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Frye v. State

Court of Appeals of Georgia, Fourth Division

February 26, 2018

FRYE
v.
THE STATE.

          DILLARD, C. J., RAY and SELF, JJ.

          Dillard, Chief Judge.

         Following a trial by jury, Jeremy David Frye was convicted of child molestation and aggravated sexual battery of his minor granddaughter, Co. D. Frye now appeals from the convictions, arguing that the trial court erred in excluding certain testimony under Georgia's Rape Shield statute. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the record reflects that Frye's granddaughters, Ca. D. and Co. D. (who are cousins born five years apart), would occasionally spend the night at their grandparents' house. Ca. D. alleged that when she was six years old and stayed at her grandparents' house, Frye would come into the room where she slept and touch her breasts and genital area under her clothes while she pretended to sleep. Likewise, Co. D. alleged that when she was approximately eight to ten years old, Frye touched her breasts and vagina, sometimes inserting his finger into her vagina, all while she too pretended to sleep.

         According to Co. D., in addition to touching her inappropriately, Frye also took Polaroid photographs of her when she got out of the shower, and he kept the pictures in a little box under the seat of his work truck so that he could look at them during the day. Co. D. testified that Frye told her that she would "look stupid" if she ever told anyone about what he had done and that he used to tell sexual jokes in her presence. Additionally, when Frye was alone with Co. D. on one occasion, he spoke to her about "sex toys and how you use them."[2]

         Neither Ca. D. nor Co. D. immediately told anyone about Frye's acts of sexual abuse; however, at some point, they confided in each other. Then, in 2012 (when she was approximately ten years old), Ca. D. also confided in a friend and, thereafter, she also told her mother. At that point, Co. D., who was 14 years old, also told her parents when they confronted her after learning about Ca. D.'s disclosure. The girls' parents then notified law enforcement, and an investigation ensued.

         Frye was subsequently indicted on two counts of child molestation as to Ca. D., one count of aggravated sexual battery as to Co. D., and one count of child molestation as to Co. D. The jury acquitted Frye on the charges of child molestation as to Ca. D., but found him guilty on the charges of aggravated sexual battery and child molestation against Co. D. This appeal follows the trial court's denial of Frye's motion for new trial.

         When a criminal conviction is appealed, the defendant no longer enjoys a presumption of innocence.[3] And the relevant question is whether, "after reviewing 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."[4] As a result, we do not weigh the evidence or determine witness credibility, and the jury's verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.[5]

         With these guiding principles in mind, we turn now to Frye's sole enumeration of error, which is that the trial court committed reversible error by determining that certain proposed testimony was inadmissible because it would violate OCGA § 24-4-412-i.e., Georgia's Rape Shield statute.[6] We disagree.[7]

          In interpreting OCGA § 24-4-412, we do so according to its terms, giving the words contained in the statute their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.[8] Put another way, when we consider the meaning of a statute, we must (1) "presume that the General Assembly meant what it said and said what it meant, "[9] and (2) "read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would."[10] As our Supreme Court recently explained,

[i]n our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law-constitutional, statutory, and common law alike-that forms the legal background of the statutory provision in question.[11]

         Thus, when we speak of discerning "the intent of the legislature"[12] (inadvisable as it may be to do so[13]), we are referring to interpreting the relevant statutory text within its contextual backdrop.[14]

         And here, we are called upon to interpret Georgia's revised Rape Shield statute, which contains only minimal changes and left the former version of the statute largely untouched."[15] Indeed, like former OCGA § 24-2-3 (a) of our old Evidence Code, OCGA § 24-4-412 (a) of the new Evidence Code provides that in prosecutions for rape, aggravated assault with the intent to rape, aggravated sodomy or sodomy, statutory rape, aggravated child molestation or child molestation, incest, sexual battery, or aggravated sexual battery, "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." OCGA § 24-4-412 (a) also provides that "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."[16]

          The Supreme Court of Georgia has explained that, "to the extent that the new Georgia evidence rules deviate from the old Evidence Code and borrow from the text of the federal evidence rules . . ., we look for guidance to the decisions of the federal appellate courts, particularly the United States Supreme Court and the Eleventh Circuit, interpreting the federal rules in question."[17] But the Rape Shield law in the old and new Evidence Codes are nearly identical, and the Supreme Court of Georgia has made clear that there are "provisions of the new Evidence Code [that] were carried over from our old Evidence Code, and when courts consider the meaning of those provisions, they may rely on Georgia decisions under the old Code."[18] To that end, as now-Justice Peterson recently explained in a case decided under the new Evidence Code, there is an exception to the Rape Shield law in that "such evidence may be admissible to show the victim's lack of credibility [when] the victim has made prior false allegations of child molestation."[19] Indeed, as our Supreme Court explained when it adopted this exception under the old Evidence Code in Smith v. State, [20] "prior false allegations by the victim" do not involve the victim's past sexual conduct, but instead concern "the victim's propensity to make false statements regarding sexual misconduct."[21]

          The State suggests that the common-law exception from Smith no longer applies or controls in the face of our new Evidence Code and its inclusion of OCGA § 24-6-608.[22] But, nevertheless, the State argues that the probative value of Frye's proposed evidence was substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury.[23] We will not, however, assess the admissibility of the proposed evidence under OCGA § 24-6-608[24] because Frye neither argued before the trial court nor this Court that the evidence was admissible under that statute. Instead, Frye has only ever maintained that the evidence he sought to admit fell under the common-law exception to the Rape Shield law, and there is no "wrong for any reason" doctrine.[25] In any event, ...


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