Belcher v. the State.

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

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

February 26, 2018

In the Court of Appeals of Georgia
A17A1982. BELCHER v. STATE.

DILLARD, Chief Judge.

Following trial, a jury convicted Norris Kang Belcher of armed robbery,

kidnapping with bodily injury, hijacking a motor vehicle, possession of a firearm

during the commission of a felony, financial-transaction-card fraud, battery, and

possession of a firearm by a convicted felon during a crime. Belcher appeals from

these convictions, arguing that (1) the evidence was insufficient to sustain his

convictions, and (2) the trial court erred by permitting certain testimony. 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 on November 14, 2014, Belcher, while at his mother’s house, was

overheard saying that he wanted to rob someone at gunpoint. And later that night,

Belcher—along with co-defendants Shaquille Smith and Derrius Partee—went to a

house party in Walton County, Georgia, where they encountered the victim playing

a card game.

At some point during the party, the victim left the card game to retrieve some

money from his vehicle, and while doing so, he saw the three defendants outside. The

victim then reentered the house and continued playing cards before suddenly hearing

the alarm go off on his vehicle. When he went to turn off the alarm, the victim again

saw the three defendants, who asked him whether it was his vehicle. After

disengaging the alarm and returning to the card game, the victim, who suspected that

something was amiss, informed a friend that he would be leaving shortly.2

1
See, e.g., Sowell v. State, 327 Ga. App. 532, 534 (759 SE2d 602) (2014).
2
While Belcher and the co-defendants were at the party, Partee was observed
looking at his cell phone, which he left inside the house at one point when he went
outside with Belcher and Smith. Other party guests looked at this phone when it was
left unattended and saw text messages that referenced a plan to commit a robbery.
After these text messages were read, the party was abruptly ended by the concerned
host, and his guests all left.

2
 When the victim returned to his car a final time in order to leave, he had around

$200 to $300 that he won playing cards. And once again, he was approached by the

defendants. They asked the victim for a ride, but he refused to give them one. At this

point, the defendants forced the victim into the backseat of his vehicle at gunpoint.

Belcher got into the backseat with the victim, while Smith sat in the front-passenger

seat and Partee drove. During the drive, Belcher pointed the gun at the victim’s side

and threatened to shoot him in the same place that he had been shot—telling the

victim that he would “feel the same thing that [Belcher] felt.”

The victim was then taken to another location under threats that he would be

shot and with warnings not to “try anything.” While there, the defendants began to

rummage through his car. The victim—whose phone had been destroyed by the

defendants prior to being driven away from the house party—was severely beaten by

the defendants, who took a variety of items from him (including his child’s social-

security card and birth certificate). He was then forced back into his vehicle and

driven by the defendants to a bank. There, Partee used the victim’s ATM card to

withdraw money from the ATM, and the machine took photographs during the

withdrawal.

3
 After a visit to the bank, the defendants drove the victim to a deserted location

where a struggle ensued inside of the vehicle. The victim managed to take possession

of the firearm, but he was unable to fire it at his attackers. The scuffle then spilled out

of the vehicle, and the victim was once again severely beaten by the defendants. The

victim was forced back into the car again and driven back to the first location. The

defendants then wiped down the vehicle and placed the victim into the trunk at

gunpoint. He remained in the trunk while the defendants drove to a number of

unidentified locations. When the victim was finally removed from the trunk, he was

again beaten before being released with his car. The victim’s injuries were so severe

that he threw up blood and was transported to a hospital via ambulance after

successfully making it home to his mother’s house. He remained in the hospital

overnight.

The victim did not know Belcher and Smith before the night in question, but

he knew Partee and subsequently recognized Belcher in a Facebook photograph. He

later testified that he “knew for a fact” that the person in the picture was the

individual who sat next to him in the backseat of the vehicle. The victim showed the

4
picture to law enforcement while he was still in the hospital, thus identifying Belcher

as one of the perpetrators not long after the attack. Belcher was thereafter arrested,

and law enforcement noticed his scar from a gunshot wound that matched the victim’s

description. After his arrest, Belcher contacted an acquaintance and advised her that

he had been arrested and told law enforcement that he was with her on the night of

the incident, which she later testified was not true.

Following a joint trial of the three defendants, Belcher was convicted of armed

robbery, kidnapping with bodily injury, hijacking a motor vehicle, possession of a

firearm during the commission of a felony, financial-transaction-card fraud, battery,

and possession of a firearm by a convicted felon during a crime. He now appeals from

these convictions, following the denial of his motion for new trial.3

When a criminal conviction is appealed, the appellant no longer enjoys a

presumption of innocence.4 And the relevant question is whether, after reviewing the

3
Partee and Smith are not parties to this appeal.
4
Arbegast v. State, 332 Ga. App. 414, 415 (1) (773 SE2d 283) (2015);
Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d 594) (2011).

5
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.”5

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.6 With these

guiding principles in mind, we turn now to Belcher’s enumerations of error.

1. Belcher argues that the evidence was insufficient to sustain his convictions.

We disagree.

Belcher’s only argument as to the sufficiency of the evidence is that the “sole

proof” of his involvement came from “the identification of the witness,” i.e., the

victim’s identification of Belcher as the perpetrator who sat with him in the backseat

of the car and threatened to shoot him in his side. Belcher argues that eyewitness

identifications “have been cited as the source of 70% of the convictions overturned

5
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
6
Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001); Westbrooks, 309
Ga. App. at 399-400 (1).

