Pollard v. State, No. A02A1723.

• Decision Date: 26 March 2003
• Docket Number: No. A02A1723.
• Citation: 580 S.E.2d 337,260 Ga. App. 540
• Parties: POLLARD v. The STATE.
• Court: Georgia Court of Appeals

580 S.E.2d 337

260 Ga. App. 540

POLLARD v. The STATE.

No. A02A1723.

Court of Appeals of Georgia.

March 26, 2003.

Jennifer E. Hildebrand, for appellant.

Herbert E. Franklin, Jr., Dist Atty., Michael J. Moeller, Asst. Dist. Attorney, for appellee. BARNES, Judge.

Henry Pollard was convicted of rape, statutory rape, aggravated sodomy, aggravated child molestation, and six counts of child molestation. The trial court merged the rape, statutory rape, and one of the child molestation counts¹ and also merged the aggravated sodomy and aggravated child molestation counts.² Pollard and his wife were, for varying periods, foster parents of the three victims, ages five, six and seven. Following his conviction, Pollard filed a motion for new trial, which he later amended. The trial court granted the motion on Count 6, the aggravated sodomy charge, and denied the motion on all other charges. Pollard appeals this order, asserting numerous errors, and we affirm.

1. Pollard maintains that the trial court erred in excluding evidence of the victims' prior molestation. He argues that evidence that the victims had been molested before is relevant to his guilt or innocence and is thereby not subject to the provisions of OCGA § 24-2-3.

Generally, evidence of a prior molestation or previous sexual activity on the part of the victim is not admissible in a child molestation case to show either the victim's reputation for nonchastity or preoccupation with sex. This type of evidence may be admissible for the limited purpose of establishing other possible causes for behavioral symptoms typical of the child sexual abuse accommodation syndrome or to explain certain medical testimony introduced at trial.

(Citations omitted.) Tidwell v. State, 219 Ga.App. 233, 237-238(5), 464 S.E.2d 834 (1995). Evidence of a prior molestation is also not admissible to show that the victim was "confused." Blackwell v. State, 229 Ga.App. 452, 454(2), 494 S.E.2d 269 (1997).

Here, although Pollard argues that the trial court denied his motion to admit evidence of prior molestations, we cannot find evidence of the denial of such motion in the record. Pollard maintains that the motion was denied during an unrecorded bench conference, but the burden remains on the defendant to ensure that the record includes the issue upon which he or she seeks review as well as the lower court's ruling on such issue. Walton v. State, 261 Ga. 392, 394(2), n. 5, 405 S.E.2d 29 (1991).

Our review of the record shows that before trial, a hearing was held on a motion in limine. Pollard stated during the hearing that "our indication is that two of the three victims were previously molested." He maintained that evidence of the prior molestation should be admitted as a possible explanation for the irregular findings in the victims' medical exams. The trial court reserved ruling on the issue, but agreed that the prior molestations could be admissible "depending on how the case is presented." It instructed the State to "be prepared to deal with that I'll probably let that in if she meets the threshold." There is no other discussion of the issue in the record, nor any indication that Pollard asked the trial court for a final ruling on the admissibility of the prior molestations.

"[W]here the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm." (Punctuation and footnote omitted.) Williams v. State, 253 Ga.App. 10, 557 S.E.2d 473 (2001).

2. It is well settled that in no circumstances may a witness's credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. The credibility of a witness is a matter exclusively for determination by the jury. OCGA § 24-9-80. "Testimony that another witness believes the victim impermissibly bolsters the credibility of the victim." Buice v. State, 239 Ga.App. 52, 55(2), 520 S.E.2d 258 (1999). Here Pollard complains that three witnesses were allowed to give impermissible testimony regarding the truthfulness of the witnesses. After review, we find this argument without merit.

The nurse who examined the victims was asked, regarding one of the victims, if she received "any indications of deception from her." Pollard did not object, and the nurse answered, "Well, I'm not really sure how to answer that because you never know how people are deceiving you, but just going back to the literature, most children tell the truth and that is usually what we base our exam on." At that point, Pollard objected, and the trial court sustained the objection, directing the State to "move on to another area."

