THIRD DIVISION
DOYLE, P. J.,
REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
May 5, 2022
In the Court of Appeals of Georgia
A22A0415. MATTA v. THE STATE.
DOYLE, Presiding Judge.
Following a jury trial, Marlon Matta was convicted of aggravated sodomy,1
aggravated child molestation,2 and three counts of child molestation.3 He appeals the
denial of his motion for new trial, arguing that the lack of a complete and accurate
transcript of the trial and the exclusion of evidence of allegations of sexual abuse
made by the victim against another individual mandated a new trial. For the reasons
that follow, we affirm.
1
OCGA § 16-6-2 (a) (2).
2
OCGA § 16-6-4 (c).
3
OCGA § 16-6-4 (a).
Construed in the light most favorable to the verdict,4 the record shows that
when the victim’s mother was bathing the victim, who was under 10 years of age at
the time, she noticed that his rectum was “very red and open.” She also noticed
changes in the victim’s behavior, including soiling his underwear, being distracted
in school, and pulling his pants down in preparation for what she believed was a
sexual act with his younger cousin. The victim told his mother that Matta “touch[ed]
him” during weekly Bible study that the victim, his family, and 10-12 other
individuals attended at Matta’s home. The victim underwent a forensic interview,
during which he reported that Matta had anally penetrated him more than five times
during Bible study and that Matta made him watch pornographic movies and look at
pornographic magazines. The victim repeated these allegations during trial,
explaining that Matta’s actions caused him pain and made him feel “like [he] was
throwing up.”
While being interviewed by police, Matta denied the victim’s allegations and
denied that the victim had ever been in his bedroom. Matta later contradicted himself,
stating that the victim had been in his bedroom at least three times during Bible study
and caught Matta watching pornography. During a consent search of Matta’s home,
4
See Cantrell v. State, 360 Ga. App. 862 (862 SE2d 329) (2021).
2
police found pornographic magazines and videos in his bedroom in a location
consistent with details provided by the victim. Police also confirmed the victim’s
statement that he could see down the home’s hallway through a crack in the door
when Matta anally sodomized him.
At the conclusion of the trial, Matta was convicted of aggravated sodomy,
aggravated child molestation, and three counts of child molestation. He filed a motion
for new trial, which he later amended three times, and the trial court denied the
motion after a hearing. This appeal followed.
1. Matta contends that the trial court erred by denying his motion for new trial
because the trial transcript is missing a portion of the testimony of one of the State’s
witnesses. We disagree.
Matta’s trial took place over two days in September 2012. In October 2012,
Matta moved for a new trial. On March 31, 2016, because the trial transcript had not
yet been filed, Matta moved for the court to require the court reporter to produce the
transcript or grant him a new trial. On March 31, 2017, Matta amended his motion,
seeking a new trial because the transcript was incomplete based on the court
reporter’s inability to transcribe the testimony of Teresa Wright, a witness for the
prosecution.
3
The court reporter, Pam Ellis, produced a 212-page transcript of Matta’s trial,
which included the testimony of nine witnesses. In the “Certificate of Reporter,” Ellis
certified all pages of the transcript except for one, which contained the following
statement: “As to page number 120 of the within proceedings, the undersigned is
unable to certify the completeness of only that page as it relates to the testimony of
State’s witness Teresa Wright, and the matters set out in reporters hand-written notes
quoted in italics on the foregoing page 120 for the reasons stated therein.” Page 120
of the transcript contained the following “Reporter’s Note”: “Due to reporter error,
the examination of witness Teresa Wright was unintentionally recorded over. The
following uncertified notes are the reporter’s hand-written notes of the testimony. .
. .”5 Ellis’s notes indicated that Wright’s testimony began at 2:45 p.m. and ended at
4:20 p.m.6 According to Ellis’s notes, defense counsel did not cross-
5
(Emphasis in original).
6
The court reporter’s notes state:
2:45 P.M. – Direct/Brasher: Previously Teresa Thomas. Employed CAC
11 years (all at CAC). I have BA in Psychology. Corner house Child
interview training. I follow that protocol. I do 98% of child abuse
interviews. Witness tend/adm as expert. I interviewed Jordan (protocol),
DVR recorded. From observation room, can view interview on monitor
4
examine Wright. During Wright’s ninety-five-minute testimony, the jury took a
twenty-minute break, and the approximately one-hour video of Thomas’s interview
of J. G. was played.
At the motion for new trial hearing, Ellis testified that she had apparently
mistakenly recorded over Thomas’s testimony. According to Ellis, excluding the
twenty-minute break and the one-hour video, Wright’s testimony lasted
approximately fifteen minutes. Matta’s trial counsel testified at the hearing that he
had no specific recollection about Wright’s testimony and that he had “no reason to
dispute any of [the court reporter’s] notes.”
