Rozier v. State

• Decision Date: 26 August 2022
• Docket Number: A22A0642
• Citation: 365 Ga.App. 178,877 S.E.2d 855
• Parties: ROZIER v. The STATE.
• Court: Georgia Court of Appeals

365 Ga.App. 178

877 S.E.2d 855

ROZIER

v.The STATE.

A22A0642

Court of Appeals of Georgia.

August 26, 2022

Jerry Wayne Chappell II, for Appellant.

Sherry Boston, District Attorney, Decatur, Jason Matthew Rea, Assistant District Attorney, Atlanta, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Dennis Leon Rozier was convicted of and sentenced on two counts of aggravated cruelty to animals. OCGA § 16-12-4 (d). Rozier argues on appeal that the trial court erred by admitting into evidence a video recording of an eyewitness's statement to police, but the trial court properly admitted this evidence as a prior inconsistent statement under OCGA § 24-6-613 (b). So we affirm the judgment of conviction. Rozier also argues, and the state concedes, that the trial court should have merged the convictions for sentencing purposes. We agree, so we vacate the sentence and remand the case for resentencing.

1. Facts and procedural background.

The trial evidence showed that, while visiting a friend at a motel, Rozier engaged in a physical altercation with his dog, a six-month-old pit bull terrier. This incident left the dog badly injured, with a broken jaw and a broken hip that required several surgeries and a lengthy period of rehabilitation. The state charged Rozier with two counts of aggravated cruelty to animals, alleging that Rozier had knowingly and maliciously caused physical harm to the dog by rendering useless both the dog's jaw and its hip.

Defense counsel presented a justification defense at trial, arguing that Rozier had acted to protect his friend, Ernest Powell, because the dog had unexpectedly attacked Powell. See OCGA § 16-12-4 (h) (1) ("a person shall be justified in injuring ... an animal when and to the extent that he or she reasonably believes that such act is necessary to defend against an imminent threat of injury or damage to any person ...").

Powell's trial testimony supported this defense. He testified:

[Rozier] woke me up, knocked on the door [of the motel room]. I went to the door to let him in, and I didn't see the dog. And so when I went to sit down, the dog tried to attack me. And so Mr. Rozier, he intervened and got in the way and tried to block the dog. So the dog started growling and messing with him. And anyway, so the altercation went on from there.

Powell further testified: "I don't know what was wrong with the dog. He just went haywire.... [Rozier] was trying to discipline the dog or whatever, you know. He got the dog away from me because he kept launching at me." He stated that Rozier "got in the middle of me and the dog and he, you know, pushed the dog away from me. But the dog kept trying to lunge at me. And so that's when ... it bit at him." And Powell stated that "the dog kept coming back and lunging at me, but [Rozier] kicked the dog. And so I was out of the way. It was him and the dog."

Powell gave a very different account of the incident shortly after it happened, when he was interviewed by police at the scene. He stated that he had been asleep in the motel room when he awoke to find Rozier and the dog "tussling." He heard the dog growl at and bite Rozier, and he heard Rozier kick the dog. In Powell's words, "the dog bit [Rozier] and he just nutted up on the dog," meaning that he "started kicking the dog and stuff." This went on for about 10 minutes, with Rozier kicking, punching, and stomping on the dog. After telling Rozier to stop, Powell "just sat down and just watched it."

Powell's statement to the police was recorded, and over Rozier's objection the trial court allowed the state to play that video recording to the jury on the ground that it was a prior inconsistent statement.

The jury found Rozier guilty on both counts, and the trial court entered a judgment of conviction and sentenced Rozier on both counts.

2. Admission of the video recording of Powell's statement.

Rozier argues that the trial court erred by admitting the video recording of Powell's statement because the statement was inadmissible hearsay. We find no abuse of discretion. See Bridgewater v. State , 309 Ga. 882, 886 (2), 848 S.E.2d 865 (2020) (applying abuse-of-discretion standard to review trial court's admission of extrinsic evidence of a prior inconsistent statement).

