Ray v. State

• Decision Date: 07 March 2018
• Docket Number: A18A0333
• Citation: 812 S.E.2d 97
• Parties: RAY v. THE STATE.
• Court: Georgia Court of Appeals

345 Ga.App. 522

812 S.E.2d 97

RAY

v.THE STATE.

A18A0333

Court of Appeals of Georgia.

March 7, 2018

Reconsideration Denied April 13, 2018

Amanda Gaddis Speights, Scott Thomas Poole, Canton, Benjamin James Huntington, for Appellant.

Cliff Head, Shannon Glover Wallace, for Appellee.

Andrews, Judge.

A jury found James Roy Ray guilty of rape and two counts of sexual battery. The trial court denied Ray’s motion for new trial, and he appeals, challenging several evidentiary rulings and asserting that he received ineffective assistance of counsel at trial. Although we find no merit in many of Ray’s arguments, two of his claims require additional consideration below. Accordingly, we vacate the order denying his motion for new trial and remand for further proceedings.

Viewed favorably to the jury’s verdict, the evidence shows that the victim, a mentally challenged adult, lived with her aunt and several cousins. Ray, who was also related to the victim, visited the home on occasion, and the family spent time at his house, as well. In December 2009, the victim disclosed to a family member that Ray had assaulted her. The victim’s aunt reported the disclosure to the police.

During the ensuing investigation, the victim submitted to a forensic interview and described several instances of sexual abuse by Ray. The victim confirmed that abuse at trial, testifying that on various occasions Ray had inserted his "boy part" into her "girlie part," touched her "girlie part" with his tongue and finger, placed a sex toy on her "girlie part," and touched her breast with his tongue. She further testified that Ray never asked whether he could touch her, that she did not want to have sexual relations with him, and that the encounters made her feel dirty.

1. Ray argues that the trial court erred in admitting a video recording of the victim’s December 29, 2009 forensic interview, which was played for the jury during the forensic interviewer’s testimony, after the victim had testified. Ray objected to the video’s admission, characterizing the evidence as hearsay that improperly bolstered the victim’s credibility. The trial court disagreed with this characterization, finding the video admissible as a prior consistent statement. On appeal, we review this determination for abuse of discretion. See Kidd v. State , 292 Ga. 259, 260–261 (2), 736 S.E.2d 377 (2013).

OCGA § 24–6–613 (c) governs the admissibility of prior consistent statements. Pursuant to that provision:

A prior consistent statement shall be admissible to rehabilitate a witness if the prior consistent statement logically rebuts an attack made on the witness’s credibility. A general attack on a witness’s credibility with evidence offered under Code Section 24–6–608 or 24–6–609 shall not permit rehabilitation under this subsection. If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose.

The trial court concluded that the video recording rebutted an express or implied charge that prosecutors or family members had improperly influenced the victim’s testimony. We find no error. One relative admitted on cross-examination that she had discussed the victim’s testimony with the victim shortly before trial. Another relative noted that the victim was "pretty easily suggestible," will "answer yes to things even if she ... doesn’t really mean yes," and "wants to make the people around her happy." The victim also conceded that she had discussed her testimony and practiced her responses with personnel from the district attorney’s office.

Ray’s primary defense at trial was that various individuals had convinced the mentally-disabled victim to fabricate the allegations against him. He certainly claimed that the victim was influenced before the December 29, 2009 interview. But through his cross-examination of the victim and other witnesses, Ray also intimated that relatives and state officials had influenced her trial testimony after the interview occurred. The trial court appropriately admitted the prior consistent statement to rebut Ray’s implied charge of recent undue influence. See OCGA § 24–6–613 (c) ; Bolling v. State , 300 Ga. 694, 701 (3), 797 S.E.2d 872 (2017) (prior consistent statement admissible where defense implicitly argued that witness had motive to lie that arose after statement was given).