The prosecutor also testified, explaining that because Matta’s trial was her first
child molestation prosecution, she typed out her examination questions in complete
sentences and asked them “virtually in the exact order that they . . . are typed out [in
the notes.].” According to the prosecutor’s notes, which were admitted into evidence,
with 2-way radio. S-15 – Video disk of child interview (tend/adm.) Jury
out 2:50, in 3:10 (Break). Interview format, RACTAC. S-15 interview
video played (approx. 1 hr. video, ended 4:15 P.M.). Brasher/contd
Direct: S-l7 — Paper used in Jordan interview (tend/adm). Not
uncommon not to disclose everything in 1st interview; not uncommon
disclosure not made for several years. Mr. Cain – No questions. Witness
excused, 4:20 P.M.
5
Wright conducted the forensic interview of the victim. The prosecutor testified at that
hearing that Wright was not “a substantial witness as far as information,” and the
“main purpose” of her testimony “was to provide information about the [child
advocacy center] and how interviews were done and, specifically, how this interview
was done and to be able to tender in both the forensic interview and the diagrams at
that time.” The prosecutor also recalled asking Wright “some general questions about
delayed disclosure issues”; she did not ask Wright “anything about specifically what
happened in the [forensic] interview [of the victim].”
Following the hearing, the trial court denied the motion for new trial, finding
that based on the evidence and testimony produced at the hearing, “the trial transcript
in this case is correct and complete.”
Certainly, “[a] defendant who is tried and convicted has a right to appeal and
a right to a transcript of the trial to use in bringing that appeal[, and a]n appellant who
is deprived of an adequate trial transcript has effectively been denied his right to
appeal.”7 Although the State has a duty to file a “correct and complete transcript” if
7
(Citations and punctuation omitted.) Gadson v. State, 303 Ga. 871, 877 (3)
(a) (815 SE2d 828) (2018).
6
requested by the defendant, failure to fulfill that duty does not automatically entitle
the defendant to a new trial.8 “Instead, OCGA § 5-6-41 (f) and (g) allow any party
who contends that the record ‘does not truly or fully disclose what transpired in the
trial court’ to have the record completed either by stipulation of the parties or, if the
parties cannot agree, by the decision of the trial court.”9 Subsections (f) and (g) of
OCGA § 5-6-41,10
8
See id. at 878 (3) (a).
9
(Punctuation omitted.) Id.
10
These subsections provide:
(f) Where any party contends that the transcript or record does not truly
or fully disclose what transpired in the trial court and the parties are
unable to agree thereon, the trial court shall set the matter down for a
hearing with notice to both parties and resolve the difference so as to
make the record conform to the truth. If anything material to either party
is omitted from the record on appeal or is misstated therein, the parties
by stipulation, or the trial court, either before or after the record is
transmitted to the appellate court, on a proper suggestion or of its own
initiative, may direct that the omission or misstatement shall be
corrected and, if necessary, that a supplemental record shall be certified
and transmitted by the clerk of the trial court. The trial court or the
appellate court may at any time order the clerk of the trial court to send
up any original papers or exhibits in the case, to be returned after final
7
construed together, provide for the reconstruction of a missing transcript
of the proceedings whether or not the parties agree as to the contents.
And while the correctness of such transcript, as determined by the trial
judge, is final and not subject to review, OCGA § 5-6-41 (g), whether
the transcript is complete pursuant to OCGA § 5-6-41 (f) is reviewable
on appeal.11
Where all or an important portion of the original verbatim
transcript of a trial is lost and the transcript reconstructed pursuant to
OCGA § 5-6-41 (f) and (g) is manifestly inadequate, an appellant is not
disposition of the appeal.
(g) Where a trial is not reported as referred to in subsections (b) and (c)
of this Code section or where for any other reason the transcript of the
proceedings is not obtainable and a transcript of evidence and
proceedings is prepared from recollection, the agreement of the parties
thereto or their counsel, entered thereon, shall entitle such transcript to
be filed as a part of the record in the same manner and with the same
binding effect as a transcript filed by the court reporter as referred to in
subsection (e) of this Code section. In case of the inability of the parties
to agree as to the correctness of such transcript, the decision of the trial
judge thereon shall be final and not subject to review; and, if the trial
judge is unable to recall what transpired, the judge shall enter an order
stating that fact.
11
(Punctuation and emphasis omitted.) Bamberg v. State, 308 Ga. 340, 347 (2)
(839 SE2d 640) (2020).
8
required to specify how he has been harmed by a particular error that
may have occurred at trial but is now buried in unrecorded history. But
where, as here, an otherwise verbatim transcript is missing only one or
a few parts of the trial, the appellant is not entitled to a new trial unless
he alleges that he has been harmed by some specified error involving the
omitted part and shows that the omission prevents proper appellate
review of that error.12
In this case, Matta has failed to produce any evidence in support of his
argument that the recreated record is incomplete, nor has he raised any specific
objection with the reconstructed testimony.13 Furthermore, he has not alleged that he
12
(Citation omitted.) Gadson, 303 Ga. at 878 (3) (a), citing Johnson v. State,
302 Ga. 188, 197-198 (3) (c) (805 SE2d 890) (2017) (collecting cases).
13
We find meritless Matta’s argument that “no transcript of the missing
testimony can be reliably recreated” because this appeal involves a conflict of interest
between him and trial counsel. See Bamberg, 308 Ga. at 350, n. 9 (rejecting a similar
argument because the “[t]rial counsel would have been aiding in the reconstruction
of the transcript, not using the transcript to demonstrate any error. Moreover,
[Matta’s] appellate counsel called [his] trial counsel at the hearing on [his] motion for
new trial, and [he] . . . questioned [Matta’s] trial counsel . . . about matters occurring
during the trial, as has been done in numerous appeals . . . in which appellants
contended that they received ineffective assistance of trial counsel. Moreover, in
many of [the Supreme Court of Georgia’s] prior decisions on a reconstructed record,
a defendant’s trial counsel testified as part of the efforts at reconstruction, whether
by affidavit or at a hearing held for that purpose.”), citing Mosley v. State, 300 Ga.
