Cook v. StateCook v. State
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A jury found Barry Craig Cook guilty of rape. Cook appeals from the judgment of conviction and denial of his motion for new trial. We affirm, for the following reasons:
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Miller v. State, 230 Ga. App. 73 (495 SE2d 329) (1997). So viewed, the evidence in this case shows that the victim testified that she awoke to find Cook, her estranged ex-boyfriend, standing in her bedroom. Cook attempted to talk to the victim about reconciling their relationship, but the victim refused. A struggle then ensued. Cook forcibly removed the victim’s clothing, dragged her downstairs, threw her onto a bed and had sexual intercourse with her. The victim testified that she did not consent to sexual intercourse. After she was raped, the victim called her sister and told her to call the police. The victim’s sister called 911 while en route to the house where the rape occurred. The 911 operator in turn called the house and talked to the victim.
Investigator Angela Fedd responded to the. crime scene and obtained a statement from the victim. The victim told Officer Fedd that Cook broke into her house, entered her bedroom and raped her.
1. Cook contends that the trial court erred in excluding evidence about the victim’s proposed abortion because this evidence was the basis for the argument he had with the victim and consequently was relevant to explain why he went to the victim’s home, what caused the argument, and the reason Cook consoled the victim. Cook further contends that the emotional nature of the discussion about the victim’s plan to have an abortion was necessary to give the jury a picture of the highly emotional confrontation between the victim and the defendant which led to the consensual intercourse. Cook argues
At trial, Cook’s trial counsel objected to Fedd’s reference to Cook hitting the victim previously, arguing that the statement placed Cook’s character into evidence. The trial court found the reference was made inadvertently, and denied Cook’s motion for mistrial. However, the court gave the jury a curative instruction, but avoided repeating the statement that Cook hit the victim previously. At the close of the evidence, the court considered Cook’s proffered testimony that the victim told him that she was pregnant and had decided to have an abortion. Cook further stated that he went to the victim’s home to confront her about this decision, an argument ensued, and during the course of consoling the victim, they engaged in consensual intercourse. The trial court considered Cook’s proffer but did not allow its admission.
“ Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.’ [Cits.]” Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981). However, irrelévant matters which improperly tend to reflect adversely on the victim’s character, which destroy a juror’s impartiality, or which only excite the passions of the jurors should not be admitted. Kennard v. State, 180 Ga. App. 522 (1) (349 SE2d 470) (1986). See Teasley v. State, 177 Ga. App. 554, 555 (2) (340 SE2d 32) (1986).
Cook acknowledges that the evidence complained of “is extremely emotional and divisive, and persons with divergent views often become heated over this subject.” The State agrees, stating that “abortion is one of the most inflammatory issues of our time.”
Here, the trial court allowed Cook to present evidence of the past sexual relationship between the parties pursuant to the Rape Shield Statute,
2. Cook asserts that the trial court erred in denying his motion for mistrial after the officer testified that Cook previously hit the victim. In addition, Cook claims the statement was flagrantly prejudicial, and made more egregious by the prosecutor’s failure to instruct the officer of the pre-trial ruling limiting the officer’s testimony.
We first note that the record fails to show that Cook raised a prosecutorial misconduct issue at trial. Thus, Cook has waived this issue on appeal. Johnson v. State, 258 Ga. 856, 858 (376 SE2d 356) (1989). Nor does the record show that the officer intentionally violated the court’s in-limine ruling by injecting this evidence. Under the circumstances of the instant case, “[t]he State’s alleged misconduct is not an issue, the controlling issue is whether a mistrial was essential to the preservation of defendant’s right to a fair trial. [Cit.]” Edwards v. State, 200 Ga. App. 580, 582 (1) (408 SE2d 802) (1991).
“A trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including ‘the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ [Cit.]” White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).
At trial, the officer testified that “[Cook] wasn’t doing anything to [the victim] and a conversation took place, because she
Judgment affirmed.
Pope, P. J., and Beasley, J., concur.