DOYLE, Presiding Judge.
After a jury trial, the Gwinnett County Superior Court convicted Brandon Pate of statutory rape,
So viewed, the record establishes that in December 2008, the victim, M.R., reported that two years earlier in late December 2006 or early January 2007, Pate entered her bedroom, demanded sexual intercourse, produced a knife, and threatened to injure M.R.'s father if she refused his demand. M.R.'s friend, Kaila, was a guest at M.R.'s home that night, and she corroborated M.R.'s testimony that Pate possessed a knife and demanded sex. Kaila also testified that she witnessed M.R. and Pate have sexual intercourse that night.
In addition to M.R. and Kaila, the State presented the testimony of Dylan Toves, who testified that M.R. disclosed the sexual assault to him in the fall of 2007, prior to her December 2008 outcry, and Officer T.D. Roach, who initially investigated the outcry M.R. made in December 2007.
The State presented the similar transaction testimony of M.K., who testified that she was dating Pate in 2007, and on April 26 of that year, he came to her house, where she was alone. M.K. testified that Pate began getting rough and forced her to have sex. Although he did not have a weapon, he threatened to kill her father if she told anyone. M.K. did not report the incident to law enforcement, but she later told a friend and then her parents. M.K. testified that she did not know the victim or Kaila prior to her appearance in court that day.
The jury convicted Pate of statutory rape and the related aggravated assault and possession of a knife during the commission of the felony, but acquitted him of rape, two counts of child molestation, two counts of burglary, one count of aggravated assault with the intent to rape, terroristic threats, and two counts of cruelty to children in the third degree. Pate filed a motion for new trial, which he later moved to dismiss. The trial court granted the motion to dismiss, and Pate filed this appeal of his conviction.
1. Pate first argues that the trial court erred by allowing prior consistent statements made by M.R. to Toves and Officer T.D. Roach, which statements amounted to inadmissible hearsay that improperly bolstered M.R.'s testimony.
(a) With regard to Toves's testimony, Pate contends that the trial court erred by allowing him to testify that M.R. made allegations of sexual assault by Pate to Toves in the fall of 2007 because Toves testified before M.R. took the stand, and therefore, M.R.'s veracity had not been challenged at the time Toves testified. Nevertheless, as the Supreme Court has explained, "[a]lthough [M.R.] had not yet testified nor had there been an attack on her credibility when [Toves testified], [M.R.] subsequently did testify to statements with which [Toves's testimony was] consistent.... [Because M.R.'s] credibility was eventually attacked[,] the tape was properly admitted as a prior consistent statement."
Nevertheless, any error in admitting this evidence was harmless.
Significantly, the jury acquitted Pate of the most serious sexual offenses as well as the related charges of aggravated assault, burglary, terroristic threats, and cruelty to children. These acquittals establish "that the jury was able to objectively consider the evidence of the charges, despite the improper bolstering...."
2. Pate next contends that the trial court erred by dismissing a juror without sufficient cause. We disagree.
"Under OCGA § 15-12-172, a trial court is vested with the discretion to discharge a juror and to replace him or her with an alternate juror at any time during the proceedings, as long as the trial court has a sound legal basis to do so."
After a number of witnesses had testified, the defense called witness Hayley Lawrence to the stand, and the juror at issue passed a note to the judge stating that she knew the witness because of an affiliation with her daughter's cheerleading squad. The trial court then removed the jury and allowed the attorneys to voir dire the individual juror as to whether her acquaintance with the witness would affect her ability to deliberate and impartially apply the law to the facts of the case. After the voir dire, the State moved for the court to excuse the juror from service and seat the alternate juror, who had been present at the trial and listened to the testimony presented. The trial court excused the juror, finding that she believed her acquaintance with the witness and with the school (where the defendant, various witnesses, and the juror's son had attended classes) made her very uncomfortable and would affect her ability to deliberate in the case. Although she did agree with defense counsel that she would impartially apply the law to the facts of the case, she also expressed a great deal of unease about being involved in the case because of her ties with the school.
After observing voir dire of the juror in question, the court granted the State's motion to excuse her because it determined that her ability to deliberate would be compromised by her connections to the school community and at least one witness. Although the juror did state that she would make a determination of the verdict based on the facts presented during testimony and the law, the trial court was within its discretion to excuse her based on the totality of the circumstances. "This ruling had a sound basis in that it served the legally relevant purpose of preserving public respect for the integrity of the judicial process."