6
for DNA evidence,” and he provides a web address for the Innocence Project as his

only supporting citation. He continues to generally attack the victim’s identification

of Belcher as the perpetrator, again providing no citation to binding legal authority.7

But it is well established that the “testimony of a single witness is generally sufficient

to establish a fact.”8 And Belcher essentially asks this Court to second-guess the

victim’s credibility. This, we will not do. As previously noted, this Court is not at

liberty to weigh the evidence or determine witness credibility.9 Instead, we will

uphold a jury’s verdict so long as some competent evidence, even though

contradicted, supports each fact necessary to prove the State’s case.10

7
See COURT OF APPEALS RULE 25 (c) (2) (“Any enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed
abandoned.”).
8
OCGA § 24-14-8; accord Epperson v. State, 340 Ga. App. 25, 32 (2) (796
SE2d 1) (2016).
9
Miller, 273 Ga. at 832; Westbrooks, 309 Ga. App. at 399-400 (1).
10
Miller, 273 Ga. at 832; Westbrooks, 309 Ga. App. at 399-400 (1).

7
 Furthermore, in addition to the victim’s testimony, the State also presented

circumstantial evidence of guilt. Indeed, as discussed in detail supra, Belcher was

overheard to say on the night in question that he wanted to commit a robbery; Belcher

attended the party with Smith and Partee; witnesses testified to Partee’s cell phone

containing text messages that referenced a plan to commit a robbery at the party; the

ATM machine documented the relevant withdrawal of stolen money, including

photographing the individual withdrawing the funds (who the victim testified was

Partee); Belcher was observed by law enforcement as having gunshot scars on the

area of the body that was consistent with the victim’s story of the back-seat

perpetrator’s threats; and Belcher attempted to persuade an acquaintance to provide

him with a false alibi.11

11
See Olds v. State, 293 Ga. App. 884, 886 (1) (668 SE2d 485) (2008)
(“[Although] mere presence at the scene of the commission of a crime is not sufficient
evidence to convict one of being a party thereto, presence, companionship, and
conduct before and after the offense are circumstances from which one’s participation
in the criminal intent may be inferred.” (punctuation omitted)); Stuart v. State, 267
Ga. App. 463, 464 (1) (600 SE2d 629) (2004) (holding that evidence was sufficient
to sustain conviction for financial-transaction-card fraud as a party to the crime when
defendant intentionally aided and abetted same); Henry v. State, 178 Ga. App. 127,
127-28 (1) (342 SE2d 499) (1986) (holding that evidence was sufficient to sustain
conviction when scar on defendant’s body was consistent with victim’s identification
of defendant as perpetrator and her account of having cut the defendant on that part
of his body during attack); Duke v. State, 176 Ga. App. 125, 126-27 (1) (335 SE2d
400) (1985) (holding that defendant’s attempt to influence another person to give

8
 Having considered the facts of this case, we conclude that the direct and

circumstantial evidence was sufficient to sustain Belcher’s convictions for armed

robbery,12 kidnapping with bodily injury,13 hijacking a motor vehicle,14 possession of

false testimony to establish an alibi was circumstantial evidence of his guilt of having
committed burglary).
12
See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery
when, with intent to commit theft, he or she takes property of another from the person
or the immediate presence of another by use of an offensive weapon . . . .”).
13
See OCGA § 16-5-40 (a) (“ A person commits the offense of kidnapping
when such person abducts or steals away another person without lawful authority or
warrant and holds such other person against his or her will.”); OCGA § 16-5-40 (d)
(4) (“A person convicted of the offense of kidnapping shall be punished by[ ] . . .
[l]ife imprisonment or death if the person kidnapped received bodily injury.”).
14
See OCGA § 16-5-44.1 (b) (1) (“A person commits the offense of hijacking
a motor vehicle in the first degree when such person while in possession of a firearm
. . . obtains a motor vehicle from an individual or the presence of another individual
by force and violence or intimidation or attempts or conspires to do so.”).

9
a firearm during the commission of a felony,15 financial-transaction-card fraud,16

battery,17 and possession of a firearm by a convicted felon during a crime.18

2. Next, Belcher contends that the trial court committed reversible error by

permitting the State to elicit testimony that co-defendant Smith’s father attempted to

15
See OCGA § 16-11-106 (b) (1) (“Any person who shall have on or within
arm’s reach of his or her person a firearm . . . during the commission of, or the
attempt to commit[ ] . . . [a]ny crime against or involving the person of another[ ] . .
. and which crime is a felony, commits a felony and, upon conviction thereof, shall
be punished by confinement for a period of five years, such sentence to run
consecutively to any other sentence which the person has received.”).
16
See OCGA § 16-9-33 (a) (2) (B) (“A person commits the offense of financial
transaction card fraud when, with intent to defraud the issuer; a person or
organization providing money, goods, services, or anything else of value; or any other
person; or cardholder, such person[ ] . . . [o]btains money . . . by[ ] . . . [p]resenting
the financial transaction card without the authorization or permission of the
cardholder or issuer[.]”).
17
See OCGA § 16-5-23.1 (a) (“A person commits the offense of battery when
he or she intentionally causes . . . visible bodily harm to another.”).
18
See OCGA § 16-11-133 (b) (1) (“Any person who has previously been
convicted of or who has previously entered a guilty plea to any felony involving the
use or possession of a firearm and who shall have on or within arms reach of his or
her person a firearm during the commission of, or the attempt to commit[ ] . . . [a]ny
crime against or involving the person of another . . . and which crime is a felony,
commits a felony and, upon conviction thereof, shall be punished by confinement for
a period of 15 years, such sentence to run consecutively to any other sentence which
the person has received.”). The State presented evidence that Belcher had a previous
felony conviction for possession of cocaine involving the possession of a firearm.

10
influence the victim by bribing him into changing his account of what took place.

