was irrelevant to the proceedings. We disagree.

Generally, the ... character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such characterand renders necessary or proper the investigation of such conduct. OCGA § 24–2–2. Whether to admit evidence is a matter resting in the trial court's sound discretion, and evidence that is relevant and material to an issue in the case is not rendered inadmissible because it incidentally places the defendant's character in issue.14

Moreover, [a]ny party, including the party calling the witness, may attack the credibility of a witness.” 15

During the defense's case, Pate called Justin Crutcher, who testified to being Pate's best friend, as a witness. Crutcher testified that he had attended a party with Kaila and overheard her saying that M.R. had fabricated the allegations against Pate and that the attack never occurred. The State then cross-examined Crutcher, and Pate contends that the following line of questioning resulted in the admission of irrelevant bad character evidence of Pate.

THE STATE: Did you ever hear of any allegations of the knife being involved with the alleged rape ... ?

WITNESS: No, sir.

THE STATE: Back in 2007[,] what kind of knife did the Defendant carry?

WITNESS: He never carried a knife.



THE STATE: Did you know the Defendant in May of 2007?

WITNESS: Yes, sir.

THE STATE: And were you with ...

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7 cases
  • Copeland v. State
    • United States
    • Georgia Court of Appeals
    • June 11, 2014
    ...the evidence should be admitted, and its weight left to the determination of the jury.(Citations omitted.) Pate v. State, 315 Ga.App. 205, 213–214(6), 726 S.E.2d 691 (2012). Despite Copeland's characterization to the contrary, the testimony cited in the enumeration does not implicate a spec......
  • Conley v. Pate
    • United States
    • Georgia Supreme Court
    • March 4, 2019
    ...error, but none of the claims upon which the habeas court later granted him relief. The Court of Appeals affirmed in Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691 (2012).In December 2013, Pate filed a petition for a writ of habeas corpus in Washington County, where he is incarcerated. In ......
  • Trim v. Shepard, S16A0960
    • United States
    • Georgia Supreme Court
    • November 21, 2016
    ...with the defendant and said that he would try to do his best to put the relationship out of his mind); Pate v. State, 315 Ga.App. 205, 208–209 (2), 726 S.E.2d 691 (2012) (trial court did not abuse its discretion when it excused a juror who claimed impartiality but expressed discomfort becau......
  • Kidd v. State
    • United States
    • Georgia Supreme Court
    • January 7, 2013
    ...or improper motive are raised during cross-examination.” Duggan v. State, 285 Ga. 363(2), 677 S.E.2d 92 (2009); Pate v. State, 315 Ga.App. 205(1), 726 S.E.2d 691 (2012). For the prior consistent statement to be admissible, it must also predate the alleged fabrication, improper influence, or......
  • Request a trial to view additional results

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