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Bill v. State

Court of Appeals of Georgia, Third Division

April 20, 2017

BILL
v.
THE STATE.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Andrews, Judge.

         Following a jury trial, Jason Anthony Bill was convicted of kidnapping, aggravated assault, aggravated sodomy, aggravated sexual battery, rape, and false imprisonment. Bill appeals, challenging several evidentiary rulings, the denial of his motion for mistrial, and the trial court's jury instructions. Finding no error, we affirm.

         Viewed favorably to the jury's verdict, see Moorer v. State, 290 Ga.App. 216 (659 S.E.2d 422) (2008), the evidence shows that the victim, who was originally from El Salvador and speaks no English, lived at the same Cobb County apartment complex as Bill and worked at a nearby bar. Bill, a Cobb County Sheriff's deputy, occasionally visited the bar.

         On the evening of July 14, 2008, Bill entered the bar while the victim was working. He appeared angry and drunk, and the bar's owner asked him to leave. Bill left, but returned a short time later with a gun. He called the victim over, displayed his badge, and grabbed her arm. Bill then placed her in his truck and locked the doors.

         At that point, the victim believed she was under arrest. Instead of taking her to jail, however, Bill drove to his apartment, where he handcuffed the victim and told her to "suck" his penis. When the victim refused, Bill pulled out his gun, and she complied. He then beat the victim with his hands and a belt, tore off her clothing, and tried to choke her with her brassiere. Bill also raped her and placed his finger in her anus. To prevent escape, Bill bound the victim's hands to her feet with a rope and gagged her by stuffing a shirt in her mouth. Eventually, however, she managed to untie the rope and ran from Bill's apartment, knocking on neighboring apartment doors for help.

         An 11-year-old girl testified that she was watching television at her grandmother's apartment just before midnight on July 14, 2008, when she heard a knock at the door. She opened the door and found the victim, who was naked, handcuffed, and appeared to have been beaten. The girl's grandmother gave the victim a robe, and the police were called. Although the family could not understand the victim, who was speaking in Spanish, she pointed at a man on a motorcycle that was slowly circling the complex. When the police arrived, the grandmother's boyfriend told the officers where the motorcycle had gone. The police found Bill next to the motorcycle and placed him under arrest. The victim subsequently identified Bill as her attacker.

         Bill testified at trial, denying that he assaulted the victim. He asserted that he had previously paid the victim for sex and that although they had planned another sex-for-money encounter for July 14, 2008, they only kissed that night. The jury, however, found him guilty of kidnapping, aggravated assault, aggravated sodomy, aggravated sexual battery, rape, and false imprisonment.

         1. In several claims of error, Bill argues that the trial court improperly excluded evidence that the victim had engaged in prostitution. Specifically, he sought to introduce testimony that (a) after the assault, someone had written "hooker" on her apartment door, and (b) a previous roommate had kicked her out of her residence because she was a prostitute and brought too many men to the home.

         (a) Pursuant to former OCGA § 24-2-3 (a), the rape shield statute applicable at the time of trial, [1] evidence relating to a victim's past sexual behavior generally is not admissible in a rape trial, either as direct evidence or on cross-examination of the victim or other witnesses. Past sexual behavior, however, may be admitted when the trial court finds that such behavior "directly involved the participation of the accused and . . . 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." Former OCGA § 24-2-3 (b).

         Bill does not argue that evidence of the victim's prostitution demonstrates consent; in fact, he testified that no sexual relations occurred on July 14, 2008. Instead, he claims that the prostitution evidence was relevant to show that someone else could have been angry at the victim and caused her injuries. According to Bill, "any one of the men who came into contact with [the victim through her prostitution] could have been responsible for her physical and/or psychological injuries."

         But even if such evidence might be admissible under certain circumstances, despite the limitations of the rape shield statute, the trial court found it irrelevant, speculative, and highly prejudicial here. We agree. Bill has pointed to nothing - other than rank speculation - linking the July 14, 2008 sexual assault to the victim's prior prostitution with other men. There was no evidence that she was previously threatened or physically injured by any of these individuals. Simply put, Bill has drawn no nexus between her history of prostitution and the assault in this case. The trial court, therefore, properly excluded the evidence. See Moorer, supra at 219 (4) (evidence of victim's prior prostitution not relevant to aggravated assault charge where defendant "failed to show any nexus whatsoever between the alleged prostitution and the conclusion that someone else could have inflicted the victim's injuries"); Stargel v. State, 210 Ga.App. 619, 622 (5) (436 S.E.2d 786) (1993) (trial court properly excluded evidence where only "possible relevance was purely speculative").

         Moreover, even if some nexus had been shown, exclusion of this evidence was harmless. Although the trial court refused to admit certain prostitution-related testimony, it allowed Bill to assert that he had previously paid the victim for sex. Evidence of her prostitution, therefore, was before the jury, and further testimony regarding this behavior would have been cumulative. Accordingly, its exclusion provides no basis for reversal. See Brooks v. State, 313 Ga.App. 789, 794 (2) (b) (723 S.E.2d 29) (2012) (defendant not harmed by exclusion of evidence that was cumulative of defendant's trial testimony).

         (b) Bill claims that the trial court erred in preventing him from impeaching the victim with the prostitution-related evidence. According to Bill, the victim opened the door to cross-examination "concerning [her] prior acts of prostitution" when she denied having sex with him before July 14, 2008. It is true that evidence of prior sexual behavior may be admissible to impeach a victim's contradictory trial testimony. See Tidwell v. State, 306 Ga.App. 307, 311 (5) (701 S.E.2d 920) (2010). The "impeachment" evidence cited by Bill, however, does not relate to his prior contact with the victim. It involved general allegations that she had engaged in prostitution. Bill has not cited us to any place in the record where the victim denied being a prostitute; she simply stated that she had not had sexual relations with him. The general prostitution evidence, therefore, did not contradict ...


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