                                FIRST DIVISION
                                BARNES, P. J.,
                             GOBEIL and PIPKIN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                    Please refer to the Supreme Court of Georgia Judicial
                    Emergency Order of March 14, 2020 for further
                    information at (https://www.gaappeals.us/rules).


                                                                        May 5, 2020




In the Court of Appeals of Georgia
 A20A1256. NEAL v. THE STATE.

      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

SE2d 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


       1
        According to the daughter, the mattress had been placed in the living room
“to get air from the air conditioning” because the bedrooms only had fans.

                                           2
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

                                           3
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,

                                           4
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.

                                           5
      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) (827 SE2d 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 SE2d 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). See Taylor v. State, __ Ga. __, __ (3), n. 6 (Case No. S19A1588, decided Feb. 10,

2020). Instead, under the current Evidence Code, which applies here,3 “careful

      2
        Neal does not contend that the introduction of evidence of his pre-arrest
silence was prohibited by the federal or state constitutions.
      3
       The current Evidence Code applies to trials commenced on or after January
1, 2013. See Ga. L. 2011, p. 99, § 101. Neal’s trial was in October 2014.

                                           6
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). 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).

       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

                                                 7
      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, __ Ga. __, __ (2)

(Case No. S19A1403, decided Feb. 28, 2020). See Westbrook v. State, __ Ga. __, __

(5) (b) (Case No. S19A1120, decided Feb. 28, 2020); Orr, 305 Ga. at 740 (4) (a). A

trial court’s decision whether to admit or exclude evidence as an adoptive admission

under Rule 801 (d) (2) (B) will not be disturbed on appeal absent an abuse of

discretion. Wilkins, __ Ga. at __ (2).

      We discern no abuse of discretion by the trial court in this case. The trial court

was authorized to find that an accusation that a defendant had sexual intercourse with

a minor was the type of statement that “under the circumstances, an innocent

defendant would normally be induced to respond.” (Citation and punctuation

omitted.) Orr, 305 Ga. at 740 (4) (a). See Westbrook, __ Ga. at __ (5) (b) (innocent

defendant would normally be induced to respond when another person stated that he

recognized the defendant in surveillance video of shooting); Wilkins, __ Ga. at __ (2)


                                          8
(concluding that “trial court could reasonably determine that a [third party’s]

statement referring to a bloody shirt in the trunk of the car that [the defendant] drove

up in and was standing next to as the shirt ‘we’ used to wipe blood and fingerprints

off a gun is the kind of statement that would normally prompt an innocent person to

clarify that he was not part of the ‘we’”). Likewise, the trial court was authorized to

find that there were sufficient foundational facts from which the jury could infer that

Neal heard, understood, and acquiesced in the accusations made by the daughter and

girlfriend, given that the accusations were made in the apartment in his presence. See

Wilkins, __ Ga. at __ (2) (evidence reflected that defendant “was looking at and

within earshot of [the person who] made the statement”). See also United States v.

Jenkins, 779 F2d 606, 612 (11th Cir. 1986) (conspirator’s statement to another person

was made in a bedroom where the defendant was present); United States v. Carter,

760 F2d 1568, 1579-1580 (VII) (A) (11th Cir. 1985) (defendants were sitting in car

with individual who made the incriminating statements). Moreover, the trial court was

entitled to find that there were no impediments to Neal responding to the

accusations.4 Accordingly, the trial court acted within its discretion in concluding that

      4
         As the trial court found, “[t]he only physical impediment would have been
[the girlfriend’s] punches, but those occurred after [Neal’s] silence” in the face of the
daughter’s accusations. (Emphasis supplied.) And there was evidence that the

                                           9
the daughter and girlfriend’s accusations of sexual abuse and Neal’s failure to

respond to them were admissible as adoptive admissions under Rule 801 (d) (2) (B).

See Westbrook, __ Ga. at __ (5) (b); Wilkins, __ Ga. at __ (2).

        In so ruling, we are mindful that Neal’s girlfriend continued to make

accusations once the police officers arrived and that one of the officers testified that

Neal did not say anything in response to those accusations. Where the accusatory

“statement was made by or in the presence of the police, the defendant’s silence may

be best explained as a cautious exercise of his right to remain silent.” Paul S. Milich,

Georgia Rules of Evidence § 18:4 (updated October 2019). In the present case,

however, Neal was not under arrest or police interrogation when he failed to respond

to his girlfriend’s accusations, and in fact, willingly spoke with the police by telling

them that his girlfriend had hit him. Nor has Neal argued that a distinction should be

drawn in this case between the accusations made before or after the police arrived on

the scene. Under these circumstances, we cannot say that the trial court abused its

discretion in permitting the officer to testify about Neal’s failure to respond to the



daughter pulled the girlfriend off of Neal before the police arrived. Hence, the trial
court was authorized to make the preliminary finding that the girlfriend striking Neal
was not the cause of his silence, but rather was a brief reaction to it and did not
prevent him from responding to the sexual abuse allegations.

                                          10
girlfriend’s allegations under Rule 801 (d) (2) (B). Compare United States v. Fletcha,

539 F2d 874, 877 (2d Cir. 1976) (defendant’s silence in response to incriminating

statement made by co-defendant not admissible as adoptive admission, where

statement was made in presence of special agent after all the defendants had been

arrested). And, in any event, even if Neal’s failure to respond to his girlfriend’s

accusation in the presence of the officer was not properly admitted as an adoptive

admission, its admission was harmless, given that Neal’s failure to respond to the

incriminating accusation made against him before the police arrived was properly

before the jury. Accord Cane v. State, 285 Ga. 19, 20–21 (2) (a) (673 SE2d 218)

(2009) (any error in admission of defendant’s statements made during videotaped

interview with police was harmless, given that defendant made the same statements

to another witness whose testimony was properly admitted at trial). See generally Hill

v. State, 306 Ga. App. 663, 665 (1) (703 SE2d 98) (2010) (“Evidence which is

cumulative of other legally admissible evidence of the same fact, renders harmless

admission of incompetent evidence.”) (citation and punctuation omitted).

