Neal v. State

355 Ga.App. 125

843 S.E.2d 11

NEAL

v.The STATE.

A20A1256

Court of Appeals of Georgia.

May 5, 2020

Aaron Scott Palmer, for Appellant.

S. Hayward Altman, District Attorney, Jessica B. Wilson, John A. Fitzner III, Assistant District Attorneys, for appellee.

Barnes, Presiding Judge.

A jury found Sylvester Neal guilty of three counts of child molestation, and the trial court denied his motion for new trial.

On appeal, Neal contends that the trial court erred by allowing the State to comment on and present evidence about his pre-arrest silence and by instructing the jury on the issue of whether his silence was an adoptive admission. For the reasons discussed more fully below, we affirm.

"Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." (Citation and punctuation omitted.) Phillips v. State , 347 Ga. App. 147, 147, 817 S.E.2d 711 (2018). So viewed, the evidence showed that Neal lived with his girlfriend and her children for five years. According to the girlfriend's daughter, Neal sexually abused her during that time period. When the daughter was 11 or 12 years old, she was asleep on the living room couch, and Neal woke her up and touched her underneath her clothes on her breasts and vagina. Subsequently, when the daughter turned 13 years old, Neal began having sexual intercourse with her. The sexual intercourse occurred on repeated occasions. The daughter testified that Neal would come into her bedroom when she was asleep at night, would pull down her clothes and have sexual intercourse with her, and would flush the condom that he used down the toilet. The daughter further testified that she would tell Neal that she did not want to have sexual intercourse with him, but he would become angry, and she did not tell anyone about the ongoing sexual abuse because she was scared that Neal would hurt her.

The last time that Neal had sexual intercourse with the daughter was in May 2013 when she 15 years old. That month, Neal's girlfriend came home one night to find her daughter asleep on a mattress in the living room with Neal beside her in only his boxers and with his arm around her.¹ Neal's girlfriend became upset and, after waking her daughter and sending her to her bedroom, she and Neal argued until Neal went to work the next morning. After Neal left for work, the girlfriend talked to her daughter, who at first denied that Neal had ever touched her inappropriately but then began to cry and asked her mother to call the police.

The girlfriend did not call the police at that point and instead told Neal that he needed to come home from work because of an emergency. The girlfriend also contacted her best friend, who was Neal's niece, and asked her to come to the apartment. Once everyone arrived at the apartment, Neal, his girlfriend, his niece, and the daughter congregated in one of the bedrooms. While they were together in the bedroom, the daughter, who was crying and hysterical, told the niece that Neal had sexual intercourse with her. Neal, who was sitting nearby, said nothing. The girlfriend then hit Neal several times until the niece was able to pull her off of him and call the police. The girlfriend shouted accusations at Neal and continued to do so when the police arrived on the scene a few minutes later. Neal's girlfriend was shouting, "He touched my daughter," and "He was with my daughter." Neal told one of the officers that his girlfriend had hit him but said nothing about the accusations being shouted by her.

A detective assigned to the case spoke with the daughter at the apartment, and the daughter told the detective that she had just disclosed to her mother that Neal had been having sexual intercourse with her. Later that day, the detective spoke again with the daughter at the police station, and the daughter provided additional details about the sexual abuse and stated that Neal last had sexual intercourse with her a few weeks ago. A case manager from the Washington County Department of Family and Children Services ("DFCS") also spoke with the daughter that day, and the daughter told her that Neal had touched her inappropriately when she was 12 years old, began having sexual intercourse with her several years ago, and had sexual intercourse with her earlier that month. A few days later, during a recorded forensic interview, the daughter reiterated that Neal had touched her inappropriately and had sexual intercourse with her for several years. The daughter also underwent a forensic medical examination that neither confirmed nor dispelled the sexual abuse allegations, but the nurse practitioner who performed the examination testified that vaginal tissue heals quickly and that in many forensic examinations there is no physical evidence of the alleged abuse.