521, 524 (2) (796 SE2d 684) (2017); Leeks v. State, 296 Ga. 515, 517 (2) (769 SE2d
296) (2015); State v. Nejad, 286 Ga. 695, 695-696 (1) (690 SE2d 846) (2010).
9
was harmed by any error involving Wright’s testimony. Accordingly, the trial court
did not err by denying Matta’s motion for new trial on this basis.14
2. Matta further argues that the trial court erred by excluding evidence that the
victim made prior allegations of sexual abuse against another individual. We find no
basis for reversal.
In prosecutions for child molestation, Georgia’s Rape Shield
Statute prohibits testimony regarding a complaining witness’s past
sexual behavior, but it does not prohibit testimony regarding previous
false allegations by the complaining witness. Before such evidence can
be admitted, however, the trial court must make a threshold
determination outside the presence of the jury that a reasonable
probability of falsity exists. In this context, a reasonable probability is
a probability sufficient to undermine confidence in the outcome.
Defendants have the burden of coming forward with evidence at the
hearing to establish a reasonable probability that the victim had made a
prior false accusation of sexual misconduct. We will not disturb the trial
14
See Gadson, 303 Ga. at 878 (3) (a), citing Brockman v. State, 292 Ga. 707,
716 (5) (b) (739 SE2d 332) (2013) (affirming denial of motion for new trial because
the defendant did not establish harm or show that he was prevented from raising
issues on appeal based on four missing trial exhibits); Ruffin v. State, 283 Ga. 87, 88
(6) (656 SE2d 140) (2008) (affirming conviction because defendant failed to allege
specific harm from the absence of a transcript of voir dire, opening statements, bench
conferences, and the polling of the jury); Smith v. State, 251 Ga. 229, 230 (2) (304
SE2d 716) (1983) (holding allegation of general harm insufficient because the
defendant failed “to show how he was harmed or to raise any issue which this Court
is unable to adequately review because of skips in the record”).
10
court’s determination on this threshold issue absent an abuse of
discretion.15
Here, the State filed a motion in limine to exclude any testimony or reference
to prior sexual accusations the victim made against individuals other than Matta.
During the trial, defense counsel argued that he should be permitted to cross-examine
the mother about an incident in which she found the victim in an act of a sexual
nature with another child; when the mother asked the victim “where he learned it[,]
. . . another person [– Axel –] may [have] come up.”16 In response, the State argued
that the victim did not mention Axel, by name or otherwise, during his forensic
interview, that the State had no evidence regarding Axel, and that the victim’s
statement did not constitute a false allegation. After hearing the argument of counsel,
the trial court ruled that the defense had to “stay away from . . . the name, [Axel]. . .
. Just the name. . . ,” finding that there was no evidence that the victim’s statement
about Axel was false.
15
(Citations and punctuation omitted.) Vallejo v. State, 362 Ga. App. 33, 34 (1)
(865 SE2d 640) (2021) (en banc), citing State v. Parks, 350 Ga. App. 799, 811 (2)
(830 SE2d 284) (2019), disapproved of on other grounds by State v. Hill, 361 Ga.
App. 230, 235 (2) (b) (863 SE2d 699) (2021); OCGA § 24-4-412 (a).
16
At that time, the victim identified Matta as the person who sexually abused
him.
11
Pretermitting whether Matta made a proper proffer of the mother’s testimony
regarding the victim’s mention of Axel’s name,17 Matta failed to establish the falsity
of the purported prior false sexual allegation. There was no evidence about what Axel
“taught” the victim, any evidence regarding the specifics of any sexual acts performed
by Axel on or in the presence of the victim, or any information upon which the trial
court could have determined that the allegations regarding Axel were false.
“Accordingly, in light of the evidence before the trial court, we do not find that the
trial court abused its discretion in excluding this evidence at trial.”18
Judgment affirmed. Reese, J., and Senior Appellate Judge Herbert E. Phipps
concur.
17
Although defense counsel summarized the expected testimony, counsel did
not question the mother about the victim’s mention of the other individual, either
during the motion in limine presentation, during trial, or at the motion for new trial
hearing. See Parks, 350 Ga. App. at 812 (noting that a trial court is “required” to
“conduct[] a pretrial hearing and [take] testimony” from witnesses in order to make
a determination about the falsity of a victim’s prior false allegation).
18
Id. at 813 (2).
12