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State v. Almanza

Court of Appeals of Georgia, Fifth Division

October 31, 2017

THE STATE
v.
ALMANZA.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          BRANCH, JUDGE.

         This appeal arises out of Antonio Tapia Almanza's indictment in Cobb County for child molestation, incest, aggravated sexual battery, statutory rape, and aggravated child molestation. Following that indictment, Almanza's alleged victim (Almanza's stepdaughter) and her mother (Almanza's wife) left Cobb County, and the District Attorney's subsequent efforts to locate these witnesses have been unsuccessful. The State therefore filed a motion in limine seeking an order that would allow prosecutors to introduce into evidence the testimony of two of the child's treating physicians as to statements made to the doctors by the child's mother and in which the mother related both the child's allegations of abuse and the fact that the child had identified Almanza as her abuser. Following a hearing at which both physicians testified, the trial court granted that motion in part and denied it in part. The State now appeals, asserting that the trial court erred when it found that those portions of the mother's statements that identified Almanza as the perpetrator of the alleged crimes did not fall within the hearsay exception found in OCGA § 24-8-803 (4). For reasons explained more fully below, we affirm the trial court's order.

         We review a trial court's ruling as to the admissibility of hearsay evidence only for an abuse of discretion. See Tanner v. State, __Ga.__(Case No. S17A1024, decided August 28, 2017); Allen v. State, 247 Ga.App. 10, 12 (1) (543 S.E.2d 45) (2000). Such an abuse of discretion "occurs where the trial court's ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law." Chua v. Johnson, 336 Ga.App. 298, 299 (784 S.E.2d 449) (2016) (citation and punctuation omitted).

         The relevant facts are undisputed and show that in or about May 2014, Almanza's stepdaughter reported to her mother that approximately one year earlier Almanza had molested her on two occasions. The mother reported these accusations to law enforcement, who arrested Almanza on May 28, 2014. Police also instructed the mother to take the child for a physical exam at Children's Healthcare of Atlanta ("CHOA"), which the mother did on May 29, 2014.

         After granting the State several continuances, the trial court set trial for Monday, May 23, 2016. On Friday, May 20, the State filed both a motion for a continuance and the motion in limine that gave rise to this appeal. At the October 2016 hearing on its motion in limine, the State presented the testimony of Dr. Lynward Barrett, the pediatric emergency room physician who examined the child at CHOA in May 2014. Dr. Barrett testified that the mother reported that her daughter had told her that Almanza had molested her on two occasions by touching the child's vagina and by placing his penis "inside of her." The mother further related that, according to the child, these acts had taken place approximately one year earlier. Dr. Barrett performed a physical exam of the child, consulted with a social worker to make sure that law enforcement was involved and that the alleged abuser no longer had access to the child, and referred the child for psychological counseling. According to Dr. Barrett, he obtained all his information from the mother, he asked questions only to the mother, and he did not recall the child saying anything either before, during, or after the exam.[1]

         The victim's regular pediatrician, Charles Richards, also testified and stated that he had seen the child and her mother in his office on June 6, 2014, for treatment of the child's viral symptoms, including a fever, headaches, and muscle aches.[2] Dr. Richards further testified that as he was finishing his exam of the child, the mother became emotional and stated that the child had recently reported that approximately one year earlier Almanza had raped her on two different occasions.[3] Richards testified that all of the information he received regarding the allegations of sexual molestation came from the mother and that the child did not say anything during this visit.

         Following the hearing, the trial court entered an order ruling that the doctors would be allowed to testify at trial as to any findings they made during the physical exam of the child and to the mother's statements regarding the fact that the child had reported being sexually abused. The court further ruled, however, that the physicians could not testify as to "[a]ny identification of [Almanza] as the abuser." The State now appeals that ruling.

         The State sought to introduce the out-of-court statements at issue under subsection 803 (4) of Georgia's current evidence code, which went into effect January 1, 2013. That evidentiary rule, which is substantially similar to Fed. Rule of Evid. 803 (4), [4] provides that hearsay statements are admissible "even though the declarant is available as a witness" if they are

made for purposes of medical diagnosis or treatment and describ[e] medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

OCGA § 24-8-803 (4). The language of OCGA § 24-8-803 (4) is virtually identical to the former OCGA § 24-3-4, which existed as part of Georgia's previous evidence code.[5] The trial court therefore relied on cases decided under the former code section in deciding the State's motion in limine.

