Vallejo v. State

• Decision Date: 03 November 2021
• Docket Number: A21A1110
• Citation: 865 S.E.2d 640,362 Ga.App. 33
• Parties: VALLEJO v. The STATE.
• Court: Georgia Court of Appeals

362 Ga.App. 33

865 S.E.2d 640

VALLEJO

v.The STATE.

A21A1110

Court of Appeals of Georgia.

November 3, 2021

Reconsideration Denied November 17, 2021

Keegan Christian Gary, Hunter Joseph Rodgers, for Appellant.

Donald R. Donovan, Douglasville, Anthony Brett Williams, Matthew Wayne Rollins, for Appellee.

Phipps, Senior Appellate Judge.

Daniel Vallejo, who was convicted of child molestation following a jury trial, appeals from the denial of his motion for new trial. Vallejo contends that the trial court erred by excluding evidence of a prior allegation of molestation made by the victim and that his trial counsel was ineffective in several respects. Finding no error, we affirm Vallejo's conviction.

Viewed in the light most favorable to the verdict, see Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence presented at trial shows that Vallejo moved in with the victim and her mother in August 2013. The victim, who was 15 years old at the time of the abuse, testified that Vallejo began having sex with her in October or November of 2013, and that the abuse, which included vaginal intercourse, continued until October 2014, when she made an outcry to her school guidance counselor. The counselor contacted the police, and Vallejo was arrested.

Vallejo was indicted for two counts of aggravated child molestation (for oral and anal sodomy) and one count of child molestation (for vaginal intercourse). At his 2019 trial, the jury found him guilty of child molestation and not guilty of the remaining counts. Vallejo filed a motion for new trial, which he amended through new counsel. The trial court denied Vallejo's motion (as amended) after a hearing. This appeal followed.

1. Vallejo first contends that the trial court abused its discretion in excluding what Vallejo claims was a prior false allegation of child molestation made by the victim against her father. We disagree.

"In prosecutions for child molestation ..., Georgia's Rape Shield Statute prohibits testimony regarding a complaining witness's past sexual behavior[, but] it does not prohibit testimony regarding previous false allegations by the complaining witness." State v. Parks , 350 Ga. App. 799, 811 (2), 830 S.E.2d 284 (2019), disapproved of on other grounds by State v. Hill , ––– Ga. App. –––– (2) (b), 863 S.E.2d 699, No. A21A1184 (2021) (punctuation omitted).¹ See also OCGA § 24-4-412 (a).

Before such evidence can be admitted, however, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists. In this context, a reasonable probability is a probability sufficient to undermine confidence in the outcome. Defendants have the burden of coming forward with evidence at the hearing to establish a reasonable probability that the victim had made a prior false accusation of sexual misconduct.

Williams v. State , 266 Ga. App. 578, 580 (1), 597 S.E.2d 621 (2004) (citations and punctuation omitted). See also Parks , 350 Ga. App. at 811-812 (2), 830 S.E.2d 284. "We will not disturb the trial court's determination on this threshold issue absent an abuse of discretion." Cheek v. State , 265 Ga. App. 15, 17 (2), 593 S.E.2d 55 (2003). See also Parks , 350 Ga. App. at 813 (2), 830 S.E.2d 284.

Before trial, Vallejo filed a "Motion to Admit False Allegations of Sexual Misconduct by the Alleged Victim," contending that the victim and her mother previously had falsely accused the victim's father² of child molestation. The trial court held a hearing on the motion, at which Vallejo presented the testimony of a former sheriff's office investigator and the victim's former stepmother. The investigator testified that, in 2005, when the victim was six years old, her mother contacted the sheriff's office to report the victim's outcry against her father. The mother reported that the victim told her that the victim's father "would touch her vagina on the top of her clothes and he would kiss her when he was doing that and told her not to tell." During a forensic interview, the victim disclosed that her father touched her vagina through her clothing numerous times and kissed her neck and ear. The victim, unprompted by the interviewer, picked up a doll, pointed to its vaginal area, and said, "That's where he touches me." The victim also indicated that her mother told her that dolls would be used in the interview. The investigator testified that the mother telling the victim about the dolls was "odd" and raised a "red flag." However, she also testified that she believed the victim and her mother. The victim's father denied the allegations. Although the State declined to prosecute, the investigator testified that the district attorney also did not believe that the child was lying.