Although we agree that the trial court erred in admitting the evidence, we disagree

that the error requires reversal of Belcher’s convictions.19

The record reflects that after the victim was cross-examined and questioned at

length about statements he made to law enforcement that were inconsistent with his

trial testimony, the State sought to rehabilitate the victim by questioning him about

Smith’s father and the fact that he had been offered $5,000 by the father if he said that

Smith was not involved in the robbery and that Belcher was the mastermind. And

before hearing this testimony, the jury was instructed that it was being introduced for

the limited purpose of the jury’s consideration of the witness’s credibility and

believability.

In favor of admitting the testimony, the State argued that because cross-

examination had suggested that the victim was “just making this up and essentially

19
Because this case was tried after January 1, 2013, our new Evidence Code
applies. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence
Code applies “to any motion made or hearing or trial commenced on or after” January
1, 2013). As our Supreme Court has instructed, “[m]any provisions of the new
Evidence Code were borrowed from the Federal Rules of Evidence, and when our
courts consider the meaning of these provisions, they look to decisions of the federal
appeals courts construing and applying the Federal Rules, especially the decisions of
the Eleventh Circuit.” Hayes v. State, 298 Ga. 98, 102-03 (2) (b) (779 SE2d 609)
(2015).

11
this is just some fight between him and [defendant] Partee and a completely made-up

story, that opens the door to then bringing in why this is not a made-up story,

essentially that he’s turned down $5,000 to still come in here and tell the truth.” The

State also argued that

[i]f it was the opposite, it would be easily admissible[.] If a victim in a
crime files a lawsuit against somebody, it shows they have a financial
motive against that defendant. And defense attorneys are always going
to be able to ask a victim, you filed this lawsuit because you’re trying to
get money. Well, when the opposite a true [sic] where the victim has
turned down money, I think that should come in just like the opposite[.]
I think for that reason, the [S]tate should be able to ask [the victim]
about [Smith’s father] approaching him and offering him money to
change his testimony[.]

The State continued that the victim’s “credibility has been so attacked over and over

and over again that essentially this is something that shows that he does not have

some random motive against . . . any of these people other than just the truth.” And

again, the State argued that “[i]f someone has a . . . financial motive to lie, well, this

is the inverse of that, is that he turned down a financial motive. So that goes back to

his credibility in this case[.]”

12
 There are many acceptable methods of attacking the credibility of a witness

including, but not limited to, (1) attacking the general character for truthfulness of the

witness; (2) showing that, before trial, the witness made statements that are

inconsistent with his or her trial testimony; (3) showing bias of the witness; (4)

showing that the witness’s capacity to perceive, recall, or relate the relevant event is

impaired; and (5) contradicting the substance of the testimony by the witness.20 Some,

but not all, of these methods of impeachment are explicitly included in the rules of

20
See United States v. Lindemann, 85 F3d 1232, 1243 (II) (C) (7th Cir. 1996)
(describing methods of impeachment); Behler v. Hanlon, 199 FRD 553, 556 (A) (D.
Md. 2001) (same). See generally OCGA § 24-6-607 (providing that witness
credibility may be attacked by any party); JOHN D. HADDEN, GREEN’S GEORGIA LAW
OF EVIDENCE § 6:34 (2016-2017 ed.) (listing, as examples, different methods of
impeachment).

13
evidence.21 But our rules of evidence address the rehabilitation22 aspect of only two

of these methods—the witness’s character for truthfulness23 and prior statements

made by the witness.24 Accordingly, because “admissibility of evidence regarding a

witness’s [alleged] bias, diminished capacity, and contradictions in his testimony is

not specifically addressed by the Rules, . . . [the] admissibility is limited only by the

relevance standard of [OCGA § 24-4-402].”25

21
See OCGA § 24-6-608 (a) (1)-(2) (concerning opinion and reputation
evidence as to truthful/untruthful character); OCGA § 24-6-608 (b) (1)-(2)
(concerning conduct indicative of the witness’s bias as it is probative of truthfulness
or untruthfulness); OCGA § 24-6-609 (concerning admission of certain criminal
convictions for purposes of attacking character for truthfulness); OCGA § 24-6-613
(a), (b) (concerning prior inconsistent statements); OCGA § 24-6-622 (concerning
witness bias); see also Behler, 199 FRD at 556-58 (A) (1)-(3) (noting that the
following modes of impeachment are not directly covered by a specific rule of
evidence: impeachment by showing of bias, interest in outcome, prejudice in a
relevant way, or motive to give particular testimony; impeachment by contradiction;
and impeachment by showing incapacity).
22
See generally HADDEN, supra note 20, § 6:43 (“[T]he rules of rehabilitation
after impeachment are more restrictive than those that apply to impeachment.”).
23
See OCGA § 24-6-608 (a).
24
See OCGA § 24-6-613 (c).
25
Lindemann, 85 F3d at 1243 (II) (C); see also OCGA § 24-4-402 (“All
relevant evidence shall be admissible, except as limited by constitutional
requirements or as otherwise provided by law or by other rules, as prescribed
pursuant to constitutional or statutory authority, applicable in the court in which the
matter is pending. Evidence which is not relevant shall not be admissible.”).

14
 On appeal, Belcher takes issue with the court’s admission of the above-

referenced testimony over his objection, contending that it was an abuse of discretion

because (1) there was no evidence linking the father’s efforts to influence the victim’s

testimony to any of the defendants,26 (2) the evidence could not be used to rehabilitate

the victim, and (3) the error was not harmless because a juror testified to being in fear

for her life and was ultimately dismissed from service. We will address each of these

contentions in turn.

