Gaskin v. State

334 Ga.App. 758

780 S.E.2d 426

GASKIN

v.The STATE.

No. A15A0472.

Court of Appeals of Georgia.

Nov. 20, 2015.

Brian Maurice Condon, Margaret Elizabeth Heinen, for Appellant.

Paul L. Howard Jr., David K. Getachew–Smith, Melissa D. Redmon, for Appellee.

McMILLIAN, Judge.

Larry Gaskin, Jr. appeals the trial court's denial of his motion for new trial after a jury convicted him of two counts of child molestation. Because we find that the trial court committed harmful error in admitting evidence of Gaskin's prior arrests, we reverse.

Viewed in the light most favorable to support the verdict,¹ the evidence at trial showed that in February 2011, the victim, K.C., who was 15 years old, lived with her mother, younger sister,² and Gaskin. One night that month, K.C. was laying in the bed with her sister, whom she was babysitting while Gaskin and her mother were out of the house. That evening, K.C. texted her mother, who was still out, and asked her to make Gaskin leave the house. When K.C. and her mother subsequently spoke on the phone, K.C. told her mother that when Gaskin came to get her sister out of the bed, he touched K.C.'s breasts. K.C.'s mother then confronted Gaskin, but he denied any wrongdoing, saying that K.C.'s assertion was "crazy." The next day, K.C., her mother, and Gaskin discussed the situation. K.C. repeated that Gaskin had been drinking and had touched her breasts, but she did not know if he had done it on purpose or not. According to K.C.'s mother, K.C. did not say that she wanted Gaskin to leave the house, and he continued to live with the family.

Approximately nine months later, in September 2011, when K.C. was visiting Charles Thigpen,³ the father of K.C.'s other sister, she told him that Gaskin came home drunk one night, went into her bedroom, and attempted to have sex with her by "reach[ing] down into her panties." K.C. told Charles that afterwards she was given a cell phone and $100. Charles spoke with Gaskin and K.C.'s mother and was told that it was all a misunderstanding and that they had dealt with the matter. However, Charles told his wife, Quineisha, what K.C. had said. When Quineisha spoke with K.C., K.C. told her that Gaskin tried to have sex with her, that she kicked him off of her, and that he had exposed himself to her. The next day, Quineisha called a counselor at K.C.'s school to report the incident. The counselor spoke with K.C., who admitted she had told Quineisha about the incident involving Gaskin. The school then notified the police and the Department of Family and Children Services about the matter.

Detective David Remec of the Atlanta Police Department spoke briefly with K.C. at the school that day, and she told him that Gaskin had touched her in a sexual manner sometime in or around February 2011. She also told Remec that Gaskin had given her a cell phone and some money to try to keep her quiet. Remec then arranged for a forensic interviewer to question K.C.

K.C. told the forensic interviewer that in February 2011, Gaskin had come home intoxicated, entered the room where she was in bed with her sister, and asked K.C. if anyone was home. When K.C. told Gaskin no one else was there, he went into the bathroom and then came back and started touching her breasts and the outside of her vagina. She said that, afterward, he offered her money not to tell anyone what had happened. K.C. said that Gaskin gave her $100 and bought her a phone two days after the incident. A recording of K.C.'s forensic interview was played for the jury.

However, during her direct examination at trial, K.C. either denied that anything happened in 2011 or stated that she did not remember. K.C. said that she did not want to talk about what had happened because she felt that she was responsible for her younger sister not getting to see Gaskin, who was her sister's father, and that upset K.C. However, K.C. testified that she recalled having a conversation with Gaskin and her mother about Gaskin touching her. She also testified that she received money and a cell phone from Gaskin. Additionally, she recalled talking with police, the counselor at her school, and someone else, but she said that she did not remember or did not know what those conversations were about. But on cross-examination, K.C. admitted telling her mother that Gaskin had accidentally touched her breasts, telling the Thigpens that Gaskin had tried to have sex with her, and telling the forensic interviewer that Gaskin had touched her breasts and vagina.

After the State rested, Gaskin called K.C.'s mother as a witness for the defense to testify as to his reputation for truthfulness. Gaskin also testified and denied ever improperly touching K.C. Moreover, both Gaskin and K.C.'s mother testified that K.C. had received the cell phone and the $100 for her birthday.⁴

1. Gaskin argues on appeal that the trial court erred when it allowed the State to question K.C.'s mother about his prior arrests.

