Johnson v. State

Beasley, Judge,

dissenting.

I concur in Divisions 1, 3 and 4 of the majority opinion but respectfully dissent with respect to Division 2 and the reversal of the trial court’s judgment. The conviction should be affirmed because the admission into evidence of the protective order did not constitute reversible error in this case.

When the State introduced the order during redirect examination of the child-victim’s mother, defendant objected on two grounds. *827The first was that it was an ex parte order obtained against defendant, when unrepresented by counsel, soon after he was arrested on the charges now being tried and just prior to instituting a separate action for divorce and thus was not relevant.

The second basis for the objection was that the document impermissibly injected defendant’s character into evidence, which is prohibited by OCGA § 24-9-20 (b). Defendant conceded that if it was a divorce order, “it might be relevant.”

The two grounds stated at trial are the only two grounds upon which this Court can rule on appeal, for the trial court had no opportunity to consider any other bases for excluding the evidence and therefore cannot be held to have erred. Chesser v. State, 228 Ga. App. 164,165 (1) (491 SE2d 213) (1997) (“At trial, appellant failed to object to the admissibility of the map on the same grounds as asserted in his enumeration of error and brief; accordingly, he has waived on appeal all issues of admissibility to which he failed to pose a timely objection at trial”); McGee v. State, 205 Ga. App. 722, 729 (12) (423 SE2d 666) (1992) (“At trial appellant timely objected to the admission of the tape only on the grounds [of the victim’s age]. Accordingly, all other objections, including but not limited to improper bolstering, lack of adequate foundation, and double hearsay . . . were waived”); Fletcher v. State, 199 Ga. App. 756, 757 (406 SE2d 245) (1991) (same).

1. The evidence was relevant. Defendant’s theory of the case was that the mother had fabricated the charges and orchestrated the child’s accusations and trial testimony in order to divorce defendant and obtain custody of the children and defendant’s property, the marital property, and support. In order to prove this, defendant introduced during cross-examination of the mother her complaint in a prior divorce, filed in 1988, in which she alleged that her then-husband had inflicted physical abuse on her and continued to harass and threaten her and their child.

He cross-examined her about this allegation and about the things she was asking for (custody, support, attorney fees, equitable division of property), in an effort to show that she had a pattern of making false accusations against husbands in order to obtain divorces and gain custody, property, and support. He also cross-examined her about this prior history in an effort to show that it was this, and not defendant’s alleged acts, which was the cause of the child’s “dysfunction” in accusing defendant of the acts for which he was on trial and in having difficulties at school.

In his closing argument to the jury, defendant elaborated on his theory of fabrication, attacking the mother’s credibility (and thus the child’s) by urging that she had an ulterior self-interested motive or “agenda” in testifying against defendant and in influencing the child. This agenda, defendant asserted, was to acquire all the benefits she *828sought in a divorce from defendant as shown by her marital history.

The State rebutted the argument that the charges were the mother’s contrived scheme by arguing, based on the mother’s testimony, that the prior divorce situations were not falsely alleged with respect to abuse and were not unwarranted efforts to gain undeserved benefits. The State further reasoned that the offenses charged in this case had actually occurred and the mother’s testimony and that of her daughter were truthful, as shown by the fact that shortly after the mother learned of defendant’s activities and he was charged, a superior court judge granted a domestic violence protective order. In countering the objection to this evidence at trial, the State similarly explained this relevance.

In ruling on the objection, the court understood the relevance of the document. It stated: “And you’re [defendant] trying to show a pattern of conduct on her part [to which defendant agreed] and . . . [t]his would contradict that. . . . Your contention is that she falsely made these accusations [to which defendant agreed] . . . like she’s done in two other divorce cases. And now, he’s trying to show that a court has looked into it, found that there was some justification for it, and that [defendant] agreed to it.” The court correctly analyzed the issue of admissibility.

Final orders and judicial approvals of consent agreements as the one at issue here are undertaken “to bring about cessation of acts of family violence” pursuant to verified petition and hearing of which respondent is notified. OCGA § 19-13-4 (a) and (c). Defendant was present for the hearing which resulted in the order. It is presumed the court in the domestic violence action conducted its proceedings and entered the order properly, upon exercise of the discretion given to it by that law. Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984) (“there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction”); Cox v. City of Lawrenceville, 168 Ga. App. 119, 120 (1) (308 SE2d 224) (1983) (“Absent a showing to the contrary, the proceedings in the trial court are presumed to have been conducted in a regular and legal manner”).

2. Defendant’s second ground of objection was that the document placed his character in issue when he had not done so. He cannot avoid the consequences, however, of his opening the door for such evidence by seeking to prove falsity in unrelated court proceedings. By seeking to impeach the mother as he did, he created a necessity for the State to demonstrate to the jury that her credibility was not thereby impugned. The State was permitted to do so. Perkins v. State, 226 Ga. App. 613, 615 (1) (487 SE2d 365) (1997) (“Inquiry as to impermissible bolstering no longer is necessary. . . . Because the victim’s credibility was under attack, the court properly allowed the State to show that he had made prior consistent statements to inves*829tigators”); McGee, supra, 205 Ga. App. at 727 (same); compare Blige v. State, 264 Ga. 166, 167 (2) (441 SE2d 752) (1994) (“evidence which goes to a witness’ credibility is not relevant unless produced to attack the credibility of a witness, or to rehabilitate credibility when it has been attacked”) (Emphasis supplied.).

Decided March 20, 1998 Reconsideration denied April 1, 1998 Roderick H. Martin, Carol A. Lastorino, for appellant. Garry T Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

Because the substance of the protective order was based on her verified petition, it was admissible as evidence of a prior consistent statement. Postell v. State, 200 Ga. App. 208, 210 (3) (407 SE2d 412) (1991) (where witness veracity at issue, prior consistent statement admissible).

If the document incidentally put his character in issue because it gave credence to the very charges for which he was being tried, it did not thereby become inadmissible. Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995) (“evidence which ‘is otherwise relevant . . . does not become inadmissible simply because it incidentally puts a defendant’s character or reputation into evidence’ ”); Mulkey v. State, 250 Ga. 444, 446 (3) (298 SE2d 487) (1983) (this is especially true if the defendant opened the door); Mason v. State, 180 Ga. App. 235, 238 (3) (348 SE2d 754) (1986) (especially true if defendant opened the door).

I am authorized to state that Chief Judge Andrews joins in this dissent.