The victim's former stepmother testified that the victim's father had not known the victim existed until the victim was around two years old. After a test established his paternity, the victim's father legitimated the victim, began paying child support, and had visitation every other weekend. The former stepmother testified that she never saw any evidence that the victim's father had acted inappropriately with the victim and never noticed the victim was afraid to be home alone with her father. In fact, according to the former stepmother, in the weeks before the victim's outcry, the victim "was getting more comfortable and she wanted to come to our house. And wanted to stay and stay longer[.]" The former stepmother claimed that the victim expressed an interest in living with or spending more time with her father and former stepmother but the victim's mother told the stepmother "that would never happen[ ]." The stepmother reported this conversation to the investigator following the victim's outcry.

After the hearing, the trial court denied Vallejo's motion, finding that the evidence presents only "a possibility of falsehood as opposed to a reasonable probability of falsehood." In the order denying Vallejo's motion for new trial, the trial court again stated that it had considered the evidence presented at the hearing and found that Vallejo "had not carried his burden of showing a reasonable probability of falsity."

Vallejo argues that significant evidence of falsity was presented at the hearing and that the trial court abused its discretion in finding otherwise. Of course, "[a]n accused's assertion that the accusations against him are false does not necessarily raise a reasonable probability of falsity." Cheek , 265 Ga. App. at 17 (2), 593 S.E.2d 55. See also Parks , 350 Ga. App. at 812 (2), 830 S.E.2d 284. And "the fact that an accusation is not prosecuted" likewise "is insufficient to establish its falsity." Williams , 266 Ga. App. at 581 (1), 597 S.E.2d 621. See also Parks , 350 Ga. App. at 812-813 (2), 830 S.E.2d 284. Nevertheless, Vallejo contends that there was significant additional evidence of falsity presented at the motion hearing. Relying on dubious inferences drawn from the investigator's and former stepmother's testimony, Vallejo maintains that the evidence shows that the victim's mother had a motive to coach the victim into making false allegations against her father and that the victim was, in fact, coached. However, this argument goes to the credibility of the witnesses’ testimony; indeed, Vallejo has effectively asserted that the trial court should have credited the stepmother's testimony over the investigator's. This argument presents no ground for reversal. After observing the witnesses’ demeanor and considering their interests in the case, the trial court found the investigator's testimony to be credible and concluded that the stepmother's testimony "did not demand a finding of reasonable probability of falsity." The testimony at the hearing supports the trial court's finding that falsity was not established by a reasonable probability. See Williams , 266 Ga. App. at 580-581 (1), 597 S.E.2d 621 (upholding exclusion of evidence of alleged prior false statement where the trial court's ruling was based in part on the court's determination of the credibility of the witnesses the court observed in person before ruling on admissibility). See also Parks , 350 Ga. App. at 812-813 (2), 830 S.E.2d 284. Accordingly, we find no abuse of discretion in the trial court's exclusion of evidence of the alleged prior false allegation.

We disagree with the dissent's assertion that in State v. Burns , 306 Ga. 117, 123 (2), 829 S.E.2d 367 (2019), the Supreme Court of Georgia rejected the rule established in Smith v. State , 259 Ga. 135, 137-138 (1), 377 S.E.2d 158 (1989), requiring the trial court to make a threshold determination that a reasonable probability of falsity exists before evidence of prior false allegations can be admitted. In Burns , the victim admitted that her prior allegation was false, 306 Ga. at 118, 829 S.E.2d 367, and the Supreme Court therefore did not discuss whether the threshold determination requirement remains good law. See id. at 119-126 (2)-(3), 829 S.E.2d 367.³

The dissent's reliance on our decision in Ray v. State , 356 Ga. App. 266, 841 S.E.2d 477 (2020) (" Ray III "), also is misplaced. In Ray v. State , 345 Ga. App. 522, 529 (4), 812 S.E.2d 97 (2018) (" Ray I "), overruled in part by Burns , 306 Ga. at 124 (2), 829 S.E.2d 367, we held that the trial court erred in excluding as irrelevant evidence that the victim's aunt had made prior false claims of sexual abuse. We vacated the trial court's judgment and remanded the case with the direction that "the trial court must make the necessary threshold determination regarding falsity." Id. We further instructed the trial court that "[i]f a reasonable likelihood of falsity exists, evidence of the allegations is admissible, and [the defendant] is entitled to a new trial." Id. As the dissent notes, at the time of the Burns decision, our decision in Ray I was before the Supreme Court on a petition for a writ of certiorari. In the order vacating...