(a) First, Belcher’s arguments regarding the State’s failure to link the testimony

regarding Smith’s father’s attempt to influence the victim to any defendant is a

nonstarter because the State did not introduce the testimony as circumstantial

evidence of guilt.27 Instead, the State argued that it was introducing the testimony to

26
More specifically, Belcher argues that the testimony was inappropriate and
inadmissible because “a familial relationship is insufficient proof of defendant [sic]
participation.”
27
Cf. Kell v. State, 280 Ga. 669, 671 (2) (a) (631 SE2d 679) (2006) (“We
recognize in Georgia that evidence of a defendant’s attempt to influence or intimidate
a witness can serve as circumstantial evidence of guilt. Even where the defendant
does not personally make the attempt to influence or intimidate a witness, it is a
settled principle of law that an attempt by a third person to influence a witness not to
testify or to testify falsely is relevant and may be introduced into evidence in a
criminal prosecution on the issue of the defendant’s guilt where it is established that
the attempt was made with the authorization of the accused.” (citations and
punctuation omitted)); Johnson v. State, 255 Ga. App. 721, 722 (2) (566 SE2d 440)

15
rehabilitate the victim’s credibility, and the court admitted it for that purpose, giving

the jury two limiting instructions to that effect. Accordingly, the authority Belcher

relies upon is inapposite to what actually occurred in this case because he cites

decisions concerning the use of such evidence as a means of establishing the guilt of

the accused, not as evidence to rehabilitate a witness’s credibility.28

Still, we must consider whether the State properly introduced the evidence as

a means of rehabilitating the victim’s credibility under Georgia’s rules of evidence.

(b) In a somewhat convoluted and roundabout way, Belcher asserts that the trial

court erred in admitting the evidence at issue to rehabilitate the victim’s credibility

because no rule of evidence would permit the admission of the type of evidence the

State used. Specifically, he argues the defendants could not have “opened the door”

(2002) (“The State can show a defendant’s attempt to influence a witness because it
is evidence of consciousness of guilt. This includes attempts to influence witnesses
made through intermediaries. But evidence of a threat or attempt to influence a
witness made by a third party must be linked to the defendant in order to be relevant
to any material issues.” (citations and punctuation omitted)).
28
See supra note 27; see also Fields v. State, 260 Ga. 331, 333 (4) (393 SE2d
252) (1990) (holding that it was reversible error to permit witness to testify as to
threat he received by phone, for the stated purpose of showing that “a threat had been
made against” the witness, when the State was unable to link the threat to the
defendant, preventing the testimony from being relevant to any material issue).
Suffice it to say, the State’s use of the evidence cannot be saved under this same
theory if the evidence was improperly admitted for purposes of rehabilitation.

16
to the inadmissible testimony and that the evidence was not admissible under OCGA

§ 24-6-608 because the victim’s character for truthfulness had not been attacked,

leaving the State with no reason to introduce the testimony.

The State, in an equally convoluted argument, does not specifically rely upon

OCGA § 24-6-608. Instead, citing to cases that were decided under our old evidence

code,29 the State responds that the complained-of testimony was generally relevant

29
The State cites Robinson v. State, 275 Ga. App. 537 (621 SE2d 770) (2005),
for the proposition that “[a]lthough a party normally may not bolster the veracity of
an unimpeached witness, the State may rehabilitate a witness whose credibility has
been attacked.” Id. at 538 (1) (punctuation omitted). The State then relies upon Hall
v. State, 255 Ga. App. 631 (566 SE2d 374) (2002), for the proposition that
“[e]vidence which goes to a witness’s credibility is not relevant unless produced to
attack the credibility of a witness, or to rehabilitate credibility when it has been
attacked.” Id. at 632 (1) (punctuation omitted). The trial court also relied upon Hall
in denying Belcher’s motion for new trial. We take this opportunity, once again, “to
remind our highly capable trial courts and lawyers of the importance of relying upon
the new Evidence Code, as well as its accompanying case law, in addressing
evidentiary issues arising after the new code’s effective date.” Patch v. State, 337 Ga.
App. 233, 241 (2) n.21 (786 SE2d 882) (2016); see Stratacos v. State, 293 Ga. 401,
408 (2) (b) n.10 (748 SE2d 828) (2013) (“[I]t is always risky for courts to rely on a
precedent interpreting a statute or other legal text without first examining whether the
legal text on which the precedent was based has been revised and then considering
the effect of any such change . . . . And we add that courts relying on old precedents
regarding evidentiary issues should be particularly attuned to this risk in light of
Georgia’s new Evidence Code.”).

17
to the victim’s credibility under OCGA § 24-4-401,30 and that the cross-examination

of the victim was “brutal.” But the State does not contend—and the record does not

reflect—that cross-examination of the victim included any manner of impeachment

that would permit introduction of the complained-of evidence as being generally

relevant.31 Thus, the general rule of relevance upon which the State specifically relies

30
See OCGA § 24-4-401 (“As used in this chapter, the term ‘relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.”).
31
There was no showing that the victim was biased in some way. See United
States v. Henderson, 337 F3d 914, 918 (A) (7th Cir. 2003) (“[T]he admissibility of
rehabilitation evidence following an attack on the witness’s bias is controlled solely
by considerations of relevance.”); Lindemann, 85 F3d at 1243 (II) (C) (“[A]dmission
of evidence regarding [the witness’s] cooperation in other cases was relevant. The
evidence specifically rebutted the allegation that [the witness] was biased out of
self-interest in [the defendant’s] case: [the witness’s] successful participation in
numerous other cases meant that at the time he was negotiating over his plea deal, he
had lots of information to use as bargaining chips. That fact was relevant under the
standards of Fed. R. Evid. 402 because it made less probable the assertion that [the
witness] was lying in [the defendant’s] case out of self-interest.”). Additionally, even
to the extent that the victim may have been impeached by showing that he had “an
impaired capacity to perceive, recall, or relate the event about which he [was]
testifying” or by “contradicting the substance of the witness’s testimony,”
Lindemann, 85 F3d at 1243 (II) (C), the complained-of evidence about an attempted
bribery by a co-defendant’s father was not relevant to rebut any such challenge. See
generally RONALD L. CARLSON ET AL., EVIDENCE: TEACHING MATERIALS FOR AN
AGE OF SCIENCE AND STATUTES 425 (7th ed. 2012) (“[T]he courts’ rule of thumb on
rehabilitation is response in kind. To minimize the danger of distracting the jury, the
courts require the rehabilitation to be a response in kind to the impeachment.”).

