Page v. State

903 S.E.2d 815

PAGE

v.The STATE.

A24A0427

Court of Appeals of Georgia.

June 25, 2024

Joseph Scott Key, Kayci Nicole Timmons, for Appellant.

Elizabeth Dalia Racine, Aimee Fatemeh Sobhani, for Appellee.

Padgett, Judge.

A jury found Ronald Page guilty of two counts of rape, two counts of aggravated sexual battery, two counts of incest, and two counts of child molestation.¹ Following the denial of his amended motion for new trial, Page appeals, arguing that the trial court erred in denying a motion in limine to allow discussion with the victim about extrinsic evidence of her character for untruthfulness. Further, Page argues the trial court erred in allowing a witness to testify who had been left off the witness list prior to trial. Moreover, Page argues the trial court erred in giving an Allen charge. Lastly, Page raises several claims of ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict,² the evidence shows that Page had sole custody of his two daughters. In 2018, the family lived in a three-bedroom apartment in Douglasville, Georgia, with Page’s niece and her four children. Page shared a bedroom with his two daughters.

Over the Thanksgiving holiday , Page was alone in the apartment with his two daughters. That day, Page instructed his oldest daughter ("the victim") to wash in the bathroom. When the victim came out of the bathroom, Page told the victim to sit on the couch and spread her legs open. Page then instructed the victim to go upstairs into one of the rooms, and he followed her. Once in the room, Page told her to take off her clothes. Although the victim said she did not want to take her pants off, she complied. Page then instructed the victim to lie down on a pillow, with her legs spread open—like how he had shown her on the couch—and pull her underwear to the side. Page then kneeled down beside the victim and started rubbing his penis on her vagina. The victim started to cry and asked if she could stop, to which Page told her no. The victim testified that on this occasion, Page rubbed his penis on her vagina and inserted his fingers inside her vagina. She later said her father had put his penis in her vagina. After this incident, the victim confided in her friend Z. J. that her dad "took her in sexual ways."

A second incident occurred in December when the victim was kept home from school by herself. On that day, Page again told the victim to take her pants off. Page then repeated his actions from Thanksgiving, including placing his penis and fingers in the victim’s vagina.

After the second incident, Page and his daughters moved to Charlotte, North Carolina, to live with his brother and his brother’s wife. A few months after moving to North Carolina, the victim confided in her younger sister before telling her aunt and uncle about the incidents of abuse in Georgia. The following day, the victim’s aunt and uncle went to the Charlotte police with the information. A detective then conducted a forensic interview of the victim. During the forensic interview, the victim said Page put his penis into her vagina. The case was turned over to detectives in Georgia, who obtained a warrant for Page’s arrest.

Thereafter, Page was charged with two counts of rape, two counts of aggravated sexual battery, two counts of incest, and two counts of child molestation. Page was subsequently tried and convicted of all counts.

1. On appeal, Page argues that the trial court erred in precluding him from fully exploring the victim’s character for untruthfulness. During trial, Page sought to introduce evidence that the victim lied to her family. The victim was asked on cross-examination if her aunt, with whom she lived, had asked her "to wear a shirt that said something about lying?" The victim responded affirmatively, saying she had to wear the shirt because she "was lying about school and phones and stuff." The prosecutor objected to the line of questioning, and the trial court sustained the objection.

A short time later, the trial court excused the jury and the witness in order to revisit its ruling. The trial court recognized that OCGA § 24-6-608 might, in some circumstances, permit inquiry into specific instances of a witness’s conduct if probative of the truthfulness or untruthfulness of the witness. Defense counsel questioned the victim out- side the presence of the jury, and the victim said that her aunt made her wear a shirt with the word "liar" on it due to instances in which she had lied about cell phones. The victim was not allowed to be on social media, but she used her aunt’s old cell phone to post on Instagram. According to the victim, when asked, she lied and told her aunt and uncle that she did not have the cell phone. In another incident, the victim brought home a cell phone she said she found at school. She did not tell her family about the phone, but police came the next day to retrieve it.

