☢ test - Í
rather, he sought to clarify the reference, once injected into the case, by showing that defendant was not responsible for exposing the child to the movie. “Because defense counsel committed no evidentiary infraction, there was no manifest necessity for the declaration of a mistrial without Payne’s consent.” Mooney v. State, 266 Ga.App. 587, 597 S.E.2d 589 (March 25, 2004). “Mooney argues that, because the Rape Shield Statute prohibits ‘evidence relating to the past sexual behavior of the complaining witness,’ OCGA § 24-2-3, the court erred in applying the statute to evidence relating to the victim’s sexual activities occurring ‘when she claimed to have had sex with [him].’ That argument fails because it has already been determined that the phrase ‘“past sexual behavior” includes evidence of any sexual behavior by the victim before trial.’ [Cit.]” Such activities are not admissible even if they are part of the res gestae, because “‘the Rape Shield Statute … supercedes all evidentiary exceptions, including the res gestae rule.’ [Cits.]” Further held, trial court erred in excluding, based on Rape Shield Statute, prior statement given by victim to investigator, claiming that she had only “been with” her boyfriend during the time she later alleged that defendant molested her. “We recognize that the victim’s prior statement seemingly falls within the language of the Rape Shield Statute, as the statement does relate to the victim's ‘past sexual behavior.’ However, the record shows that the defense did not seek to use the victim’s prior statement to pursue the inadmissible topic of the her sexual history with individuals other than Mooney. Rather, the defense sought to use the statement to show that the victim’s ‘past sexual behavior’ did not include him and that the victim’s trial testimony concerning her sexual experiences with Mooney was a fabrication. As one of the purposes of the Rape Shield Statute is to assist the truth- seeking process, we believe that it should not provide ‘justification for letting the witness affirmatively resort to perjurious testimony in reliance on [Mooney’s] disability to challenge her credibility.’ [Cit.]” Error was harmless, however, given overwhelming evidence of defendant’s guilt. Osterhout v. State, 266 Ga.App. 319, 596 S.E.2d 766 (March 17, 2004). Rape Shield Statute applies to prosecutions for aggravated assault with intent to rape. Implicitly overruled by Abdulkadir v. State , 279 Ga. 122, 610 S.E.2d 50 (March 7, 2005), see above. Abdulkadir v. State, 264 Ga.App. 805, 592 S.E.2d 433 (December 5, 2003). Overruled by Abdulkadir v. State, 279 Ga. 122, 610 S.E.2d 50 (March 7, 2005) , see above. Ivey v. State, 264 Ga.App. 377, 590 S.E.2d 781 (November 26, 2003). In 4-3 decision, Court of Appeals reverses aggravated sodomy conviction due to trial court’s erroneous application of Rape Shield Statute to exclude evidence of prior consensual sex between defendant and victim. Evidence that victim had had consensual sex with defendant, for pay, on at least five prior occasions was admissible under OCGA § 24-2-3(b), which admits evidence “when the past sexual conduct directly involves the participation of the accused and supports an inference that the accused could have reasonably believed that the complaining witness consented.” “In deciding a case such as this, we must be wary of the fact that the Rape Shield Statute requires only a reasonable inference, not even a probable or necessary one as a prerequisite to admissibility.” Williams v. State, 263 Ga.App. 597, 588 S.E.2d 790 (October 9, 2003). In defendant’s prosecution for rape, statutory rape and child molestation, court properly ruled out evidence of sexual activity by minor victim prior to time frame in question, as well as speculative evidence that she “had been sneaking boys into the house at about the time of the alleged rape” which caused her pregnancy. (Court would have allowed actual evidence of sex with other people during time period in question, as defendant denied intercourse with victim and evidence would have gone to issue of whether there were other males who could have been responsible for her pregnancy, which resulted in spontaneous abortion.) Lengthy and excellent discussion about Rape Shield Statute and purposes behind it – to cut off “inquiries which could only be intended to support the inference that the victim consented to intercourse with the defendant.” The Statute encompasses behavior both before and after the alleged offense, and “prohibits all evidence relating to the past sexual behavior of the complaining witness, including marital history, mode of dress, general reputation for promiscuity, nonchastity or sexual mores contrary to community standards; in other words, her reputation concerning past sexual activity with persons other than the defendant.” See OCGA § 24-2-3 . Accord, Green v. State , 221 Ga.App. 436, 472 S.E.2d 1 (1996). Jenkins v. State, 246 Ga.App. 38, 539 S.E.2d 542 (September 18, 2000). Rape, child molestation and related convictions affirmed; trial court properly excluded evidence of victim’s sexual history. “Because the victim did not personally testify that she was a virgin, information about her sexual history could not be used to impeach the witness’s testimony. [ Fetterolf v. State, 223 Ga.App. 744, 748(7), 478 S.E.2d 889 (1996)].”
Made with FlippingBook Ebook Creator