18
is an insufficient basis to support admission of the testimony for purposes of

rehabilitation. And, as Belcher notes, there is no rule that generally “opens the door”

to otherwise inadmissible evidence.32

Notwithstanding specifically relying upon relevancy to support admission of

the complained-of evidence to rehabilitate the victim, the State then argues that

defense counsel not only pointed to inconsistencies between the victim’s testimony

and his prior statements to law enforcement but also “alleged recent fabrication of

testimony and improper influence.”33 But the State does not discuss the rules of

32
See Smith v. State, 299 Ga. 424, 430 (2) (c) n.5 (788 SE2d 433) (2016) (“We
note that ‘opening the door’ is not a freestanding evidence rule allowing a party to
present to the jury otherwise inadmissible evidence; the phrase appears nowhere in
the new Evidence Code or in the Federal Rules of Evidence on which our new code
was largely based. Instead, ‘opening the door’ is a metaphor used for a variety of
situations that arise in criminal and civil trials involving conduct by one party that
allows the other party to introduce evidence that otherwise would not be allowed.”).
33
The State does not provide a record citation or quote any language from the
transcript to specifically support this assertion, leaving us to guess what portions of
the transcript the State believes qualify as this type of impeachment. See COURT OF
APPEALS RULE 25 (b) (1) (“Part One shall point out any material inaccuracy or
incompleteness of appellant’s statement of facts and any additional statement of facts
deemed necessary, plus citations to additional parts of the record or transcript deemed
material. Failure to do so shall constitute consent to a decision based on the
appellant’s statement of facts. Except as controverted, appellant’s statement of facts
may be accepted by this Court as true.”); COURT OF APPEALS RULE 25 (b) (2) (“Part
Two shall contain appellee’s argument and the citation of authorities as to each
enumeration of error. It shall also include the standard of review if different from that

19
evidence that address the types of rehabilitation evidence that may be introduced in

the wake of such impeachment.34

Likewise, the trial court’s order denying Belcher’s motion for new trial does

not specify which provision(s) of the new Evidence Code supported admission of the

complained-of testimony, only concluding that the evidence was admissible as

rehabilitative evidence “even though there was no direct evidence linking the

defendant with this effort by the father of a co-defendant.” In support, the trial court

cites to Coleman v. State35 and Lindsay v. State.36 But these cases were not only

decided under our old Evidence Code,37 they are also factually inapposite.

Coleman concerned testimony “about an anonymous threat [the victim]

received on his answering machine the morning he was scheduled to testify,”38 and

contended by the appellant.”).
34
See supra notes 23 & 24; infra Divisions (2) (b) (i) & (ii).
35
278 Ga. 486 (604 SE2d 151) (2004). The State also cites to Coleman on
appeal to support its assertion that the complained-of testimony was appropriately
admitted.
36
295 Ga. 343 (760 SE2d 170) (2014).
37
See supra notes 19 & 29.
38
Coleman, 278 Ga. at 487 (3).

20
the Supreme Court held that the testimony was appropriately admitted “to explain the

witness’s evasive and extremely reluctant conduct on the witness stand”39 and “to

explain why the witness was being difficult, which was a relevant area of inquiry at

trial.”40 This was not the purpose of the complained-of testimony here.

In Lindsay, a witness testified to receiving threatening phone calls that

attempted to dissuade her from testifying.41 The Supreme Court in Lindsay relied

upon Kell, discussed in Division 2 (a) supra, to hold that

[e]vidence of a defendant’s attempt to influence or intimidate a witness
is circumstantial evidence of guilt, even in the situation in which the
defendant does not personally make the attempt, that is, action by a third
party to influence a witness not to testify or to testify falsely is relevant
and admissible into evidence in a criminal prosecution on the issue of
the defendant’s guilt when the accused is shown to have authorized the
attempt.42

And the Supreme Court further noted that “there was no objection at trial to

admission of evidence of the calls on the basis that they had not been sufficiently

39
Id. at 488 (3) (punctuation omitted).
40
Id. (punctuation omitted).
41
295 Ga. at 348 (3).
42
Id.

21
connected to [the defendant], nor is any error in that regard enumerated in this

appeal.”43 Again, this situation is clearly distinguishable from the facts and arguments

presented in this case.

