FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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
September 9, 2019
In the Court of Appeals of Georgia
A19A1477. WILSON v. THE STATE.
MERCIER, Judge.
A jury found Samuel Wilson guilty of aggravated assault with the intent to rape
(as a lesser included offense of the charged crime of rape), aggravated sodomy and
false imprisonment. Following his convictions, Wilson filed a motion for new trial,
which the trial court denied. Wilson appeals, claiming that the trial court erred by
failing to give certain jury charges, that his trial counsel was ineffective for failing to
request those jury charges, and that the trial court erred by admitting hearsay and
bolstering testimony. Finding no error, we affirm.
Viewed in the light most favorable to the verdict, the evidence at trial showed
the following. See Herrington v. State, 300 Ga. 149 (1) (a) (794 SE2d 145) (2016).
On October 13, 2014, the victim met Malcom White, whom she was dating, and
Wilson, a friend of White’s, at the Five Points MARTA station. The three of them
went to White’s apartment, where they smoked marijuana. After they finished
smoking, White and the victim went into White’s bedroom and had consensual sexual
intercourse. All three spent the night at the apartment. Wilson slept in another
bedroom, and the following morning all three smoked marijuana together. Thereafter,
White left the apartment, telling the victim that he needed to go to the store. The
victim stayed at the apartment and took a nap in White’s room. She awoke to find
Wilson next to her on the bed, watching a movie. Wilson asked the victim if he could
perform an oral sex act on her. The victim said no, rose from the bed, grabbed her
purse to make sure Wilson had not stolen anything from her and asked him where
White was. Wilson responded that White was “not coming back,” then he reached for
the victim’s neck and pinned her to the bed. Wilson then grabbed her wrists and
performed oral sex on her. The victim fought with Wilson and he turned her over so
that she was lying on her stomach. Wilson pulled out a condom, which the victim
grabbed from him thinking that he would not continue the sexual assault without a
condom, but Wilson produced a second condom. The victim testified that Wilson
wore the second condom while raping her. The victim continued to fight with Wilson
throughout the assault and tried to move off of the bed. Wilson eventually stopped the
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assault, and the victim ran from the apartment. As she left the apartment, the victim
realized that she still had the first condom in her hand, and she threw it over the
apartment building stairwell into some nearby bushes.
The victim called a friend, who drove to pick her up. The victim’s friend
testified that when she picked the victim up, the victim was crying and seemed scared.
The victim’s friend called the police and reported what happened.
Following the phone call, police officers met the victim at White’s apartment.
The victim then went to Grady Hospital for a sexual assault examination. However,
she used the restroom prior to the examination. The physician who conducted the
sexual assault exam testified that the victim was “pretty tearful” during the exam and
he had to stop a few times. He stated that the exam did not reveal any obvious signs
of physical trauma, but the physician noted that such is “quite often” the case in
sexual assault exams.
The detective investigating the case testified that he obtained a search warrant
for White’s apartment. During the search of the area outside the apartment, a condom
was found where the victim had described throwing the first condom, and two
condom wrappers, matching the description provided by the victim, were found next
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to the bed. The victim identified Wilson in a photographic line up and during trial as
the individual who assaulted her.
The State called White to testify. He testified that he dated the victim, but that
Wilson was his “best friend” and on the morning of the incident he told Wilson “if
he can work his mojo, if he wanted to he could try [the victim] up[.]” He stated that
he told Wilson that he could “try” the victim because White “share[s] everything with
[Wilson]” and that they had “shared” female partners before. White testified that he
then left the apartment and went to work. Later that evening, Wilson contacted White
and told him that “he tried [the victim] up and she wasn’t going for it, and she had got
upset at him . . . . She said that he had raped her[.]” Wilson told White that he did not
rape the victim but that he tried to perform oral sex on her, the victim “got mad,” they
“got into a tussle,” and “he didn’t let her leave.” White testified that he did not want
to see his best friend go to jail and that he believed Wilson’s account. White stated
that he was testifying because he was under subpoena and the State had not promised
him any leniency regarding his pending criminal indictments for forgery and theft by
receiving stolen property.
1. Wilson claims that the trial court erred by failing to provide a jury instruction
regarding leniency granted to witnesses in exchange for testimony and a jury
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instruction regarding accomplice testimony. Because Wilson admittedly failed to
request these charges or raise these objections at trial,
his claim[s are] reviewed on appeal only for plain error, meaning that we
will reverse the trial court only if the instructional error[s were] not
affirmatively waived, [were] obvious beyond reasonable dispute, likely
affected the outcome of the proceedings, and seriously affected the
fairness, integrity, or public reputation of judicial proceedings.
