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McAllister v. State

Court of Appeals of Georgia, Third Division

June 25, 2019

McALLISTER, JR.
v.
THE STATE.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          DILLARD, CHIEF JUDGE.

         Following a trial by jury, David Billy McAllister, Jr. was convicted of rape, incest, and making a false statement to law enforcement, and then sentenced as a recidivist. McAllister appeals from his convictions, arguing that the trial court erred by (1) admitting evidence of a prior conviction for statutory rape; (2) denying his motion in limine as to the State's proposed cross-examination of an expert witness; (3) permitting the State to impeach him with prior convictions; (4) sustaining an untimely objection by the State to witness testimony; (5) failing to rebuke the State during closing argument; and (6) denying his motion for new trial when he received ineffective assistance of counsel in a number of instances. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's guilty verdict, [1] the record shows that in December 2014, then six-year-old B. A. disclosed to a counselor at her after-school program that her father, McAllister, had "put his private on [her] private." Then, shortly after making this initial outcry, B. A. asked her mother about "yogurt stuff that comes out of daddy." Later, B. A.'s disclosure changed from McAllister placing his private on her private to placing it in her private, and was made to a social worker that she began to see for counseling. B. A. was subsequently questioned by a DFCS caseworker, and she again repeated that her father "put his private part in [her] . . . private parts, and it hurt." B. A. also told the caseworker that McAllister told her not to tell anyone what he had done. B. A. then testified along these same lines at trial-that her father "put his private in mine," it made her "sad," and it made her body hurt.

         McAllister denied having sexual contact with his daughter when he was questioned by police, and he testified in this same manner at trial. The jury ultimately convicted him of the counts set forth supra , and he was charged as a recidivist due to two prior convictions for statutory rape and violating conditions of the sex- offender registration. This appeal follows the denial of McAllister's motion for new trial.

         On appeal from a criminal conviction, we view the evidence in "the light most favorable to the jury's verdict, and the defendant is no longer presumed innocent."[2]Thus, in evaluating the sufficiency of the evidence, we do not assess witness credibility or weigh the evidence, but only determine "if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt."[3] And the 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."[4] With these guiding principles in mind, we turn now to McAllister's enumerations of error.

         1. McAllister first contends that the trial court erred by admitting prior-acts evidence of a conviction for statutory rape, arguing that its probative value was substantially outweighed by its prejudicial effect. We disagree.

         Here, the State provided pretrial notice that it intended to "introduce evidence of other crimes, wrongs or acts in the trial" under OCGA § 24-4-413, OCGA § 24-4-414, and OCGA § 24-4-404 (b). This notice, to which McAllister objected, included two separate acts by McAllister that resulted in an adjudication of juvenile delinquency and a criminal conviction for statutory rape.[5] On appeal, McAllister narrows his challenge to the admission of the prior conviction for statutory rape. At trial, the State ultimately did not introduce or discuss the juvenile disposition because it was unable to locate the witness to present evidence as to that prior act. But as to the statutory-rape conviction, McAllister maintains that the probative value of the evidence was substantially outweighed by the prejudicial effect.

         During the pretrial hearing on the State's proposed prior-acts evidence, McAllister presented testimony by a licensed clinical social worker specializing in sexual deviancy, and who previously treated McAllister as part of a program from 2007 until 2011. This expert testified at length about what he considered McAllister's progress in that treatment program, the prior acts of McAllister that the State sought to use at trial, and his conclusion that, upon completing treatment, he believed McAllister had a low risk of offending again as an adult.

         On cross-examination, the expert agreed with the State that McAllister's act of statutory rape was "situational" in that it was perpetrated against a victim to whom he had access. Additionally, the expert testified that a 17-year-old engaging in consensual sex with a 14-year-old "isn't predatory" but "still indicate[s] that there's poor judgment and crossing boundaries and typically, you know, a desire." Thus, although such an offense is not technically considered predatory, the social worker testified that "we really don't look at an offense being consensual because technically an offense can't be consensual," and that there "has to be more power and an advantage of the abuser on the other person," which would "make it not be consensual just by definition." At the conclusion of the expert's testimony, the State presented nothing in rebuttal.