Thus, none of the cases the trial court relied upon to deny Belcher’s motion for

new trial on this ground support the court’s conclusion that admission of the

complained-of testimony was appropriate. And because we have rejected the State’s

assertion that the evidence was generally relevant, we must now assess the potentially

applicable rules of evidence to determine under which rule, if any, the State could

have properly introduced the complained-of testimony.44

(i) OCGA § 24-6-608. As we have recently explained, OCGA § 24-6-608

(“Rule 608”) of our new Evidence Code “provides very specific, limited methods for

attacking or supporting the credibility of a witness by evidence in the form of opinion

or reputation.”45 In this case, we are concerned with the manner in which Rule 608

43
Id.
44
See West v. West, 199 Ga. 378, 387 (4) (34 SE2d 545) (1945) (“If evidence
is admissible for any purpose, its admission will not cause a new trial.” ( punctuation
omitted)); Central Ga. Women’s Health Ctr., LLC v. Dean, 342 Ga. App. 127, 139
(2) (800 SE2d 594) (2017) (same).
45
Douglas v. State, 340 Ga. App. 168, 171 (2) (796 SE2d 893) (2017)
(punctuation omitted); accord Gaskin v. State, 334 Ga. App. 758, 761 (1) (a) (780

22
permits supporting a witness’s credibility in order to rehabilitate a witness after

impeachment under this rule.46

Under Rule 608 (a), witness credibility may be supported by opinion or

reputation evidence subject to two limitations: (1) the evidence may only refer to

character for truthfulness, and (2) evidence of truthful character is only admissible

“after the character of the witness for truthfulness has been attacked by opinion or

reputation evidence or otherwise.”47 Assuming without deciding that the so-called

“brutal” cross-examination to which the victim was subjected opened the door to

rehabilitation under Rule 608 (a),48 the testimony at issue was not the type of

SE2d 426) (2015); Williams v. State, 332 Ga. App. 546, 548 (1) (b) (774 SE2d 126)
(2015).
46
See OCGA § 24-6-608 (a) (1) (providing for a method of impeachment, in
that witness credibility may be attacked by opinion or reputation evidence, subject
to the limitation that the evidence may refer only to character for untruthfulness).
47
OCGA § 24-6-608 (a) (1)-(2); accord Douglas, 340 Ga. App. at 171-72 (2);
Gaskin, 334 Ga. App. at 761-62 (1) (a); Williams, 332 Ga. App. at 548 (1) (b). See
generally Ronald L. Carlson and Michael Scott Carlson, CARLSON ON EVIDENCE, p.
294 (6th Ed. 2018) (“Under Rule 608 (a), . . . evidence of truthful character is
admissible, but only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.”).
48
Compare United States v. Murray, 103 F3d 310, 320-21 (III) (3rd Cir. 1997)
(holding that witness’s character for truthfulness was “otherwise attacked” within
meaning of Rule 608 (a) when, although defendant presented no opinion or reputation

23
rehabilitative evidence allowed by the rule (i.e., testimony by a different witness

regarding opinion or reputation of the victim’s truthfulness), precluding admission

via Rule 608 (a).49

evidence to impeach witness, counsel performed vigorous cross-examination of
witness, exposing various illegal and sordid activities), with United States v. Danehy,
680 F2d 1311, 1314 (I) (11th Cir. 1982) (holding that mere fact that witness is
contradicted by other evidence in case during vigorous cross-examination does not
constitute an attack upon reputation for truth and veracity so as to allow witness to
introduce evidence of his reputation for truthfulness), and United States v. Lay, No.
1:07 CR 339, 2007 WL 2902912, at *5 (V) n.13 (N.D. Ohio 2007) (“The circuit court
found no error in the trial court’s exclusion of the proffered testimony [regarding
truthful character,] concluding that an effort by the government’s counsel pointing
out inconsistencies in testimony and arguing that the accused testimony is not
credible does not constitute an attack on the accused’s reputation for truthfulness
within the meaning of Fed.R.Evid. 608.”). See generally Carlson, supra note 47, p.
294 (“Vigorous cross examination and/or the fact that a witness is contradicted by
other evidence in the case does not constitute an attack governed by Rule 608 (a).”);
id. p. 283-84 (“[B]olstering before impeachment of the witness is objectionable. Not
every cross-examination opens the door to rehabilitation via responsive bolstering.
. . . The fact that a witness takes the stand to testify does not automatically create the
right to offer evidence to bolster his credibility. While a ‘slashing cross-examination’
may be sufficient to qualify as an attack on credibility under Rule 608, only when the
tenor of cross-examination can be characterized as an attack on the witness’ veracity
can evidence of his truthful character be offered to rehabilitate the witness.”
(footnotes omitted));
49
See United States v. Marshall, 173 F3d 1312, 1315-16 (II) (A) (11th Cir.
1999) (“If the prosecutor was seeking to elicit evidence regarding [another witness’s]
veracity, the question should have been phrased very differently—for example, “What
is your opinion as to [the earlier witness’s] character for truthfulness?” The question
as asked cannot be considered proper under Rule 608 (a) (2). Thus, the district court
erred in admitting [the later witness’s] answer.”); United States v. Greer, 643 F2d

24
 As for Rule 608 (b), it provides that, with certain exceptions, “[s]pecific

instances of the conduct of a witness, for the purpose of attacking or supporting the

witness’s character for truthfulness, . . . may not be proved by extrinsic evidence.”50

But such instances may, “in the discretion of the court, if probative of truthfulness or

untruthfulness, be inquired into on cross-examination of the witness[ ] . . .

