Wand v. State, A97A1989
| Citation | 230 Ga.App. 460,496 S.E.2d 771 |
| Decision Date | 05 February 1998 |
| Docket Number | No. A97A1989,A97A1989 |
| Parties | , 98 FCDR 794 WAND v. The STATE. |
| Court | Georgia Court of Appeals |
William H. Newton III, Rome, for appellant.
Tambra P. Colston, District Attorney, Bryant G. Speed II, Assistant District Attorney, for appellee.
Convicted of child molestation (OCGA § 16-6-4(a)) and giving a false name (OCGA § 16-10-25), Jeffrey Wand appeals the molestation conviction on two grounds: insufficient evidence and error in disallowing cross-examination of the victim's mother about prior allegations of sexual abuse against the victim. Beyond the general grounds, the issues are (a) whether previous molestation accusations (whether true or false) are admissible in a child molestation case to explain the victim's lack of a hymen or to attack the mother's credibility, and (b) whether Wand's failure to proffer evidence of the truth or falsity of the prior allegations, or to request a hearing on them, precluded cross-examination about them.
1. The standard of review for sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 1 In this context, " 'appellant no longer enjoys a presumption of innocencen appellate court determines only the legal sufficiency of the evidence ... and does not weigh [it] or assess the credibility of the witnesses. 2
One Saturday, Wand, his wife, his 13-year-old stepdaughter and his brother-in-law were watching a movie in the living room. The stepdaughter went into her mother's bedroom to pet the family dog. Wand soon followed and demanded she remove her clothes. When she refused, he forcibly removed them, pulled out his organ, laid down on top of her, and kissed her "all over." She testified he then had sexual intercourse with her. The mother walked into the bedroom, witnessed him on top of her daughter engaging in sexual activity, and saw and heard him jump up and exclaim, "It's her fault!" She demanded he leave, which he did. The victim testified he had also engaged in sexual intercourse with her the preceding two or three Saturdays. This evidence is more than sufficient to sustain a child molestation conviction.
The proof is not undermined by the failure of the emergency room physician to discover any visible evidence of molestation. The physician testified he would expect to find such in only about one-third of the cases where sexual activity had occurred. Evidence the mother had a motive to fabricate a story and to coach the victim so as to get rid of Wand simply presents a jury issue. " 'The jurors are the judges of credibility and weight of the evidence; they see and hear the witnesses and are better qualified to judge the reasonableness of a hypothesis or a doubt than the appellate court.' " 3
Wand argues that his acquittals of rape (OCGA § 16-6-1), statutory rape (OCGA § 16-6-3), and incest (OCGA § 16-6-22) mean that no intercourse took place, and thus there is no evidence of molestation. He relies on the inconsistent verdict rule, but it has been abolished in Georgia. 4 Besides, there is no inconsistency. The acquittals simply mean the jury found insufficient evidence of penetration, which is not an element of child molestation. 5 His other acts independently suffice to sustain the conviction. 6
2. As to the court's refusal to allow Wand to cross-examine the victim's mother about her daughter's prior allegations of sexual abuse against the child, Wand argued a two-fold purpose for the evidence: if the prior allegations of the child were false, they would show the current allegations are unfounded; if true, they would offer an alternative explanation for the medical evidence that the victim had no hymen. Appellant acknowledges the standard of review, which is that the 7
(a) First, any limits on examining the mother about these prior allegations were harmless, for Wand had earlier cross-examined the victim about them with no objection. She confirmed that her mother had made the accusations and, in response to Wand's direct question, testified that the accusations were true.
In Duck v. State 8 the trial court did not allow defendant to cross-examine a psychiatrist about another alleged molestation against the victim but did allow these questions to the victim and her stepmother. Although Duck held the court should have allowed these questions to the psychiatrist, Duck found the error harmless where other witnesses answered them. 9
(b) Second, the court correctly limited inquiry into the prior allegations. Wand established through cross-examination of the child that the prior molestations in fact did occur, and Wand did not challenge or seek to undermine this testimony. He did not question her further about it at all.
Nor did Wand at any point proffer any evidence that the prior molestations did not occur. When the court inquired as to the relevancy of Wand later cross-examining the mother about her reporting the prior molestations, Wand initially claimed he wanted to prove the mother's prior reports of molestation were false. When the court pointed out the allegations came from the child, not from the mother who was merely reporting the child's statements, Wand abandoned this tactic and took the position that the allegations (which he had already established through the child were true) would explain the child's lack of a hymen. Wand did not suggest nor proffer any evidence to show the allegations were false or that the mother had coached the child into making false prior allegations.
Even if Wand had continued to pursue the rationale that the child's prior allegations were false, his cross-examining the mother about them was excludable. Some cases rely on the Rape Shield Statute (OCGA § 24-2-3) for limiting such inquiries. 10 Even without it, a sound basis for exclusion in child molestation prosecutions is the common law principle of relevancy.
In a child molestation prosecution, evidence pertaining to other molestations of the child is admissible as a matter of common law under certain limited circumstances. Wilson v. State 11 enumerates them: (a) to show that someone other than defendant caused the injuries to the child; 12 (b) to show lack of victim credibility if the victim's prior allegations of molestation were false; 13 and (c) to show other possible causes for the symptoms exhibited. 14
In this case, as in Woods v. State, 15 the common law governs whether in defending against the child molestation charge Wand could cross-examine the mother about her reporting the child's prior allegations of molestation. It is excludable, and thus it is unnecessary to determine the applicability of the Rape Shield Statute.
(c) Wand's purpose for showing the allegations of prior molestation were false does not win admissibility. "Absent a showing of relevance, evidence of a child's past sexual history, including acts committed by persons other than the accused, is inadmissible." 16 Under the common law requirement of relevancy, evidence of false allegations is admissible only "to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur." 17
But the common law rule of relevancy generally applies to show false accusations made by the victim, not the victim's mother. In Lane v. State 18 the trial court prohibited the defendant from asking a witness about the victim's mother having falsely accused that witness of child molestation. Citing Smith v. State, 19 the defendant claimed the questioning was proper. Lane held that the 20 Showing the victim made previous false allegations is directly relevant to the question of defendant's guilt; showing the victim's mother reported those allegations does not affect the victim's credibility. The relevance of the mother's reporting is marginal. 21
(d) Even if the Smith rule (false accusations are relevant to show credibility) were applicable, Wand failed to follow the procedure required to introduce evidence of false accusations. Smith and its progeny have emphasized: "before such evidence can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists." 22 As in Allen, Wand 23
(e) Nor did Wand proffer what evidence would have been introduced at either a Smith hearing or at trial had the hearing or questioning taken place. The defendant in Hicks v. State 24 proffered no evidence in the Smith hearing that the victim's allegations of past sexual abuse were false. Hicks upheld the exclusion of prior false allegations. 25
The rule is stated and applied in Thompson v. State: 26 " ...
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...are only marginally relevant or in which trial strategy calls for omitting evidence of them. See, e.g., Wand v. State, 230 Ga.App. 460, 463(2)(c), 496 S.E.2d 771 (1998) (physical precedent only). But see id. at 466, 496 S.E.2d 771 (Smith, J., concurring specially) (disagreeing that in that ......