A16A2014. JONES v. THE STATE.
(798 SE2d 87)
Court of Appeals of Georgia
March 8, 2017
McFADDEN, Presiding Judge.
1. Sufficiency of the evidence and denial of motion for new trial.
Jones argues that the evidence was insufficient to authorize his convictions and that the trial court erred in denying his motion for new trial because the verdict was against the weight of and contrary to the evidence and the law, and it was contrary to principles of justice, fairness, and equity. When a defendant challenges the sufficiency of the evidence, “the relevant question 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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). We review a lower court’s refusal to grant a new trial under the same standard. Batten v. State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014). In applying this standard, we do not resolve conflicts in the testimony, weigh the evidence, or draw inferences from the evidence, as those are functions of the jury. See Jackson, supra. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).
After A. M.’s 2009 outcry, some of her relatives confronted Jones and his mother with A. M.’s allegations and journal entry. Jones became extremely upset, and his mother called 911 because she was worried that Jones would harm himself. When the police arrived they found Jones crying and apologizing.
This evidence authorized the jury to find that Jones committed the offense of rape, which occurs when a person “has carnal knowledge of . . . [a] female forcibly and against her will[.]”
2. Outcry witness testimony.
Jones argues that the trial court erred in allowing four outcry witnesses “to testify in a cumulative and bolstering fashion as to the [s]tate’s alleged [v]ictim’s hearsay statements.” But as to two of these witnesses (A. M.’s mother and one of A. M.’s cousins), Jones did not preserve this issue for appellate review because he did not both object to and obtain a distinct ruling from the trial court on the admissibility of the witnesses’ testimony.
Standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below.
Jeffers v. State, 290 Ga. 311, 314 (4) (a) (721 SE2d 86) (2012) (citation and punctuation omitted). Merely raising the issue in a motion for new trial does not preserve the claim for appellate review. See Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914) (1989). Although Jones states in his appellate brief that he timely objected to these two witnesses’ testimony, the record does not support this assertion. Consequently, Jones failed to preserve for appellate review his objections to the testimony of the two witnesses. See Jeffers, 290 Ga. at 314 (4) (a).
Jones did object at trial to the testimony of the other two outcry witnesses (a church acquaintance and a friend of A. M.). The trial court denied the objection, ruling the testimony admissible as evidence of prior consistent statements by A. M.
At the time of Jones’s trial in 2012, Georgia law
allowed certain prior consistent statements of a witness to be admitted as substantive evidence. . . . [A] witness’s prior consistent statement is admissible only where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.
A witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. . . . [T]o be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive.
Cowart, 294 Ga. at 339-340 (4) (a) (citations and punctuation omitted).
During her cross-examination of A. M., Jones’s trial counsel challenged the veracity of A. M.’s trial testimony and questioned her about a meeting between her and the district attorney that had taken place shortly before trial, implying that the meeting might have shaped A. M.’s testimony. The trial court held that this line of questioning raised the issue of recent fabrication, thereby permitting the admission of evidence of A. M.’s earlier statements that were consistent with her testimony at trial. Jones makes no argument in his appellate brief for why it was improper for the trial court to admit the evidence under the prior consistent statement exception to the hearsay rule, and we find no abuse of discretion. See Kidd v. State, 292 Ga. 259, 260-261 (2) (736 SE2d 377) (2013).
3. Sustained objections to testimony.
Jones argues that the trial court erred in sustaining the state’s objections to three cross-examination questions posed by his trial counsel. But as detailed below, Georgia’s Rape Shield Statute barred the evidence that Jones’s trial counsel sought to elicit with these questions — evidence relating to the past sexual behavior of A. M.’s sister, K. R.
The trial court sustained objections to the following questions: (1) “But around this time [K. R. was] having sex with boys?” (2) “You had heard rumors about [K. R.] having sex with the boys, hadn’t you?” (3) “Did [A. M.] ever tell you about a situation with her and her sister at school that she was starting to get in trouble for?” With these questions, Jones’s trial counsel sought to show that A. M. and her
In this case, the state prosecuted Jones for the rape of K. R., among other charges. The Rape Shield Statute in effect in Georgia at the time of trial,
the court, following [a statutorily-specified] procedure . . . [found] that the past sexual behavior directly involved the participation of the accused and [found] that the evidence expected to be introduced support[ed] an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.
The
4. Jury charge.
Jones argues that the trial court erred in refusing to give one of his requested jury charges. It appears from transcripts in the record that Jones filed a written request for the charge, but the appellate record does not contain a copy of the charge at issue (or any other charge requested by either the prosecution or the defense). Nevertheless, in their briefs the state and Jones agree that the requested charge read as follows:
Delay in reporting [alleged/a4] crime is one circumstance that you must consider in determining the credibility of the alleged victim. That delay may be explained, however, with the decision on credibility left to the jury.
The trial court declined to give the charge on the ground that it was not a pattern charge and it was “inappropriate for [him] to charge on specific evidence[.]”
Although Jones’s trial counsel argued at the charge conference that the trial court should give the charge, she did not object to the jury charge that the trial court eventually gave. Our Supreme Court has explained the limits of our appellate review in this circumstance:
Because an objection voiced at the charge conference does not preserve objections to the charge as subsequently given, the failure to object to the charge as given precludes appellate review unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Despite the lack of objection below, the omission of the jury instruction . . . was raised on motion for new trial and enumerated as error and argued on appeal in this case. Consequently, we will review the failure to [give the requested charge], but we review only for plain error, meaning an error that is obvious, that likely affected the outcome of the proceedings, and that seriously affects the fairness, integrity or public reputation of judicial proceedings.
Merritt v. State, 292 Ga. 327, 330-331 (2) (737 SE2d 673) (2013) (citations and punctuation omitted).
Judgment affirmed. Miller, P. J., and McMillian, J., concur.
DECIDED MARCH 8, 2017.
Kenneth W. Sheppard, for appellant.
Robert D. James, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.