Wagner v. State, A01A2196.

• Decision Date: 21 February 2002
• Docket Number: No. A01A2196.,A01A2196.
• Citation: 560 S.E.2d 754,253 Ga. App. 874
• Parties: WAGNER v. The STATE.
• Court: Georgia Court of Appeals

560 S.E.2d 754

253 Ga. App. 874

WAGNER v. The STATE.

No. A01A2196.

Court of Appeals of Georgia.

February 21, 2002.

Zell & Zell, Rodney S. Zell, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Anne E. Green, Amira S. AbuBakr, Asst. Dist. Attys., for appellee. SMITH, Presiding Judge.

Clarence Wagner was indicted by a Fulton County grand jury for the offenses of rape, statutory rape, and aggravated child molestation. He was tried by a jury. The trial court directed a verdict on the child molestation charge at the close of the State's case, and the jury found Wagner guilty of the remaining two counts. Following the denial of his amended motion for new trial, Wagner appeals from the judgment of conviction and sentence. He raises eight enumerations of error, challenging the admission of certain evidence, the trial court's refusal to allow him to introduce evidence of prior false accusations by the victim or to impeach the victim's testimony on cross-examination, the trial court's excusing a juror for cause and failure to exclude a different juror for cause, and the trial court's denial of his motion for mistrial based on juror misconduct. We find no reversible error, and we affirm.

Construed to support the jury's verdict, the evidence presented at trial showed that the victim, who was 14 at the time, was living with her aunt when the incident occurred. Wagner, who was the victim's cousin, and Deon Warner, her uncle, visited the home during the early morning hours of April 11, 1996. The victim testified that while she was speaking on the telephone in a bedroom, Wagner came in and lay down close to her on the bed, prompting her to move to another room so she could continue her telephone conversation in privacy. Wagner knocked on the door of that room and told her to follow him downstairs so she could lock the door when he left. When she did so, however, Wagner grabbed the phone, pushed the victim into the room, and "snatched" off her shirt and her bra and then her jeans. When the victim began screaming, Wagner grabbed her under the arms and forced her into a different room. Although she told him she was "too young for that to happen to me," and she was "screaming and hollering for" her uncle, he "slammed" her on the bed, penetrated her, and then hit her. When he finished, before leaving he told her "how sorry he was and that he was sick." The victim told her uncle that Wagner had raped her, and her uncle called the police. The victim was taken to the hospital, where she was examined by a doctor. A rape kit was not performed, but the victim testified that hair and semen samples were collected.

Warner testified that Wagner had just been released from jail and he and Wagner had been out celebrating. They did not have a ride back to Warner's home, so they decided to spend the night at Warner's sister's home, where the victim was staying. At about 5:00 a.m., the victim came running downstairs, "crying hysterically." She reported that Wagner had raped her and confirmed upon questioning that he had penetrated her. He called the police, who responded and drove them to the hospital.

A City of Atlanta Police Department detective was called to investigate. He testified that the victim first appeared to be upset, somewhat confused, and reluctant to speak to him, but she later "opened up" and discussed the rape with him. After learning where Wagner was located, he obtained an arrest warrant, and Wagner was arrested.

1. Wagner challenges the admission of evidence placing his character in issue.

(a) He maintains that his right to due process of law under the Georgia and United States Constitutions was violated when the trial court allowed the State to introduce evidence of his previous conviction for aggravated assault as a similar transaction. He maintains it was not sufficiently similar because in the prior crime, the sexual assault was on an adult woman, whereas in the charged incident, the victim was a minor. The trial court "reluctantly" admitted this evidence to show Wagner's bent of mind.

We find no error. "[I]n the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. [Cit.]" McBee v. State, 228 Ga.App. 16, 19(1), 491 S.E.2d 97 (1997). In addition, when

forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other.