Herrington, supra at 151 (2) (citation and punctuation omitted); see OCGA § 17-8-58
(b) (failure to object to the failure to charge the jury precludes appellate review unless
the charge constitutes plain error); Shaw v. State, 292 Ga. 871, 872-873 (2) (742
SE2d 707) (2013).
(a) Wilson complains that the trial court did not instruct the jury regarding
leniency that could have been granted to White in exchange for his testimony.
Specifically, he claims that the trial court should have given the following charge, sua
sponte: “In assessing the credibility of a witness, you may consider any possible
motive in testifying, if shown. In that regard you are authorized to consider any
possible pending prosecutions, negotiated pleas, grants of immunity or leniency, or
similar matters. You alone shall decide the believability of the witnesses.” Suggested
Pattern Jury Instructions, Vol. II: Criminal Cases (2019), § 1.31.80.
5
White specifically testified that he was not promised any leniency regarding his
two pending criminal indictments. Additionally, the detective testified that White was
not promised any leniency in exchange for his testimony at Wilson’s trial, and that
White’s pending criminal prosecution was not discussed at all. As there was no
evidence that White testified in exchange for immunity or leniency, the trial court did
not err by not giving the charge. See Hunter v. State, 281 Ga. 693, 695-696 (4) (642
SE2d 668) (2007).
(b) Wilson claims that White was an accomplice and as such the trial court
erred by not charging the jury on accomplice testimony. Wilson claims that the
following unrequested charge should have been given:
An exception to [the single witness] rule is made in the case of (specify
felony charge), where the witness is an accomplice. The testimony of the
accomplice alone is not sufficient to warrant a conviction. The
accomplice’s testimony must be supported by other evidence of some
type, and that evidence must be such as would lead to the inference of
the guilt of the accused independent of the testimony of the accomplice.
It is not required that supporting evidence be sufficient to warrant a
conviction or that the testimony of the accomplice be supported in every
material particular.
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2019), § 1.31.92.
6
“It is error to fail to give a jury instruction on accomplice liability where there
is slight evidence supporting a finding that a witness was an accomplice.” Walter v.
State, 304 Ga. 760, 766 (3) (b) (822 SE2d 266) (2018) (citation omitted). A witness
is an accomplice if he, in relevant part, “[i]ntentionally aids or abets in the
commission of the crime; or [i]ntentionally advises [or] encourages . . . another to
commit the crime.” OCGA § 16-2-20 (b); see Walter, supra. “Mere presence or
approval of a criminal act is not sufficient to render one a party to the crime, and a
conviction as a party to a crime requires proof that the defendant shared a common
criminal intent with the principal perpetrator of the crime.” Walter, supra (citation and
punctuation omitted). Criminal intent “may be inferred from that person’s conduct
before, during, and after the commission of the crime.” Id. (citation omitted).
Wilson argues that White was an accomplice because he told him “if he can
work his mojo, if he wanted to he could try [the victim].” Therefore, Wilson claims
that the trial court committed plain error by failing to instruct the jury that accomplice
testimony must be corroborated, given that the court instructed the jury that “[t]he
testimony of a single witness, if believed, is sufficient to establish a fact[.]” But White
did not testify that he encouraged Wilson to assault the victim; rather he testified that
if Wilson could “work his mojo” he could “try” the victim and that he and Wilson had
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“shared” sexual partners in the past. Additionally, White was not present during the
commission of the crime, and he testified at trial that he did not believe that Wilson
had assaulted the victim. Wilson points to no evidence that White knew that Wilson
was planning on assaulting the victim, and he fails to cite precedent requiring an
accomplice-corroboration instruction under circumstances similar to those presented
here. See Walter, supra at 766-767 (3) (b). “An error is plain if it is clear or obvious
under current law. An error cannot be plain where there is no controlling authority on
point.” Id. (citation and punctuation omitted). As such, we cannot conclude that the
trial court committed obvious error in failing to instruct the jury on the need for
corroboration of accomplice testimony. See id. (the trial court’s failure to give a jury
charge on accomplice testimony was not plain error even when the alleged
accomplice drove the defendants to the crime scene, some of whom she knew were
armed, when she did not know what the defendants were planning); see generally
Herrington, supra.
2. In related enumerated errors, Wilson complains that he did not receive
effective representation at trial because his counsel did not request the leniency and
accomplice jury charges. “In order to prevail on a claim of ineffective assistance of
trial counsel, [Wilson] must show both that counsel’s performance was deficient, and
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that the deficient performance was prejudicial to his defense.” Hunter, supra at 696
(6) (citations omitted). As discussed in Division 1, the leniency and accomplice jury
charges were not warranted by the evidence. As such, Wilson failed to meet his
burden to show that trial counsel’s failure to request the instructions was deficient
performance. See id.