280, 283 (5th Cir. 1981) (“[Because] counsel’s question inquired of [the earlier
witness’s] reputation in the community, rather than being limited to his reputation for
truthfulness and veracity, it was improper under Rule 608 (a).”); see also United
States v. Solomonson, 908 F2d 358, 362 (II) (A) (2) (8th Cir. 1990) (“[T]o rehabilitate
a witness whose credibility has been attacked, any competent witness can testify, in
the form of opinion or reputation, as to a witness’s truthful character.”); United States
v. Watson, 669 F2d 1374, 1382 (11th Cir. 1982) (“The reputation witness must have
sufficient acquaintance with the principal witness and his community in order to
ensure that the testimony adequately reflects the community’s assessment. In contrast,
opinion testimony is a personal assessment of character. The opinion witness is not
relating community feelings, the testimony is solely the impeachment witness’ own
impression of an individual’s character for truthfulness.” (citation omitted)). See
generally Carlson, supra note 47, p. 295 (“To rehabilitate a witness whose credibility
has been attacked, any competent witness can testify, in the form of opinion or
reputation, as to a witness’s truthful character.”).
50
OCGA § 24-6-608 (b); accord Douglas, 340 Ga. App. at 172 (2); Gaskin,
334 Ga. App. at 762 (1) (a);Williams, 332 Ga. App. at 548-49 (1) (b); see also Dean,
342 Ga. App. at 141 (2) n.9 (“Rule 608 (b) provides that if the witness denies the
specific bad act on cross-examination that bears on the witness’ character for
untruthfulness, the act ‘may not be proved by extrinsic evidence and the questioning
party must take the witness’ answer, unless the evidence would be otherwise
admissible as bearing on a material issue of the case.’”).

25
[c]oncerning the witness’s character for truthfulness or untruthfulness[.]”51 Here, of

course, Rule 608 (b) does not support admission of the testimony at issue because it

was elicited on redirect, not cross-examination, and the evidence was presented in

order to rehabilitate the witness, not impeach.52

51
OCGA § 24-6-608 (b) (1)-(2); accord Douglas, 340 Ga. App. at 172 (2);
Gaskin, 334 Ga. App. at 762 (1) (a);Williams, 332 Ga. App. at 549 (1) (b); see also
Dean, 342 Ga. App. at 139-40 (2) (“Under Rule 608 (b) (1) of Georgia’s revised
Evidence Code, a trial court may allow questioning about specific instances of
conduct by a witness on cross-examination, if the conduct is probative of the
witness’s character for truthfulness or untruthfulness.” (footnote omitted)). See
generally Carlson, supra note 47, p. 299 (“Rule 608 (b) applies to the cross-
examination of criminal defendants as well as other witnesses.”).
52
See Gaillard v. Jim’s Water Serv., Inc., 535 F3d 771, 778 (III) (B) (8th Cir.
2008) (noting that Rule 608 (b) of the Federal Rules of Evidence “allows the court
in its discretion to allow cross examination of witnesses regarding specific instances
of a witness’s own conduct if the past experiences are probative of a character of
untruthfulness” (punctuation omitted)); United States v. McNatt, 931 F2d 251, 255
(IV) (4th Cir. 1991) (“Federal Rule of Evidence 608 (b) on cross-examination of a
witness allows inquiry into specific instances of conduct of the person about whose
character the witness is testifying, but the rule does not allow the party calling the
witness to inquire into specific instances of conduct nor introduce extrinsic evidence
of such.” (footnote omitted)). See generally HADDEN, supra note 20, § 6:37 (“The
advocate may, at the discretion of the court, use specific instances of conduct during
cross-examination of a witness who has given opinion or reputation evidence on
either truthfulness or untruthfulness. The court’s discretion in allowing or disallowing
inquiry into specific instances will not be reversed absent clear abuse of discretion.
Where the witness provides opinion or reputation testimony, the opposing party may
test that testimony with specific instances of conduct if the instances are ‘probative
of truthfulness or untruthfulness.’ The opponent, where appropriate, may inquire into
conduct either of the witness or of another witness about whose truthfulness the

26
 (ii) OCGA § 24-6-613. In denying Belcher’s motion for new trial on this

ground, in addition to the cases discussed supra, the trial court relied upon Thompson

v. State53 for the proposition that “[a] witness’s veracity is placed in issue . . . if

affirmative charges of recent fabrication, improper influence, or improper motive are

raised during cross-examination.”54 But pertinent language is missing from the trial

court’s quote. Indeed, importantly, the complete proposition from the case reads as

follows: “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.”55

Moreover, even assuming that the victim was cross-examined with charges of

recent fabrication or improper influence as the State alleges,56 OCGA § 24-6-613

witness had testified.” (footnotes omitted)).
53
281 Ga. App. 627 (636 SE2d 779) (2006). We note that Thompson was also
decided under our old Evidence Code.
54
Thompson, 281 Ga. App. at 631 (3) (punctuation omitted).
55
Id. (punctuation omitted) (emphasis supplied).
56
See United States v. Drury, 396 F3d 1303, 1316 (II) (D) (11th Cir. 2005)
(“[P]rior consistent statements are treated as admissible non-hearsay only if they are
offered to rebut a specific allegation of recent fabrication, not to rehabilitate
credibility that has been generally called into question.” (second emphasis supplied))

27
(“Rule 613”) provides that when this occurs, the witness may be rehabilitated through

the introduction of a prior consistent statement that was “made before the alleged

recent fabrication or improper influence or motive arose.”57 And here, the victim was

not rehabilitated with a prior consistent statement. Nor was the testimony regarding

the attempted bribery used to in any way explain the prior inconsistent statements to