After hearing the proffer, the trial court ultimately precluded the line of questioning, finding that the victim’s statement regarding a collateral matter was extrinsic evidence that could not be used to attack her character for truthfulness.

Thereafter, Page sought clarification of the trial court’s ruling to the extent he sought to cross-examine the victim’s aunt regarding the victim’s "liar" t-shirt. The State argued the t-shirt was "extrinsic evidence that is … ancillary and irrelevant to the issues in this case." The trial court responded that its ruling remained unchanged, stating that the extrinsic evidence was not "sufficiently related to this case." Page’s attorney then asked if the defense was allowed to ask about a witness’s "overall character of truthfulness or untruthfulness?" The trial court said "you can ask a witness if they know the reputation in the community, but you’ve got to meet the foundation. I presume you’re talking about the reputation of the victim in the community, which is kind of interesting since these girls have moved around so much. I don’t know how you’re going to get to that." Page then made no attempt to question the aunt about the victim’s character for truthfulness or untruthfulness.

Prior to the close of evidence, the prosecutor, as an officer of the court, made the court aware of a case—Gonzales v. State—which recognized that testimony under OCGA § 24-6-608 (a) relates to a personal assessment of character rather than community feelings. See Gonzales v. State, 345 Ga. App. 334, 338 (2) (b) (ii), 812 S.E.2d 638 (2018) Id. at 338 (2) (b) (ii), 812 S.E.2d 638 (physical precedent only). The trial court concluded that Gonzales, which was physical precedent only, was not binding.³ Page made no argument in response, and he did not seek to question the aunt further.

On appeal, Page argues that he was permitted under OCGA § 24-6-608 to attack a witness’s character for truthfulness or untruthfulness and that the trial court’s ruling "gutted" the defense. We find no reversible error.

OCGA § 24-6-608 governs the admissibility of evidence pertaining to the character and conduct of a witness. Subsection (a) of the statute provides, in relevant part, that a witness’s credibility may be attacked "in the form of opinion or reputation" subject to the limitation that such "evidence may refer only to character for truthfulness or untruthfulness[.]" Subsection (b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime as provided in Code Section 24-6-609, or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, 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.

[1, 2] Under the express language of the statute, attacking a witness’s character for truthfulness may not be done through the use of extrinsic evidence, but the trial court—in its discretion—may permit inquiry on cross-examination as to specific instances of conduct. See, e. g., Douglas v. State, 340 Ga. App. 168, 172 (2), 796 S.E.2d 893 (2017); United States v. Dawson, 434 F.3d 956, 957 (7th Cir. 2006). In other words, there is a distinction between attempting to introduce extrinsic evidence to establish that a witness has been untruthful on a prior occasion versus inquiring into such conduct on cross-examination. See id. With regard to the former, there remains an absolute bar on extrinsic evidence offered solely to prove the witness’s general character for veracity. See U. S. v. Gbenedio, 95 F.4th 1319, 1334 (III) (D) (11th Cir. 2024) ("There is an absolute bar on extrinsic evidence when the sole purpose for offering the evidence is to prove the witness’s character for veracity. In other words, extrinsic evidence may never be admitted to prove that someone tends to lie.") (citations and punctuation omitted). Indeed, even if the witness were to lie on cross-examination concerning a prior occasion in which the witness lied about a topic unrelated to the case on trial or that witness’s testimony while on the stand, the questioner would be required to accept the witness’s answer and could not impeach that witness through the use of extrinsic evidence. See United States v. DeSantis, 134 F.3d 760, 765 (II) (A) (6th Cir. 1998); see also Sconyers v. State, 318 Ga. 855, 867 (4) (b), 901 S.E.2d 170 (2024) (discussing the applicability of OCGA § 24-6-608 (b) to establish bias of a witness). "Put differently, the absolute prohibition applies only when extrinsic evidence is offered to prove that the witness is a liar in general. But it does not bar extrinsic evidence offered to prove...