         Ultimately, the trial court concluded that the State sought to admit the prior acts to show "lustful disposition, bent of mind, intent, and motive, and to corroborate the victim's testimony." The court initially concluded that the proposed evidence met the criteria for admission under OCGA § 24-4-413 or OCGA § 24-4-414. Thereafter, the court also concluded that, under OCGA § 24-4-403, the prejudicial effect did not substantially outweigh its probative value and, in doing so, mentioned that McAllister could call his expert witness to testify at trial in order to "blunt the prejudicial effect of the evidence."

         At trial, prior to the introduction of the testimony regarding the statutory rape, the trial court gave a limiting instruction to the jury as to its permissible use of the evidence.[6] The State then presented testimony from a 31-year-old woman who knew McAllister when she was 13 and he was 17. She testified that while the two of them were alone together in a mutual friend's bedroom, they engaged in sexual intercourse, which had been McAllister's idea. She further explained that she "didn't want to" and that "it wasn't something [she] was interested in," but that she "didn't exactly try to stop him." Her parents later discovered what occurred, and McAllister was subsequently charged with and convicted of statutory rape.

         McAllister argues that the trial court erred in concluding that the probative value of this evidence was not substantially outweighed by its prejudicial effect. But he does not challenge the court's conclusion that this evidence was permissible under OCGA § 24-4-413 or OCGA § 24-4-414. And under our "new" Evidence Code, which is applicable in this case, [7] "[a] trial court's decision to admit other acts evidence will be overturned only [when] there is a clear abuse of discretion."[8] OCGA § 24-4-413 provides as follows:

In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.[9]

         This Code Section goes on to provide that "offense of sexual assault," as used in the

         Code Section, "means any conduct or attempt or conspiracy to engage in" the following:

(1) Conduct that would be . . . [rape, sodomy or aggravated sodomy, statutory rape, sexual assault, incest, sexual battery, or aggravated sexual battery];[10]
(2)Any crime that involves contact, without consent, between any part of the accused's body or an object and the genitals or anus of another person;
(3) Any crime that involves contact, without consent, between the genitals or anus of the accused and any part of another person's body; or
(4)Any crime that involves deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.[11]

         Similarly, OCGA § 24-4-414 provides that "[i]n a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused's commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant."[12] And this Code Section goes on to define "offense of child molestation," as used in the Code Section, to "mean[ ] any conduct or attempt or conspiracy to engage in" the following:

(1) Conduct that would be . . . [child molestation or aggravated child molestation, enticing a child for indecent purposes, sexual exploitation of children, computer or electronic pornography and child exploitation, or obscene telephone contact with a child[13];
(2)Any crime that involves contact between any part of the accused's body or an object and the genitals or anus of a child;
(3)Any crime that involves contact between the genitals or anus of the accused and any part of the body of a child; or
(4)Any crime that involves deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child.[14]

         The language of both statutory provisions creates a "rule of inclusion," thus providing a strong presumption in favor of admissibility by explaining that such evidence "shall be admissible."[15] And in cases to which OCGA § 24-4-413 and OCGA § 24-4-414 are applicable, the provisions of these Code sections supersede the provisions of OCGA § 24-4-404 (b), which generally provides that

[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

         Indeed, as we have previously explained, "[a]lthough lustful disposition is not one of the purposes specifically set out in OCGA § 24-4-404 (b) for the admission of other acts, OCGA § 24-4-413 provides an exception to the general rule in sexual assault cases and allows the admission of propensity evidence."[16] Likewise, we have concluded that "OCGA § 24-4-414(a) is the more specific statute regarding admission of prior acts of child molestation and is therefore controlling over OCGA § 24-4-404 (b)."[17]

         As previously mentioned, McAllister challenges the admissibility of the statutory-rape evidence only to the extent that the trial court failed to rule that its probative value was substantially outweighed by its prejudicial effect. OCGA § 24-4-403 permits exclusion of relevant evidence when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Importantly, the major function of OCGA § 24-4-403 is to "exclude matters of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect"[18] due to the danger that "the jury may convict the defendant not for the offense charged but for the extrinsic offense, because the jury may feel that the defendant should be punished for that activity even if he is not guilty of the offense charged."[19] But the decision as to whether to exclude such evidence under this provision "lies within the discretion of the trial court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness."[20]