2. Next, Ray claims the trial court erred in excluding evidence that the victim, who was 38 years old when the trial took place, had been sexually abused when she was approximately 14 years old. In particular, Ray wanted to establish that the victim was raped by her brother, whom the family later allowed to live near the victim. According to defense counsel, this evidence was relevant to impeach the credibility of the victim’s cousin and primary care-giver at the time of trial, who asserted that she sought to keep the victim safe from sexual predators. The trial court disagreed, deeming the evidence irrelevant.

We find no reversible error. The trial court prevented Ray from linking the brother’s criminal history to the victim. But Ray established through cross-examination that the brother was a registered sex offender who was briefly allowed to live near the victim on her care-giver’s property. He thus successfully presented evidence that called the care-giver’s credibility into question and placed a sex offender close to the victim. Even if further information about the brother’s abuse was relevant to impeach the care-giver, we find it highly probable that exclusion of this evidence did not affect the verdict. See Nix v. State , 280 Ga. 141, 145 (5), 625 S.E.2d 746 (2006) (highly probable that exclusion of cumulative evidence did not impact verdict). Although Ray now argues that particular testimony by other witnesses opened the door for admission of this evidence on other grounds, he has not shown that he raised these arguments at trial, and we will not consider them for the first time on appeal. See Prince v. State , 257 Ga. 84, 86 (3), 355 S.E.2d 424 (1987) (appellate court will not consider argument regarding admissibility of evidence raised for first time on appeal).

3. Ray also raises several ineffective assistance allegations, asserting that errors by his defense team entitle him to a new trial. To establish ineffective assistance, Ray must demonstrate that "trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance." Oliverv. State , 337 Ga.App. 90, 92, 786 S.E.2d 701 (2016) (citation and punctuation omitted).

(a) According to Ray, trial counsel unreasonably opened the door to admission of the victim’s forensic interview by suggesting, through cross-examination, that the victim’s testimony had been improperly influenced. We disagree. "How to conduct cross-examination is a tactical decision within the exclusive province of counsel." Oliver , supra at 95 (2), 786 S.E.2d 701. And "[t]actical decisions, even if they misfire, do not generally equate with ineffectiveness." Id. (citation and punctuation omitted). As noted above, Ray’s primary defense was that various individuals influenced the victim to fabricate the sexual abuse allegations. This defense strategy, as well as counsel’s efforts to raise questions about improper influence, were reasonable. See id.

(b) We also find no deficient performance with respect to the trial court’s jury instructions. Ray claims that trial counsel should have objected to the court’s instruction on the elements of force because it did not reference the reasonable doubt standard. The trial court, however, defined and discussed reasonable doubt at length during its charge, noting the State’s burden of proof on multiple occasions. Because the charge as a whole properly informed the jury about the reasonable doubt standard, trial counsel was not deficient in failing to object to the cited instruction. See Sullivan v. State , 242 Ga.App. 613, 615 (4), 530 S.E.2d 521 (2000) ("A trial court does not err in failing to give an appropriate request to charge, as written, when its charge as a whole contains the same principles of law set forth in the request.") (footnote and punctuation omitted).

Ray also contends that trial counsel should have objected to the following charge:

If you find that the alleged victim is incapable of intelligently consenting, the lack of actual force necessary to overcome a resistant victim in other cases is supplied constructively by the rule that no more force need be used than necessary to effect the penetration made by the Defendant.

According to Ray, this instruction relieved the State of its burden to prove force, an essential element of rape. See OCGA § 16–6–1 (a) (1) ("A person commits the offense of rape when he has carnal knowledge of ... [a] female forcibly and against her will."). In Cook v. State , 338 Ga.App. 489, 491 (1), 790 S.E.2d 283 (2016), however, we reaffirmed the principal that when a victim "is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in the constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant." The court’s constructive force instruction was proper, undermining Ray’s claim that counsel should have objected to it. See id. at 492–493, 790 S.E.2d 283 (2); see also Currier v. State , 294 Ga. 392, 397 (2), 754 S.E.2d 17 (2014) ("Since the jury instructions were not erroneous, counsel was not deficient for failing to make an objection that lacked merit.").

(c) The victim’s aunt, who initially reported the victim’s outcry, died before trial. Prior to her death, the aunt gave...