Pertinently, "[a]n out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement ... under Code Section 24-6-613 (b)...." OCGA § 24-8-801 (d) (1) (A). Under OCGA § 24-8-801 (d) (1) (A), "a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes." Esprit v. State , 305 Ga. 429, 437 (2) (c), 826 S.E.2d 7 (2019) (citations and punctuation omitted). See also Bullard v. State , 307 Ga. 482, 484-485 (1), 837 S.E.2d 348 (2019). Because Powell testified at trial and was available for cross-examination, the video recording of his statement to police was admissible as substantive evidence under OCGA § 24-8-801 (d) (1) (A) so long as it was a prior inconsistent statement under OCGA § 24-6-613 (b). Cf. McGarity v. State , 311 Ga. 158, 164 (3), 856 S.E.2d 241 (2021) (holding that the admissibility of out-of-court statements as prior consistent statements under OCGA § 24-6-613 (c) was dispositive in determining whether the statements fell within OCGA § 24-8-801 (d) (1) (A), where the statements had been made by witnesses who testified at trial and were available for cross-examination).

"On the issue of admitting extrinsic evidence of a witness's prior inconsistent statement, OCGA § 24-6-613 (b) [of our new Evidence Code] substantially adopted the language of Federal Rule of Evidence 613 (b) as it read in 2011[.]" Hood v. State , 299 Ga. 95, 98-99 (2), 786 S.E.2d 648 (2016). Where a Federal Rule of Evidence uses language materially identical to a rule in our new Evidence Code, "we look to federal appellate precedent until a Georgia appellate court decides the issue under the new Code." State v. Almanza , 304 Ga. 553, 558 (2), 820 S.E.2d 1 (2018). See also Hood , 299 Ga. at 99 (2), 786 S.E.2d 648. So we no longer look to decisions under our old Evidence Code on this particular issue.

The trial court did not abuse her discretion in admitting Powell's prior statement to police under OCGA § 24-6-613 (b). Under OCGA § 24-6-613 (b), extrinsic evidence of a witness's prior inconsistent statement may be admitted if "the witness is first afforded an opportunity to explain or deny the prior inconsistent statement and the opposite party is afforded an opportunity to interrogate the witness on the prior inconsistent statement or the interests of justice otherwise require." See Neloms v. State , 313 Ga. 781, 787 (4) (a), 873 S.E.2d 125 (2022).

Contrary to Rozier's argument, the statement was inconsistent with Powell's trial testimony. Although aspects of the two statements could be harmonized, at their core the two statements told very different narratives: the former depicted Powell waking up to find Rozier fighting with the dog after the dog bit Rozier; the latter depicted Rozier intervening when the dog unexpectedly attacked Powell after Powell let Rozier and the dog into his motel room. See generally Bridgewater , 309 Ga. at 886 (2), 848 S.E.2d 865 (when analyzing whether two statements are inconsistent for purposes of OCGA § 24-6-613 (3), we look to the "pertinent inconsistency").

In addition, Powell was given an opportunity to explain or deny his prior statement before the trial court admitted it into evidence. Powell admitted to making the prior statement and explained that he did not tell the police that the dog attacked him because he did not want to "get involved." But Powell also equivocated about his prior statement and testified that he did not completely recall aspects of it. "A witness's failure to remember making a statement may provide the foundation for offering extrinsic evidence to prove that the statement was made[,]" London v. State , 308 Ga. 63, 67 (3) (a), 838 S.E.2d 768 (2020) (citation and punctuation omitted), and our Supreme Court has applied this rule where, as here, a witness does not deny giving a police interview but does not remember aspects of the interview. See Thompson v. State , 304 Ga. 146, 150-151 (6), 816 S.E.2d 646 (2018) ("Given [a witness's] inconsistent testimony at trial and her convenient memory lapses about the portions of her conversation with the police that implicated Appellant, her earlier statements were not hearsay but rather were properly admitted as prior inconsistent statements."). See also Brewner v. State , 302 Ga. 6, 17 (V), 804 S.E.2d 94 (2017) (finding no error in admission of prior inconsistent statement where witness, when asked to explain why the statement differed from her trial testimony, stated that she was "extremely tired and under the influence of drugs" when she gave the statement).

Finally, during trial, Rozier's counsel cross-examined Powell. While Rozier argues that he was not given an opportunity to interrogate Powell before the trial court admitted the evidence, the timing of his cross-examination did not run afoul of the plain language of OCGA § 24-6-613 (b). The statute requires, for admission of a prior inconsistent statement, that "the witness is first afforded an opportunity to explain or deny the prior inconsistent statement and the opposite party is afforded an opportunity to interrogate the witness on the prior inconsistent statement or the interests of justice otherwise require." OCGA § 24-6-613 (b) (emphasis supplied). As seen in the grammatical structure of this sentence, the requirement that something occur "first" only applies to the witness's opportunity to explain or deny the statement, not to the opposite party's opportunity to interrogate the witness. Because Rozier had the opportunity to...