         Citing our Supreme Court's decision in Davis v. State, 299 Ga. 180 (787 S.E.2d 221) (2016), the State argues that the trial court erred in relying on pre-2013 precedent to deny in part its motion in limine. Davis involved the application of the sequestration rule found in OCGA § 24-6-615, which differed in several significant respects from the sequestration provision in the pre-2013 evidence code (former OCGA § 24-9-61.) After addressing the merits of the appeal, the Supreme Court expressed its frustration at the parties' failure to acknowledge the difference between the two sequestration provisions and to cite relevant law in their briefs, stating:

[T]his case was tried under our State's new Evidence Code, and the key evidence rules we must apply - OCGA §§ 24-6-615 and 24-4-403 - differ from the pertinent provisions of the old Evidence Code and instead track the analogous federal evidence rules, meaning that we will look to those federal rules and the federal case law interpreting them for guidance. Nevertheless, in their briefs to this Court, Appellant cited OCGA § 24-6-615 only in passing and failed to cite OCGA § 24-4-403; the State cited neither new rule; and neither party cited any case law interpreting these provisions of the new Evidence Code or the parallel provisions of the Federal Rules of Evidence. It may be that the result of this case would be the same if we applied the old Evidence Code and our decisions interpreting it, but if so, that is happenstance, at least without careful comparison of the old and new law. Georgia lawyers do this Court no favors - and risk obtaining reversible evidence rulings from trial courts - when they fail to recognize that we are all living in a new evidence world and are required to analyze and apply the new law. It may be hard to comprehend that, when it comes to trials and hearings held after January 1, 2013, the most pertinent precedent to cite on an evidentiary issue may be a decades-old decision of the Eleventh Circuit (or even the old Fifth Circuit), instead of a week-old unanimous decision of this Court (if we were deciding the appeal of a case tried before 2013 and governed by the old rules, as still frequently occurs).

Davis, 299 Ga. at 192 (3) (footnotes omitted; emphasis supplied).

         Relying on this language, the State argues that the trial court erred as a matter of law when it relied on cases decided under former OCGA § 24-3-4; that Davis mandates that in the absence of a Georgia appellate case addressing the post-2013 evidentiary rule at issue, trial courts are required to look at federal precedent when interpreting and applying such a rule; and that under relevant federal precedent, the mother's statement that the child had identified Almanza as her abuser was admissible. We find these arguments to be without merit.

         The State's argument is based on a misinterpretation of Davis. That case did not invalidate the precedential value of all cases decided under Georgia's former evidence code. Instead, Davis addressed those situations where the new evidence code represents a substantive change from the prior code. In such cases, "to the extent that the new [evidentiary] rule[ ] [at issue]... borrow[s] from the text of the federal evidence rules, " courts should "look for guidance to the decisions of the federal appellate courts, particularly the United States Supreme Court and the Eleventh Circuit, interpreting the federal rule[ ] in question." Davis, 299 Ga. at 185 (2) (a) (citation omitted). In cases where there has been no substantive change to the evidentiary rule in question, however, courts "may rely on Georgia decisions under the old [Evidence] Code." State v. Frost, 297 Ga. 296, 299 (773 S.E.2d 700) (2015). See also Bradshaw v. State, 296 Ga. 650, 654 (2) (769 S.E.2d 892) (2015) (noting "the General Assembly's statement that [in enacting the new Evidence Code] it did not intend to change the substantive law of Georgia as existing on December 31, 2012, unless that law was displaced by a provision of the new Evidence Code").

         As noted previously, the hearsay exception at issue in this case does not differ substantively from its predecessor. See Milich, Georgia Rules of Evidence, §19.6 (2014) (observing that OCGA § 24-8-803 (4) "is simply a re-numbered version of pre-2013 OCGA § 24-3-4"). In deciding the admissibility of the mother's statement, therefore, the trial court properly relied on cases decided under the former evidence code. Those cases hold that statements made for the purpose of obtaining medical treatment are admissible to the extent that the speaker is relating the cause of the injury or condition requiring treatment. See Greene v. State,295 Ga.App. 803, 812 (8) (d) (673 S.E.2d 292) (2009); Thomas v. State,288 Ga.App. 602, 609-610 (4) (654 S.E.2d 682) (2007); Payne v. State,273 Ga.App. 483, 486 (4) (615 S.E.2d 564) (2005). A medical professional may therefore testify, for example, that the victim reported being raped or assaulted. See Greene, 295 Ga.App. at 812 (8) (d); Thomas, 288 Ga.App. at 609 (4); Opio v. State,283 Ga.App. 894, 899 (1) (d) (ii) (642 S.E.2d 906) (2007); Miller v. State,194 Ga.App. 533, 534 (2) (a) (390 S.E.2d 901) (1990). Additionally, medical personnel may testify as to statements made to them describing the type of weapon used against the victim or the description of the acts that resulted in the victim's injuries. See Bryant v. State,304 Ga.App. 456, 462 (4) (696 S.E.2d 439) (2010) (nurse could testify that victim reported "her assailant had 'pushed her into the furniture'" as the victim was explaining "both the nature and origin of some of her injuries"); Greene, 295 Ga.App. at 812 (8) (d) (physician who treated victim for bruising around her neck could testify that victim reported being strangled); Payne, 273 Ga.App. at 486 (4) (physician who treated victim for chemical burns could testify "that he received a report that" a mixture of liquids, including bleach, "had been thrown into [the victim's] face"). Similarly, treating practitioners may also testify as to alleged acts of molestation or ...


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