      Lastly, we note that even if evidence of a defendant’s pre-arrest silence

constitutes an adoptive admission, the evidence still may be subject to exclusion



                                         11
under the balancing test set forth in OCGA § 24-4-403 (“Rule 403”).5 See Orr, 305

Ga. at 741-742 (4) (b). This is because “‘[i]n most circumstances silence is so

ambiguous that it is of little probative force,’ especially if the defendant does not later

testify inconsistently.” Id. at 742 (4) (b), quoting United States v. Hale, 422 U. S. 171,

176 (95 SCt 2133, 45 LE2d 99) (1975). Nevertheless, “exclusion of evidence under

Rule 403 is an extraordinary remedy that should be used only sparingly to prohibit

matter of scant or cumulative probative force, dragged in by the heels for the sake of

its prejudicial effect.” (Citation and punctuation omitted.) Id. And “the exercise of

discretion under Rule 403 is case-specific and usually turns on the trial court’s

assessment of the probative value and prejudicial effect of the particular evidence at

issue.” Id.

       Here, the trial court applied the Rule 403 balancing test and concluded that the

probative value of Neal’s pre-arrest silence was not substantially outweighed by the

danger of unfair prejudice. The court noted that Neal heard the accusation made

against him, “was capable of understanding the possible repercussions” of not


       5
        Rule 403 provides: “Relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”

                                            12
responding to an accusation of having sexual intercourse with a minor, was not under

arrest at the time, and was not impeded from responding. Under these circumstances,

and given the abuse-of-discretion standard of review, “[w]e cannot say that the trial

court abused its discretion in performing the balancing required by the rule.” Anglin

v. State, 302 Ga. 333, 337 (3) (806 SE2d 573) (2017). See Wilkins, __ Ga. at __ (2),

n.8 (upholding trial court’s decision not to exclude evidence of defendant’s silence

under Rule 403, where a jury could find that the defendant’s silence “was not

ambiguous but rather indicated his adoption of [the other individual’s] incriminating

statement about the crimes”) (emphasis in original).

        2. Neal also contends that the trial court erred by instructing the jury on the

issue of whether his silence was an adoptive admission. The trial court charged the

jury:

        Evidence has been presented that statements suggested the participation
        of the Defendant Sylvester Neal in the crimes charged in the indictment
        were made by [his girlfriend] in her apartment on May 24, 2013, in the
        presence of the Defendant and that such statements were not denied or
        objected to by the Defendant. If you should find that the Defendant was
        present and actually heard and understood those alleged statements and
        that those alleged statement were made under such circumstances that
        the Defendant would be expected to deny them if they were not true,


                                          13
      then you may consider whether his silence was an admission of the truth
      of those statements.6


According to Neal, the trial court’s instruction was improper because it “differed

noticeably” from the current pattern jury instruction for adoptive admissions

predicated on the pre-Miranda silence of a criminal defendant.7

      We conclude that the trial court’s instruction adequately informed the jury of

the pertinent issues pertaining to adoptive admissions by silence. As our Supreme

Court has explained:

      Many provisions of [Georgia’s current] Evidence Code were borrowed
      from the Federal Rules of Evidence, and when we consider the meaning


      6
         The record contains no request by the State for an adoptive-admission
instruction concerning Neal’s silence in response to the accusation made by the
daughter.
      7
       The current version of the pattern jury instruction on “Silence (Pre-Miranda)
as an Admission” provides:
      Silence in the face of a question or accusation may be considered for
      what it may show only if from all the evidence you find that
      – the (defendant) (person in question) (heard) (received) the question,
      accusation, or communication;
      – a reasonable person would normally be induced to respond;
      – there was an opportunity to respond; and
      – the (defendant) (such person) remained silent or did not respond.
Suggested Pattern Jury Instructions, Volume II: Criminal Cases § 1.36.15 (4th ed.,
2020).

                                        14
      of these provisions, we look to decisions of the federal appellate courts
      construing and applying the Federal Rules, especially the decisions of
      the United States Supreme Court and the Eleventh Circuit.


(Citation and punctuation omitted.) Timmons v. State, 302 Ga. 464, 468 (2) (a) (807

SE2d 363) (2017). The jury instruction given by the trial court mirrored the

admission-by-silence instruction given in Carter, 760 F2d at 1580 (VII) (A), n. 5,8

and in that case, the Eleventh Circuit found that the jury instruction “adequately

instructed the jury on the important considerations regarding such statements.” Id.

Furthermore, in Wilkins, __ Ga. at __ (2), n. 7, our Supreme Court stated that “[t]he




      8
       The jury instruction in Carter stated:
      Evidence has been presented that statements suggesting the participation
      of [the defendants] in the crimes charged in the indictment were made
      by [two individuals] in the car in the early morning hours of July 10th,
      1981, and that such statements were not denied or objected to by either
      [d]efendant . . . .

      If the jury finds that [the defendants] were present and actually heard
      and understood those alleged statements and that those alleged
      statements were made under such circumstances that those defendants
      would be expected to deny them if they were not true, then you may
      consider whether their silence was an admission of the truth of the
      statements.
Carter, 760 F2d at 1580 (VII) (A), n. 5.

                                         15
jury may be instructed on [the] issue [of admissions by silence]” and cited to Carter.

Consequently, we discern no error in the trial court’s instruction in the present case.

      Judgment affirmed. Gobeil and Pipkin, JJ., concur.




                                          16
