Estes v. State

• Decision Date: 16 February 1983
• Docket Number: No. 65540,65540
• Citation: 165 Ga.App. 453,301 S.E.2d 504
• Parties: ESTES v. The STATE.
• Court: Georgia Court of Appeals

Page 504

301 S.E.2d 504

165 Ga.App. 453

ESTES v. The STATE.

No. 65540.

Court of Appeals of Georgia.

Feb. 16, 1983.

Hoke J. Thomas, Jr., La Grange, for appellant.

Arthur E. Mallory III, Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

Defendant appeals his conviction for committing incest with his 16-year-old daughter. Held:

1. Error is enumerated because the trial court held that the rape shield statute, Code Ann. § 38-202.1 (Ga.L.1976, p. 741), applied and thus denied the defense a full and sifting cross-examination of the victim and the investigating police officer concerning the victim's prior sexual conduct as well as the admission of physical evidence bearing on her conduct.

Code Ann. § 38-202.1 provides that the past sexual behavior of the complaining witness in a rape case is not admissible unless the court finds that the past sexual behavior directly involved the accused or that the evidence to be introduced supports an inference that the accused could have reasonably believed that the victim consented.

This shield statute has been held applicable to statutory rape as a lesser included offense of rape in Barnes v. State, 244 Ga. 302(3), 306, 260 S.E.2d 40, where the court said: "Although the act is applicable by its terms to rape cases, logic and the intent of the act show that it should be equally applicable in statutory rape cases, except that the exceptions in the act relating to consent and the accused's prior participation would be inapplicable in statutory rape cases." Compare, Hill v. State, 159 Ga.App. 489(2), 283 S.E.2d 703.

In Roberts v. State, 158 Ga.App. 309(2), 279 S.E.2d 753, where the defendant was tried and convicted for kidnapping with bodily injury but the evidence also established rape and aggravated sodomy (but not within the venue of the court), we held that the shield statute applied. "Because the alleged rapes and aggravated sodomy constituted evidence of the bodily injury here, their proof was as relevant to the kidnapping conviction as though the appellant had been charged with those offenses. Since proof of rape was proof of bodily injury, the reasons why evidence of prior sexual experience is not permitted by Code Ann. § 38-202.1 are equally applicable in this case." Id. at 310, 279 S.E.2d 753.

And in Decker v. State, 139 Ga.App. 707(2), 229 S.E.2d 520, where the defendant was convicted of the molestation of an 8-year-old girl, we said at 708, 229 S.E.2d 520: "Inquiry into the prosecutrix' past sexual experiences are irrelevant to whether or not she was molested by this defendant."

Since incest also can be a lesser offense of rape when the facts so warrant, Ramsey v. State, 145 Ga.App. 60(10), 243 S.E.2d 555, the rationale of Barnes v. State, 244 Ga. 302(3), 260 S.E.2d 40, supra, applies equally as well to incest. Because there is evidence of rape in this case in that the victim testified that defendant forced himself on her against her will, "the reasons why evidence of prior sexual experience is not permitted by Code Ann. § 38-202.1 are equally applicable in this case." Roberts v. State, 158 Ga.App. 309(2), 310, 279 S.E.2d 753, supra. And since consent is not an element of incest, "[i]nquiry into the prosecutrix' past sexual experiences are irrelevant ..." Decker v. State, 139 Ga.App. 707(2), 708, 229 S.E.2d 520, supra.

Therefore, the trial court did not err in ruling that the defense could not inquire into the victim's past sexual experience.

2. When the defense counsel was cross-examining the police investigator, he began to question her about the contents of the police investigative file. Upon the state's objection and request, the trial court required defense counsel to introduce the contents of the police file into evidence before he could cross-examine the witness concerning them. This action of the trial court is enumerated as error.

Defendant contends that the documents in the police file should not have been admitted because their admission compelled defendant to give evidence against himself in violation of the Federal and State constitutions. However, defendant did not object to the admission on this ground at trial which bars our consideration of this contention on appeal. Jefferson v. State, 157 Ga.App. 324(2), 277 S.E.2d 317.

Defendant did assert at trial that he could not be required to place in evidence the contents of the police file as a prerequisite to cross-examination concerning them. We find this assertion meritorious.

"A police report may be admissible as a business entry under Ga.L.1952, p. 177 (Code Ann. § 38-711) where a proper foundation is laid, but when it includes hearsay statements, opinion evidence, and conclusions, it is not generally admissible. [Cits.] Impeachment of the police officers might have been attempted by cross-examining them as to their testimony being in conflict with the information in the police report, but the police report itself would not be allowed in evidence since these officers testified from the stand. The court did not err in excluding the police report." Pickett v. State, 123 Ga.App. 1 (2), 2, 179 S.E.2d 303.

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