3. Wilson claims that the trial court erred in admitting hearsay and bolstering
testimony through three witnesses: the physician, the detective, and the victim’s
friend. The three witnesses all testified and repeated what the victim told them
regarding the assault in the immediate aftermath.1 “We review the admission of
evidence for an abuse of discretion.” Adkins v. State, 301 Ga. 153, 158 (3) (a) (800
SE2d 341) (2017) (citation omitted).
(a) “The credibility of a witness shall be a matter to be determined by the trier
of fact[.]” OCGA § 24-6-620. “A witness, even an expert, can never bolster the
credibility of another witness as to whether the witness is telling the truth.” Adkins,
1
The witnesses testified with differing degrees of specificity regarding the
assault. The physician stated that the victim told him that she had consensual sex with
“a friend or ex-boyfriend,” then a different friend “performed oral sex on her and then
raped her[.]” The detective testified that the victim had recounted the events in detail,
which closely mirrored the victim’s trial testimony. The victim’s friend merely
testified that the victim told her that “the person that was there with her forced
himself upon her.”
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supra (citations omitted). “When a witness’s statement does not directly address the
credibility of another witness, however, there is no improper bolstering. And when
we evaluate whether testimony constitutes improper bolstering, we consider the
disputed testimony in context.” Brown v. State, 302 Ga. 454, 460-461 (2) (b) (807
SE2d 369) (2017) (citations omitted). Here, none of the three witnesses opined or
spoke directly about the victim’s truthfulness. Instead they recounted what the victim
had told them. This type of testimony does not constitute improper bolstering. See
generally Abney v. State, ____ Ga. _____ , 13 (3) (b) (Case No. S19A0741) (decided
August 5, 2019).
(b) “[A]n out-of-court statement made by a witness is not hearsay if the witness
testifies at the time of trial or hearing, is subject to cross-examination concerning the
statement, and the statement is admissible as a prior consistent statement under
OCGA § 24-6-613.” Brown, supra at 458 (2) (a); OCGA § 24-8-801 (d) (1) (A). “[A]
witness’s prior consistent statement is admissible only when . . . the veracity of a
witness’s trial testimony has been placed in issue at trial[.]” Dimauro v. State, 341
Ga. App. 710, 725 (5) (801 SE2d 558) (2017) (citation omitted). While a prior
consistent statement can be admitted to rehabilitate a witness if it logically rebuts
“any attack on a witness’s credibility,” it cannot be admitted “for attacks upon [her]
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character for truthfulness or evidence of [her] prior convictions.” Walters v. State,
335 Ga. App. 12, 14 (780 SE2d 720) (2015). Here, the victim testified at trial and was
subject to-cross examination. See Brown, supra. And, for reasons that follow, her
prior consistent statements were admissible.
A review of the record reveals that part of Wilson’s trial strategy was to
discredit the victim by attacking her memory of the assault. In his opening argument,
Wilson claimed that the victim could not remember what had happened because she
had smoked marijuana. During his cross-examination of the victim, Wilson’s trial
counsel repeatedly asked about her use of marijuana prior to the assault, and the affect
of marijuana on her memory.
Thus, while Wilson did not call the victim a “liar,” he nevertheless attacked her
credibility by suggesting that her account of the events was not believable due to her
use of marijuana. See Walters, supra at 17. Because the victim’s credibility was
attacked, her prior consistent statements to the physician, the detective and her friend
were admissible if they “logically rebutted” the attack. See Walters, supra at 17
(citing OCGA § 24-6-613 (c)). The victim’s three prior statements, given within
hours of the assault, that Wilson performed non-consensual oral sex on her and then
raped her logically rebutted Wilson’s claims that the victim’s marijuana use had so
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clouded her memory that she could not remember what happened. See generally id.;
United States v. Evans, 754 Fed. Appx. 898, 902-903 (II) (B) (11th Cir. 2018)
(defendant attacked the victim’s credibility by, inter alia, focusing on the victim’s
alleged inability to remember details based on his mental and drug issues; prior
consistent statements were therefore admissible to show consistency in the victim’s
memories of the event).2 Thus, the trial court did not abuse its discretion in admitting
the testimony of the physician, the detective and the victim’s friend regarding the
victim’s prior consistent statements. See Walters, supra at 17.
Judgment affirmed. Barnes, P. J., and Brown, J., concur.
2
As many provisions of Georgia’s Evidence Code were borrowed from the
Federal Rules of Evidence, including the hearsay provisions, when we consider the
meaning of these provisions, we may look to decisions of the federal appellate courts
construing and applying the Federal Rules, especially the decisions of the United
States Supreme Court and the Eleventh Circuit. See Bolling v. State, 300 Ga. 694, 698
(2) (797 SE2d 872) (2017); Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016).
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