(Citations and punctuation omitted.) Id. at 18-19(1), 491 S.E.2d 97. The crime need not be identical to the charged crime to be admissible. Brooks v. State, 230 Ga.App. 846, 847(1), 498 S.E.2d 139 (1998). Here, the similar transaction involved a forcible sexual assault, as did the charged crime. And when the crimes are similar, the difference in the victims' ages need not render the similar transaction inadmissible. See, e.g., Tucker v. State, 191 Ga.App. 648, 382 S.E.2d 425 (1989) (similar transaction admitted even though victim of prior offense was 24 and charged crime involved 12-year-old). Here, the similar transaction and the charged crime were sufficiently similar. Both occurred in the early morning hours in a bedroom of a residence where the accused had been invited, and both involved forcible sexual assault. We find no error in the admission of the prior crime.

(b) Wagner contends that his right to due process of law was also violated when the court allowed the State to present evidence of the date he was released from prison on his prior conviction for aggravated assault. The State argued at trial that this evidence was part of the similar transaction and that it was relevant to show bent of mind, course of conduct, and motive.

Wagner argues that since he made no reference to his prior incarceration and it was not relevant to his motive, intent, or course of conduct, it was inadmissible; the fact that he had just been released from prison had nothing to do with these things. Unlike the situation in Greer v. State, 199 Ga.App. 106, 403 S.E.2d 825 (1991), where the accused stated that he was on probation, just got out of prison, and would not have committed the crime, id. at 107(1), 403 S.E.2d 825, Wagner argues that he did not use his release from prison as part of his defense and it had no relevance to bent of mind or course of conduct.

But the challenged evidence was cumulative of other evidence, since the State introduced a certified copy of the prior conviction, as well as the testimony of the victim of the prior aggravated assault. We have determined that this testimony was properly admitted. In addition, Warner testified that he and Wagner had been out celebrating Wagner's release from prison. Wagner did not object to that testimony. Even assuming, therefore, that admission was error, it was harmless. Jowers v. State, 245 Ga.App. 773, 776(6), 538 S.E.2d 853 (2000).

(c) Citing Eiland v. State, 213 Ga.App. 838, 445 S.E.2d 765 (1994), Wagner complains that the trial court allowed the indictment in the prior crime to be admitted into evidence even though he pled guilty to a lesser offense. But in Eiland, the defendant pled guilty to two counts of child molestation and then withdrew his plea, later pleading guilty to two counts of sexual battery. The original indictment, showing the original guilty plea, was later admitted into evidence as a similar transaction in Eiland's unrelated subsequent trial on three counts of child molestation, notwithstanding a judge's previous ruling that the indictment must be redacted. This court held that this was error because the indictment showed that the defendant had pled guilty to child molestation, which was not true, and child molestation involves a different intent than sexual battery. Id. at 839, 445 S.E.2d 765. Here, the offense of sexual battery, to which Wagner pled, involves the intent to rape, with which Wagner was charged in the prior crime. In addition, in Eiland no other evidence of the prior crime was admitted. Here, the State presented the testimony of the victim of the similar transaction, and her testimony supported the charge in the indictment. Under these circumstances, it was not error to admit the prior indictment.

2. Wagner contends the trial court erred in refusing to allow him to present evidence that the victim made a false allegation against another person. Wagner sought to show that the victim had also accused her grandfather of molesting her. Evidence of prior false accusations by a rape victim does not fall within the proscription of the rape shield law, but before admitting such evidence the trial court must determine outside the presence of the jury that a reasonable probability exists that such accusations were false. Strickland v. State, 205 Ga.App. 473, 422 S.E.2d 312 (1992). The court held a hearing on this matter and determined that a reasonable probability did not exist that the accusation against the victim's grandfather was false.

At the hearing, both the grandfather and a Department of Family & Children Services (DFACS) worker testified. A pending indictment existed against the grandfather, accusing him of child molestation and aggravated sexual battery against the victim. The grandfather was therefore given the Miranda warnings, and he testified that the charges against him were not true and that his granddaughter had fabricated them because she was angry at him. He testified that the victim had made up lies against other people when she was angry, including one which caused her mother to lose custody of her children. He testified before the jury that the victim's reputation for truthfulness was "bad" and that she should not be believed under oath. The caseworker testified that no physical evidence existed of molestation, that absence of such...