3. Pate contends that the trial court erred by admitting bad character evidence that was irrelevant to the proceedings. We disagree.
Moreover, "[a]ny party, including the party calling the witness, may attack the credibility of a witness."
During the defense's case, Pate called Justin Crutcher, who testified to being Pate's best friend, as a witness. Crutcher testified that he had attended a party with Kaila and overheard her saying that M.R. had fabricated the allegations against Pate and that the attack never occurred. The State then cross-examined Crutcher, and Pate contends that the following line of questioning resulted in the admission of irrelevant bad character evidence of Pate.
THE STATE: Did you ever hear of any allegations of the knife being involved with the alleged rape ... ?
WITNESS: No, sir.
THE STATE: Back in 2007[,] what kind of knife did the Defendant carry?
WITNESS: He never carried a knife.
THE STATE: Ever?
WITNESS: Ever.
THE STATE: Did you know the Defendant in May of 2007?
WITNESS: Yes, sir.
THE STATE: And were you with the Defendant on Memorial Day 2007 at the pool at the Windsong Subdivision?
WITNESS: Yes, sir.
THE STATE: I'm going to ask you again, what kind of knife did the Defendant carry at that time?
WITNESS: Brandon did not have a knife, sir.
THE STATE: Were you involved in an altercation on that day ...
At this point, the Defendant objected and the State proffered its line of questioning prior to the trial court overruling the Defendant's objections on character and relevance. The State continued its questioning before the jury, asking Crutcher if he and the Defendant were in a confrontation at the pool. Crutcher testified that some individuals asked them to leave. The questioning continued as follows:
At the close of the Defense's case, the State called as rebuttal witnesses Sam Bannister and Deidra Lawrence, both of whom testified that Pate possessed a knife at a pool party Memorial Day weekend in 2007. Lawrence also testified that Crutcher was at the party with Pate and Pate made no effort to conceal the knife.
Here, the initial question posed to Crutcher by the State — what type of knife Pate carried in 2007 — did not inject bad character evidence into the trial because the mere fact that Pate carried a knife does not impute bad character.
4. Pate next contends that the trial court erred by refusing to allow him to cross-examine M.R. regarding an alleged drug sale at school, which violated his Sixth Amendment right to confrontation. We disagree.
Moreover, while
On December 12, 2008, M.R. was alleged to have sold marijuana on the campus of her high school, which incident was reported to school officials on December 15 — the same date upon which M.R. made the outcry to her father. The delinquency petition in connection with the December 12 narcotic sale was not filed until January 2009.
After the parties examined M.R.'s juvenile records in camera, the trial court determined that any cross-examination by the defense of M.R. regarding the matter would be an overly speculative attack on her credibility because she was not on probation and no charges were pending against her, either at the time of trial (March 2010) or at the time of her outcry (December 2008). Given these conclusions combined with Pate's failure to "show evidence of a deal or any hope of a deal between [M.R.] and the State," the trial court did not abuse its discretion by prohibiting Pate from impeaching [M.R.] with impermissible character evidence concerning her sale of narcotics at school.
5. Pate maintains that the trial court also erred by partially closing the courtroom during the testimonies of M.R. and M.K. We disagree.
Although M.R. and M.K. were 16 at the time of trial, another statute provides that
"[T]his Court [has] held that the partial closure permitted under [OCGA § 17-8-54] does not violate a defendant's Sixth Amendment right to a public trial."
In this case, the trial court did not abuse its discretion by partially closing the courtroom during the testimonies of M.R. and M.K., who both testified that at the ages of 13 years old, Pate, during separate incidents, forced them to engage in sexual intercourse with threats of violence to family members, in one instance, brandishing a knife.
6. Finally, Pate maintains that the trial court erred by allowing irrelevant and prejudicial testimony concerning alleged harassment of M.R. by Pate and his friends, including Crutcher. We disagree.
As an initial matter, because Toves's hearsay testimony of any of the instances of harassment was cumulative to M.R.'s direct testimony on the issue, there was no error on the part of the trial court to admit it simply on the basis that it was hearsay.
Judgment affirmed.
ELLINGTON, C.J., concurs in judgment only.