         The Supreme Court of Georgia has recently reiterated the distinction between the related concepts of relevance and probative value as follows:

Relevance is a binary concept-evidence is relevant or it is not-but probative value is relative. Evidence is relevant if it has "any tendency" to prove or disprove a fact, whereas the probative value of evidence derives in large part from the extent to which the evidence tends to make the existence of a fact more or less probable. Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value.[21]

         Further, our Supreme Court has explained that "the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered."[22] Additionally, probative value depends on "the marginal worth of the evidence-how much it adds . . . to the other proof available to establish the fact for which it is offered."[23] Put another way, "[t]he stronger the other proof, the less the marginal value of the evidence in question."[24] Furthermore, probative value also depends upon the need for the evidence, such that "[w]hen the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence."[25]

         When we review a trial court's decision under OCGA § 24-4-403, we examine whether the trial court "properly considered all the circumstances surrounding the extrinsic act evidence, including the similarities between the charged act and the extrinsic act, the remoteness in time between the charged act and the extrinsic act, and the prosecution's need for the extrinsic act evidence."[26] And in doing so, we must be mindful that the exclusion of relevant evidence under OCGA § 24-4-403 is an "extraordinary remedy which should be used only sparingly, since it permits the trial court to exclude concededly probative evidence."[27] Thus, we look at the evidence in "the light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact."[28]

         Here, the trial court considered each of the factors delineated above. And in doing so, the court acknowledged that the facts of the proposed "other acts" evidence were dissimilar to the relevant charges, which decreased the probative value of the evidence. The trial court also acknowledged that the temporal remoteness of the evidence-15 years for the statutory rape-likewise decreased its probative value. Finally, the trial court noted that the State argued the evidence was probative of McAllister's "intent and motive to sexually abuse children to whom he has access" and that he intended to attack the victim's credibility, which "heightened" the probative value of the evidence.

         In considering the State's argument, the trial court noted that "[a]side from countering attacks on the victim's credibility, it is unclear from the record the extent to which the State 'needs' this other acts evidence." Nevertheless, the court ultimately concluded that both a limiting instruction and McAllister's potential to call his expert witness would "blunt the prejudicial effect of the evidence," and that the "probative value of the other acts evidence [was] not substantially outweighed by the risk of undue prejudice." We will now evaluate these considerations in turn, keeping in mind the relevant-and exceedingly deferential-standard of review.

         (a) The similarities. As the trial court acknowledged, the facts of McAllister's statutory-rape conviction were dissimilar to the allegations he faced at trial. The statutory rape was committed by McAllister when he was 17 years old with a 13-year-old female with whom he was socializing at a home with mutual friends. But here, McAllister was indicted for raping his 6-year-old daughter in a hotel room when he was 32 and separated from the mother. Thus, while both incidents involved the act of sexual intercourse with a minor, one involved an underaged teenager and the other a pre-pubescent child; one involved McAllister as a 17-year-old and the other as a 32-year-old adult; and one involved an underaged acquaintance with whom McAllister was socializing and the other his own daughter. As a result, just as the trial court concluded, the probative value of the statutory-rape evidence was decreased somewhat by its dissimilarity to the charged offense.[29]

         (b) The remoteness in time. The trial court also correctly concluded that the remoteness in time between the two incidents-15 years between 1999 and 2014- decreased the probative value of the statutory rape evidence, in light of the dissimilarity between the prior conviction and the charges at issue in the trial.[30]

         (c) The State's need. As previously noted, the trial court acknowledged the State's argument that the statutory-rape evidence was probative of McAllister's "intent and motive to sexually abuse children to whom he has access" and that he intended to attack the victim's credibility. And in the court's view, the planned attack on the victim's credibility "heightened" the probative value of the evidence. But the court went on to note that, "[a]side from countering attacks on the victim's credibility, it is unclear from the record the extent to which the State 'needs' this other acts evidence."