Pollard also complains about the testimony of a foster parent to whom one of the victims made an outcry. The State asked the witness, "Were [the victim's] statements to you made under circumstances where you found them to be reliable and believable?" The witness answered, "yes." Pollard objected and asked for curative instructions. The trial court sustained the objection and instructed the jury to disregard the witness's response.

The last instance occurred during the testimony of another foster child to whom another of the victims outcried. The State asked her if "the statement that [the victim] made were they made under circumstances where you believed them to be trustworthy, or believable or truthful?" She responded, "yes." The State continued with the direct examination without any objection from Pollard.

We find that in the two instances that Pollard did object to the questioning, the trial court properly sustained the objections and gave cautionary directions to the State. Further, Pollard's subsequent acquiescence to the trial court's actions deprives him of the right to complain further. Whisnant v. State, 178 Ga.App. 742, 744(2), 344 S.E.2d 536 (1986). Pollard's failure to object to the third instance of alleged impermissible testimony precludes our review because a defendant must object to alleged improprieties when they occur to allow the trial court the opportunity to take remedial action. Ward v. State, 238 Ga.App. 540, 542-543(2), 519 S.E.2d 304 (1999).

While Pollard complains about the cumulative effect of this testimony, this state does not follow a "cumulative error" rule of prejudice; any error of record must stand or fall on its own merits and is not aided or aggravated by the accumulative effect of other claims of error. See Forehand v. State, 267 Ga. 254, 256(7), 477 S.E.2d 560 (1996).

3. In his next enumeration of error, Pollard asserts that the evidence was insufficient to sustain his conviction for the rape charge and aggravated sodomy. While acknowledging that the trial court granted a new trial on the aggravated sodomy charge, he contends that he should be acquitted because the State failed to prove beyond a reasonable doubt the element of force required for these convictions. We do not agree.

Regarding the rape conviction,

[u]nder OCGA § 16-6-1(a), a person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. In State v. Collins, 270 Ga. 42, 508 S.E.2d 390 (1998), ... the Supreme Court of Georgia recently reiterated that the terms "forcibly" and "against her will" are two separate elements of proving rape. The term "against her will" means without consent; the term "forcibly" means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim's age. However, the quantum of evidence to prove force against a child is minimal, since physical force is not required. Intimidation may substitute for force. Further, force may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is force, and may be shown by the prosecutrix'[s] state of mind from her prior experience with appellant and subjective apprehension of danger from him.

(Citations and punctuation omitted; emphasis omitted and supplied.) House v. State, 236 Ga.App. 405, 408(1), 512 S.E.2d 287 (1999).

Pollard was charged with the rape of M.B.C., who was five years old at the time. The record reflects that M.B.C. said that Pollard "put his thing in her and it hurt." She also said that she was afraid to tell her secret because Pollard told her if she did she would not see her family again. This was sufficient evidence from which the jury could find the element of force necessary to support the conviction. Roberts v. State, 242 Ga.App.621, 624(1)(b), 530 S.E.2d 535 (2000).

Pollard also maintains that the State failed to prove the element of force in the aggravated sodomy conviction. The trial court, however, merged this conviction with the aggravated child molestation conviction. Thus, pretermitting whether the State proved the element of force required for the aggravated sodomy conviction, we find no reversible error.

4. Pollard also contends that the trial court erred in denying his motion for an in camera inspection of the victims' Department of Family and Children Services (DFACS) records. Pollard filed a motion for the issuance of a subpoena to obtain the DFACS records, asking that the department produce the records for the accused or "in the alternative for this court's in camera inspection." The trial court granted the motion in part, directing DFACS to provide the records to the State and instructing the State to "review said records for possible exculpatory materials to be served on the Defendant."

Before trial, at the hearing on the motions in limine, Pollard renewed his...