law enforcement about which the victim was cross examined.58 Instead, the State

57
OCGA § 24-6-613 (c); see Dimauro v. State, 341 Ga. App. 710, 725 (5) (801
SE2d 558) (2017) (“It is well established that a witness’s prior consistent statement
is admissible only [when]: (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. And a witness’s veracity is placed in issue, so as to
permit the introduction of a prior consistent statement, if affirmative charges of recent
fabrication, improper influence, or improper motive are raised during
cross-examination.” (punctuation and footnote omitted)). Cf. Johnson v. State, 328
Ga. App. 702, 706 (2) (760 SE2d 682) (2014) (“The State did not elicit testimony
from the trooper about [the victim’s] statements to rehabilitate her after the defense
attacked her veracity; instead, the State elicited the testimony during its direct
examination of the witness simply to bolster the victim’s credibility. Thus, the trial
court erred by admitting the trooper’s testimony regarding [the victim’s] prior
consistent statements.”).
58
Cf. Bivins v. State, 200 Ga. 729, 741 (8) (38 SE2d 273) (1946) (“The witness,
having admitted that he had committed perjury at the coroner’s inquest, was entitled
to explain as best he could his reasons for doing so, and the jury could take these facts
into consideration in passing on the credibility of the witness.”); Nealy v. State, 239
Ga. App. 651, 655-56 (8) (522 SE2d 34) (1999) (“Earlier in the trial, [the victim]
gave testimony that the defendants were not the robbers that was inconsistent with
other trial testimony and pretrial statements he made identifying the defendants as the
robbers. In subsequent testimony, [the victim] said that, earlier in the trial, he had

28
presented testimony regarding the father of one of the co-defendants attempting to

influence the victim’s testimony by offering a bribe that the victim rejected. Thus, the

State could not have introduced the evidence through Rule 613.

(iii) Given the particular circumstances discussed supra, the complained-of

testimony was neither admissible as generally relevant nor under the rehabilitation

strictures of Rules 608 and 613. Accordingly, the trial court erred by permitting the

State to introduce testimony concerning the attempt to bribe the victim for purposes

of rehabilitating the victim’s credibility.59 We must now consider whether the

admission of the testimony was harmless.

falsely testified that the defendants were not the robbers because an unidentified
person threatened him with bodily harm if he testified against the defendants and
because [a defendant’s] father had bribed him with money. The trial court properly
allowed [the victim] to give this testimony to explain why he had testified falsely and
to rebut its discrediting effect. Moreover, before [the victim] gave his explanation, the
trial court gave cautionary instructions to the jury that the testimony was solely for
the purpose of explaining [the victim’s] changed testimony, and that it was not to be
considered as evidence against any of the defendants or for any other purpose.”
(citations omitted)).
59
Cf. Dean, 342 Ga. App. at 139-41 (2) (holding that trial court did not abuse
its discretion in admitting evidence of a specific instance of conduct pursuant to Rule
608 (b) when the act was probative of untruthfulness); United States v. Abair, 746
F3d 260, 264 (II) (A) (7th Cir. 2014) (holding that trial court abused its discretion by
permitting cross-examination as to specific instance of conduct when State failed to
establish sufficient basis that instance was probative of witness’s character for
untruthfulness).

29
 (c) Belcher asserts that the admission of the above-referenced testimony

concerning Smith’s father, without establishing any link to a defendant, was not

harmless because a juror was dismissed out of fear for her life. But as to the dismissed

juror, the record in no way reflects that she was in fear for her life and ultimately

dismissed because of the complained-of testimony. Instead, the record shows that the

juror had previously lived in the same community as the three defendants; still

maintained connections to a local fast-food restaurant where she had worked for 13

years; and grew concerned that the defendants would seek retribution against her if

they learned her identity through any shared connections within that community. The

juror never in any way linked her safety concerns to the aforementioned testimony

regarding Smith’s father, instead only specifically mentioning that the evidence and

the testimony in the case had involved the use of firearms. Thus, the dismissal of this

juror is not, as Belcher asserts, direct evidence of harm flowing from the victim’s

testimony regarding the attempted influence by Smith’s father.

Nevertheless, although Belcher does not discuss the exact harmless-error

standard applicable to this case, he does assert that the evidence against him was not

overwhelming. And our Supreme Court has recognized that the new Evidence Code

“continues Georgia’s existing harmless error doctrine for erroneous evidentiary

30
rulings.”60 Thus, in determining if an error was harmless, “we review the record de

novo and weigh the evidence as we would expect reasonable jurors to have done

so.”61 Finally, the test for determining “nonconstitutional harmless error is whether

it is highly probable that the error did not contribute to the verdict.”62

Considering the record as a whole, we conclude that it is highly probable that

the error did not contribute to the jury’s verdict. Indeed, as detailed supra, in addition

to the victim’s testimony, the State presented evidence that a witness overheard

Belcher say that he wanted to rob someone with a gun that night; party guests looked

at Partee’s phone when it was left unattended and saw text messages that referenced

a plan to commit a robbery; Belcher was seen with Partee at the party by multiple

witnesses; the ATM machine photographed who made the withdrawals, which the

60
Smith, 299 Ga. at 431 (2) (d); see OCGA § 24-1-103 (a) (“Error shall not be
predicated upon a ruling which admits or excludes evidence unless a substantial right
of the party is affected . . . .”).
61
Smith, 299 Ga. at 432 (2) (d) (punctuation omitted); accord Rivera v. State,
295 Ga. 380, 382 (2) (761 SE2d 30) (2014).
62
Smith, 299 Ga. at 432 (2) (d) (punctuation omitted); accord Rivera, 295 Ga.
at 382 (2).

31
victim testified was Partee; Belcher bore a scar on his abdomen, corroborating the

victim’s story; and Belcher lied about his alibi.63

Accordingly, for all these reasons, we affirm Belcher’s convictions.

Judgment affirmed. Ray and Self, JJ., concur.

63
See Paschal v. State, 335 Ga. App. 411, 414 (1) (780 SE2d 681) (2015)
(holding that it was highly probable that inadmissible evidence did not contribute to
the jury’s verdict in light of other overwhelming evidence of guilt); Williams v. State,
312 Ga. App. 693, 695 (2) (719 SE2d 501) (2011) (same); Massey v. State, 306 Ga.
App. 180, 184 (3) (a) (702 SE2d 34) (2010) (same).

32