Neal was indicted on three counts of child molestation. At the ensuing jury trial, the daughter, who was then 16 years old, testified about the sexual abuse as summarized above, and the State introduced into evidence her recorded forensic interview in which she described the abuse. Neal's girlfriend, his niece, the detective, and the DFCS case manager also testified about what the daughter disclosed to them regarding the sexual abuse. Neal elected not to testify but called one defense witness, an expert in child psychology and forensic interviewing, who testified to some of his concerns about the manner in which the forensic interview of the daughter was conducted.

Most pertinent to the present appeal, prior to the trial, the State filed a motion seeking permission to introduce evidence of Neal's alleged admissions by silence that occurred before his arrest, and the trial court granted the motion over objection from Neal.

Subsequently, during the trial, Neal's girlfriend, her daughter, and the niece testified that when they were together with Neal in the apartment in May 2013 and he was accused of having sex with the daughter, he said nothing. One of the responding officers also testified that Neal remarked that his girlfriend had hit him but said nothing regarding the girlfriend's accusations that he had sexually abused her daughter. During the State's opening statement and closing argument, the prosecutor called attention to the fact that Neal was silent when his girlfriend's daughter accused him of having sexual intercourse with her and when his girlfriend reiterated those accusations. And, at the State's request and over Neal's objection, the trial court instructed the jury on the issue of adoptive admissions by silence.

Following its deliberations, the jury found Neal guilty of the charged offenses. The trial court denied his motion for new trial, as amended, and in its order, the court held that evidence of Neal's pre-arrest silence was properly admitted as an adoptive admission under Georgia's current Evidence Code and the test enunciated in State v. Orr , 305 Ga. 729, 740 (4) (a), 827 S.E.2d 892 (2019).

1. Neal contends that the trial court erred in allowing the State to comment upon and introduce evidence that he remained silent when the daughter and girlfriend accused him of having sexual intercourse with the daughter. Quoting Mallory v. State , 261 Ga. 625, 630 (5), 409 S.E.2d 839 (1991), Neal maintains that any comment or evidence regarding a criminal defendant's pre-arrest silence is "far more prejudicial than probative" and must be excluded.² But our Supreme Court recently held in Orr that Georgia's current Evidence Code abrogated Mallory ’s categorical rule excluding comment or evidence concerning a defendant's pre-arrest silence. Orr , 305 Ga. at 739 (3), 827 S.E.2d 892. See Taylor v. State , 308 Ga. 57, 61 (3), n. 6, 838 S.E.2d 774 (2020). Instead, under the current Evidence Code, which applies here,³ "careful attention must now be paid to the specific evidence offered and the specific theory and rules the proponent of that evidence contends authorize its admission." Orr , 305 Ga. at 741 (4) (a), 827 S.E.2d 892. And one circumstance in which a defendant's pre-arrest silence may be relevant and admissible is in the context of an adoptive admission. Id. at 740 (4) (a), 827 S.E.2d 892.

As our Supreme Court explained in Orr and subsequent cases:

[U]nder Georgia's current Evidence Code, a defendant's silence may, in certain circumstances, communicate that he has adopted another person's statement as true, making that statement admissible under OCGA § 24-8-801 (d) (2) (B) [ ("Rule 801") ], which defines "admissions" not excluded by the hearsay rule when offered against a party to include "[a] statement of which the party has manifested an adoption or belief in its truth." ...

For evidence to qualify as a criminal defendant's adoptive admission under Rule 801 (d) (2) (B), the trial court must find that two criteria were met: first, that the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond, and second, that there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement.

Before admitting a statement as an adoptive admission, the trial court must determine, as a preliminary question, whether these two criteria have been met. The jury is then responsible for making the ultimate determination of whether the defendant adopted the statement as true. The circumstances to be considered include any physical or psychological impediments to the party's responding to the statement (for example, circumstances showing that a party feared to speak would negate any inference that the party agreed or adopted the statement).

(Citations, punctuation and footnote omitted.) Wilkins v. State , 308 Ga. 131, 134–135 (2), 839 S.E.2d 525 (2020). See Westbrook v. State , 308 Ga. 92, 102 (5) (b), 839 S.E.2d 620 (2020) ; Orr , 305 Ga. at 740 (4) (a), 827 S.E.2d 892. A trial court's decision whether to admit or exclude evidence as an adoptive...