         It is true, of course, that when the defendant seeks to attack a victim's credibility, the State has an increased need to introduce evidence of prior acts.[31] Thus, the trial court was correct to weigh the defendant's stated intent to attack the victim's credibility in favor of admitting the statutory-rape evidence.

         (d) The ultimate conclusion. Despite the diminished probative value of the statutory-rape evidence, [32] we cannot conclude that the trial court abused its discretion in admitting this evidence in light of the State's need for the evidence (i.e., as a result of the defendant's stated intent to attack the credibility of the victim, his own daughter), the limiting instructions given to the jury by the court, and the strong statutory presumption in favor of admissibility.[33] Moreover, the dissimilarity between the statutory rape and the charges at issue arguably lessened the likelihood that the jury would be incited to make an irrational decision.[34] Likewise, the jury knew that McAllister had been convicted of and punished for his commission of the statutory rape, "making it less likely that the jury would want to punish [him] for this past conduct rather than the charged crimes."[35]

         For all these reasons, McAllister has not established that the trial court abused its discretion by admitting evidence of the past statutory rape.

         2. Next, McAllister argues that the trial court erred by denying his motion in limine as to the State's anticipated cross-examination of his proposed expert witness. Again, we disagree.

         After the trial court concluded that it would permit the admission of the prior act discussed in Division 1, supra, McAllister filed a motion in limine in anticipation of calling his expert witness to-as the trial court suggested in its order-"blunt the prejudicial effect of the evidence." This motion sought to limit the State's cross-examination of the expert witness as to the "additional prior acts which the State does not intend to introduce at trial," which the State had been permitted to inquire about over objection on cross-examination at the prior hearing. McAllister asserted that because these other prior acts were "impermissible character evidence," they should be excluded. When the trial court denied McAllister's motion, he elected to not call the expert to testify at trial.

         Because McAllister did not call the expert to testify at trial, he waived this alleged error.[36] Indeed, without the benefit of the witness's testimony, our review would be entirely speculative when (1) we do not know what the trial testimony would have been; (2) the trial court might have altered its initial ruling as the case unfolded; (3) the State might not have cross-examined the expert as planned; and (4) even without these other difficulties, we would be unable to conduct "harmless error" review because we cannot discern the impact any allegedly erroneously admitted evidence would have had.[37] As our Supreme Court has recognized, "[h]aving a full factual context is essential to meaningful appellate review of the trial court's evidentiary ruling."[38] Thus, in the absence of testimony from McAllister's expert, this enumeration presents nothing for us to review.[39]

         3. McAllister also argues that the trial court erred by permitting the State to impeach his testimony, under OCGA § 24-6-609, with a second statutory rape, a burglary conviction, and a conviction for violations of the requirements of the sex-offender registry.[40] Yet again, we disagree.

         OCGA § 24-6-609 provides that a defendant who testifies may be impeached with prior convictions for crimes "punishable by death or imprisonment in excess of one year under the law under which the witness was convicted," but only after the trial court determines that "the probative value of admitting the evidence outweighs its prejudicial effect to the accused."[41] This Code Section further provides that convictions older than ten years are inadmissible unless the trial court determines, "in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."[42]

         Here, the record shows that prior to McAllister's testimony, the trial court conducted a hearing outside the presence of the jury to consider the State's request to present the convictions for statutory rape, burglary conviction, and violation of the sex-offender registration requirements. The statutory-rape and burglary convictions were part of the same case that resulted in McAllister's previously discussed conviction for statutory rape, although it concerned a different victim, and the burglary charge was based upon entering a home in order to commit statutory rape. This conviction was, once again, based upon an incident that took place in 1999, and McAllister entered a plea of guilty to the charges in 2000. The trial court concluded that because of the dissimilarity between the statutory rape and the current charges, and because the credibility of the victim and McAllister were central to the case, it would permit the use of this conviction for purposes of impeachment.

         As for the conviction for violation of the sex-offender registry, arguments showed that it was based on McAllister's failure to timely register a change in employment. This conviction, too, was more than ten years old. The State argued that the prejudicial effect of this evidence was low because McAllister had already informed the jury during opening statements that he was a registered sex offender, and that it was relevant to credibility because McAllister knew he was required to inform the ...


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