White v. State

• Decision Date: 04 February 2019
• Docket Number: S18G0365
• Citation: 305 Ga. 111,823 S.E.2d 794
• Parties: WHITE v. The STATE.
• Court: Georgia Supreme Court

305 Ga. 111

823 S.E.2d 794

WHITE

v.The STATE.

S18G0365

Supreme Court of Georgia.

Decided: February 4, 2019

Andrew Santos Fleischman, Noah Howard Pines, ROSS & PINES, LLC, 5555 Glenridge Connector, Suite 435, Atlanta, Georgia 30342, for Appellant.

Layla Hinton Zon, District Attorney, ALCOVY JUDICIAL CIRCUIT, DISTRICT ATTORNEY'S OFFICE, 1132 Usher Street, N.W., Suite 313, Covington, Georgia 30014, for Appellee.

MELTON, Chief Justice.

This case concerns the proper statutory interpretation of OCGA § 24-4-412, Georgia’s Rape Shield Statute, which provides:

(a) In any prosecution for rape in violation of Code Section 16-6-1 ; aggravated assault with the intent to rape in violation of Code Section 16-5-21 ; aggravated sodomy or sodomy in violation of Code Section 16-6-2 ; statutory rape in violation of Code Section 16-6-3 ; aggravated child molestation or child molestation in violation of Code Section 16-6-4 ; incest in violation of Code Section 16-6-22 ; sexual battery in violation of Code Section 16-6-22.1 ; or aggravated sexual battery in violation of Code Section 16-6-22.2, evidence relating to the past sexual behavior of the complaining witness shall not be admissible , either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section . For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

(b) ... [E]vidence relating to the past sexual behavior of the complaining witness may be introduced if the court, following the procedure described in subsection (c) of this Code section, finds that the past sexual behavior directly involved the participation of the accused and finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution .

(c) The procedure for introducing evidence as described in subsection (b) of this Code section shall be as follows:

(1) At the time the defense seeks to introduce evidence which would be covered by subsection (b) of this Code section, the defense shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused's offer of proof;

(2) At the conclusion of the hearing, if the court finds that any of the evidence introduced at the hearing is admissible under subsection (b) of this Code section or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced; and

(3) The defense may then introduce evidence pursuant to the order of the court.

(Emphasis supplied).

In this case, on November 21, 2014, Charles White was found guilty of three counts of rape, one count of statutory rape, ten counts of child molestation, three counts of aggravated sodomy, three counts of incest, and one count of enticing a child for indecent purposes in connection with incidents involving three victims, including S.M., who was a member of White’s extended family. The information that led to White’s indictment for these sex crimes came to light after twelve-year-old S.M. had been accused of, and later admitted to, molesting her two younger stepsisters.¹ During the course of being questioned about her own sexual misconduct, S.M. disclosed that she had been sexually abused by White since she was five years old and that White had done things to her that were similar to the things that she had done to her stepsisters. Prior to White’s trial, S.M. was adjudicated delinquent in juvenile court for having committed sexual batteries against her two stepsisters.

White filed a pretrial motion in limine to have evidence of S.M.’s prior sexual acts excluded from his trial, arguing that the admission of the evidence would have been more prejudicial to White than probative of any issue at trial. But the trial court denied White’s motion, and, at trial, without further objection from White’s counsel, the State briefly elicited testimony from S.M. regarding her prior sexual misconduct and her delinquency adjudication. The State also presented expert testimony in which the expert noted briefly that, in general, young children who act sexually toward other children may be exhibiting behavior consistent with having been victims of sexual abuse. In addition to this evidence, White’s other two victims testified directly about the abuse that they claimed that they had been subjected to by White, and the family members to whom the victims had spoken about the abuse testified as well.

Following his convictions, White filed a motion for new trial on November 25, 2014, which he amended on September 19, 2016, arguing for the first time that the trial court committed plain error² by admitting into evidence at trial testimony regarding S.M.’s sexual history — specifically, her sexual misconduct — in violation of Georgia’s Rape Shield Statute. The trial court denied the motion, and White appealed to the Court of Appeals, continuing to argue that the trial court erred in allowing the State to introduce evidence of S.M.’s prior sexual misconduct. However, the Court of Appeals affirmed White’s convictions in an unpublished opinion, finding that Georgia’s Rape Shield Statute could not be invoked by a defendant to prevent a victim from offering evidence that was otherwise relevant to the case. In light of this ruling from the Court of Appeals, we granted White’s petition for a writ of certiorari to resolve the following questions:

(1) Can a defendant invoke OCGA § 24-4-412 in order to prohibit the admission of evidence of a witness’s past sexual behavior offered by the State? Compare, e.g., Orengo v. State, 339 Ga. App. 117 (10), 793 S.E.2d 466 (2016) (" ‘the Rape Shield [S]tatute ... cannot be invoked by a defendant to prevent a victim from offering otherwise relevant evidence’ (citation omitted)") with, e.g., Johnson v. State, 146 Ga. App. 277 (2), 246 S.E.2d 363 (1978) (holding that a defendant may, by proper and timely objection, prevent the State from introducing evidence excluded by the Rape Shield Statute).

(2) Is evidence of a complaining witness’s past sexual behavior admissible if that evidence is relevant to an issue other than consent? Compare, e.g., Warner v. State, 277 Ga. App. 421 (2), 626 S.E.2d 620 (2006), with, e.g., Herndon v. State, 232 Ga. App. 129 (2), 499 S.E.2d 918 (1998).

(3) Did the trial court improperly admit evidence of the complaining witness’s past sexual behavior, and, if so, was any such error harmless?

For the reasons set forth below, we determine that (1) yes, a defendant can invoke the Rape Shield Statute to prohibit the admission of evidence of a witness’s past sexual behavior offered by the State where such offered evidence is inadmissible pursuant to the terms of the Rape Shield Statute; (2) no, because evidence of a complaining witness’s past sexual behavior is only admissible under the Rape Shield Statute if that evidence is relevant to the issue of consent; and (3) the trial court did improperly admit evidence of the complaining witness’s past sexual behavior in this case, but the admission of this evidence did not amount to plain error requiring reversal of White’s convictions. Accordingly, we ultimately affirm the judgment of the Court of Appeals, though we reject the Court of Appeals’ reasoning.

1. In order to determine whether a defendant can invoke OCGA § 24-4-412 to prohibit the admission of evidence of a witness’s past sexual behavior offered by the State, we examine the plain language of the statute, presuming

that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would .... [And] if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 173 (1) (a), 751 S.E.2d 337 (2013).

With these principles in mind, a natural reading of the text of OCGA § 24-4-412 indicates that evidence of a complaining witness’s past sexual behavior may not be introduced by any party at a trial involving a prosecution for certain sexual crimes unless such evidence falls under the one specific exception contained in the statute itself. There is nothing ambiguous about the language in OCGA § 24-4-412 (a) stating that

[i]n any prosecution for [the sex crimes listed in the Rape Shield Statute], evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section.

Thus, unless there is a specific exception contained in OCGA § 24-4-412 indicating that the statute only applies to evidence introduced by criminal defendants and not to evidence introduced by the State, the evidentiary restrictions contained in the statute apply equally to both the State and defendants "[i]n any prosecution" for the sex crimes to which the Rape Shield Statute applies. The only exception to the evidentiary restrictions created by the Rape Shield Statute is contained in OCGA § 24-4-412 (b), which establishes that a defendant³ may introduce

evidence relating to the past sexual behavior of the

...