During Gaskin's trial, his counsel asked K.C.'s mother if she was aware of Gaskin's reputation in the community for truthfulness, and she replied, "Yes." But when defense counsel began to ask a follow-up question, the State objected to any testimony regarding specific examples of his good reputation. Gaskin's counsel replied that he did not want to ask about specifics, and after the trial court reviewed the questions that counsel planned to ask, it allowed him to proceed. Gaskin's counsel asked only one more follow-up question: whether knowing Gaskin's reputation for truthfulness in the community, K.C.'s mother would believe testimony that Gaskin gave under oath.⁵ K.C.'s mother again replied in the affirmative.

On cross-examination, the prosecutor asked K.C.'s mother if her opinion of Gaskin's reputation for truthfulness would change if she were aware that he had been arrested "on a couple of occasions." K.C.'s mother replied that her opinion would not change and that she was aware of his prior arrests. At that point, Gaskin's counsel objected to any questions about the specific arrests, but after a bench conference, the trial court stated that the prosecutor could ask about "the three arrests that you know about over the defendant's objection." The prosecution then asked K.C.'s mother if she was aware of four prior arrests: for possession, manufacturing, or distribution of marijuana; simple battery; criminal damage to property; and obstruction of a person making a 911 call.

In his motion for new trial, Gaskin asserted that the admission of this evidence was error, and the trial court agreed. However, the trial court concluded, without explanation, that "this error was harmless as the Court further finds it is highly probable that the evidence did not contribute to the jury's verdict." Thus, the trial court denied Gaskin's motion for new trial.

While we agree the trial court committed error in admitting evidence of Gaskin's prior arrests, we disagree with the trial court's conclusion that the error was harmless.

(a) This case was tried in January 2013, the month that Georgia's new Evidence Code became effective. See Ga. L. 2011, p. 99, § 101. Under the new Code, OCGA § 24–6–608⁶ provides very "specific, limited methods for attacking or supporting the credibility of a witness by evidence in the form of opinion or reputation." Williams v. State, 332 Ga.App. 546, 548(1)(b), 774 S.E.2d 126 (2015). Under that statute,

[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness; and(2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.⁷

OCGA § 24–6–608(a). The statute also addresses the use of specific instances of conduct to attack (or support) a witness's character for truthfulness, providing that "other than a conviction of a crime as provided in [OCGA § ] 24–6–609,⁸ or conduct indicative of the witness's bias toward a party" such specific instances "may not be proved by extrinsic evidence." OCGA § 24–6–608(b). However, in the trial court's discretion, evidence of specific instances of conduct

if probative of truthfulness or untruthfulness, [may] be inquired into on cross-examination of the witness:

(1) Concerning the witness's character for truthfulness or untruthfulness; or

(2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

(Emphasis supplied.) Id.

Because OCGA § 24–6–608(b) places the decision whether to admit specific instances of conduct within the trial court's discretion, we will reverse the trial court's ruling only on a clear abuse of that discretion.

See Bradshaw v. State, 296 Ga. 650, 656(3), 769 S.E.2d 892 (2015) (adopting federal "clear abuse of discretion" standard for introduction of evidence under Fed. R. Evid. 403 and 404(b) ). Additionally, because the provisions of OCGA § 24–6–608 were "borrowed from the Federal Rules of Evidence,"⁹ we "look to decisions of the federal appeals courts construing and applying the Federal Rules, especially the decisions of the Eleventh Circuit." State v. Frost, 297 Ga. 296, 299, 773 S.E.2d 700 (2015). See also Parker v. State, 296 Ga. 586, 592(3), 769 S.E.2d 329 (2015).

In interpreting Fed. R. Evid. 608, the federal provision comparable to OCGA § 24–6–608, the federal courts have found that the evidence must involve offenses or "[a]cts probative of untruthfulness" including "such acts as forgery, perjury, and fraud." (Citation and punctuation omitted.) United States v. Novaton, 271 F.3d 968, 1006(II) (F) (11th Cir.2001). See also United States v. Morgan, 505 F.3d 332, 340(II) (C)(2) (5th Cir.2007) ( "the rule authorizes inquiry only into instances of misconduct such as perjury, fraud, swindling, forgery, bribery, and embezzlement"). However, "[t]he...