                                    WHOLE COURT

                     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.
                                 http://www.gaappeals.us/rules


                                                                       June 30, 2017




In the Court of Appeals of Georgia
 A17A0240. ATKINS v. THE STATE.

         BETHEL, Judge.

         Jerome Atkins appeals the denial of his motion for a directed verdict on a

statutory rape charge, arguing the trial court erred when it found sufficient

corroborating evidence. Atkins further argues that the trial court erred in denying his

motion for a new trial because the trial court wrongly applied the Rape Shield Statute.

We disagree and affirm the denial of his motions for a directed verdict and for a new

trial.

               On appeal from a criminal conviction, we view the
               evidence in the light most favorable to the verdict and an
               appellant no longer enjoys the presumption of innocence.
               This Court determines whether the evidence is sufficient
               under the standard of Jackson v. Virginia, 443 U.S. 307, 99
               S.Ct. 2781, 61 L.Ed.2d 560 (1979), and does not weigh the
               evidence or determine witness credibility. Any conflicts or
               inconsistencies in the evidence are for the jury to resolve.
               As long as there is some competent evidence, even though
             contradicted, to support each fact necessary to make out the
             State’s case, we must uphold the jury’s verdict.


Traylor v. State, 332 Ga. App. 441, 442 (773 SE2d 403) (2015) (citation omitted).

      So viewed, the evidence shows that in November 2010, A. O.’s mother learned

that A. O. was pregnant after taking her to a gynecologist. Following the appointment,

A. O.’s mother discussed the pregnancy with A. O., who was thirteen years old at the

time. A. O. was asked who fathered the child, and she told her mother that the father

was a “boy in the neighborhood.” A. O.’s mother called Leon Surles1 to inform him

about the pregnancy. Surles did not believe A. O.’s explanation and, at some point,

threatened to give her a lie detector test.

      After returning home from school, A. O. called Atkins and his wife and told

them she was pregnant by Atkins. Following this conversation, Atkins called Surles

and told him that A. O. had called and that she planned to tell Surles she was pregnant

with Atkins’ child so that she could have an abortion. Atkins denied both paternity




      1
        Leon Surles is not A. O.’s biological father but maintains a father-daughter
relationship with A. O.

                                              2
and sexual contact with A. O. in his conversation with Surles.2 Surles told A. O.’s

mother about the call with Atkins.

       Surles then spoke with A. O. and threatened to “beat her” and “take her to the

police” if she did not tell the truth about the paternity of her child. A. O.’s mother told

A. O. that she knew Atkins had fathered the child, and A. O. said that was true. A.

O.’s mother then reported the incident to police.

       A. O. was interviewed by law enforcement personnel and reported two alleged

incidents with Atkins in which he engaged in sexual acts with her.3 A. O. stated that

Atkins was the only possible father of her child because she had not been sexually

active immediately prior to or after the August 2010 incident with Atkins.




       2
       Surles testified that in his conversation with Atkins, Atkins stated that A. O.
had asked Atkins to have sexual intercourse with her and had asked his wife to
perform oral sex on her, but that they had refused A. O.’s requests.
       3
        During her initial interview with police on November 20, 2010, A. O. claimed
that on August 15, 2010, while sleeping on the floor of Atkins’ apartment, she awoke
to find Atkins on top of her having sex with her. During her later forensic interview,
A. O. alleged for the first time that a prior incident occurred in June or July of 2010,
with both Atkins and his wife at their previous residence.

                                            3
      A. O. had an abortion on November 27, 2010, and a search warrant for the

DNA of the fetus was executed. Results of the DNA test showed that Atkins was not

the father of A. O.’s child.4

      Nevertheless, Atkins was indicted on charges of statutory rape and aggravated

child molestation. At trial, Atkins maintained his innocence and argued that A. O.

identified him as the father to conceal the child’s true paternity. Atkins sought to

question A. O. about the identity of the true father for the purpose of demonstrating

A. O.’s motive to falsely accuse Atkins. The trial court, relying on the Rape Shield

Statute, did not allow that line of questioning. A jury found Atkins guilty on both

counts.5 Following the verdict, Atkins moved for a new trial, which the trial court

denied. This appeal followed.

      1. The trial court found there was sufficient evidence from which the jury could

conclude beyond a reasonable doubt that Atkins was guilty of statutory rape.

However, Atkins contends the trial court erred in denying his motion for directed



      4
        At the time of the abortion, the fetus was approximately eleven weeks into
gestation, making the time of conception on or around September 11, 2010.
      5
        Atkins’ wife was indicted and tried jointly as a co-defendant on charges of
aggravated child molestation and child molestation. She was convicted on both
counts. Her case came before us on appeal as A17A1486.

                                          4
verdict on the charge of statutory rape because the evidence was insufficient to

corroborate A. O.’s allegations.6 We disagree.

      OCGA § 16–6–3 (a) provides that “[a] person commits the offense of statutory

rape when he or she engages in sexual intercourse with any person under the age of

16 years and not his or her spouse, provided that no conviction shall be had for this

offense on the unsupported testimony of the victim.”

      “On appeal, our review is restricted to the legal sufficiency of the evidence not

the weight of the evidence.” Carson v. State, 171 Ga. App. 527, 528 (320 SE2d 382)

(1984). “If there is any corroborating evidence, we will not go behind the jury and

pass upon its probative value.” McClendon v. State, 187 Ga. App. 666, 668 (371

SE2d 139) (1988) (citation omitted).

      This Court has held that the quantum of corroboration needed in a
      statutory rape case is not that which is, itself, sufficient to convict, but
      only that amount of independent evidence which tends to prove that the
      incident occurred as alleged. Slight circumstances may be sufficient
      corroboration and ultimately the question of corroboration is one for the
      jury. In that regard, a victim’s prior consistent statements, in the form of




      6
       Atkins did not challenge the sufficiency of the evidence with respect to the
child molestation charge.

                                           5
      her outcry to others as testified to by them, may constitute sufficient
      corroboration in a case of statutory rape.


Byrd v. State, 258 Ga. App. 572, 573 (574 SE2d 655) (2002) (footnotes and

punctuation omitted).

      In response to Atkins’ motion for directed verdict, the State argued the

allegations against Atkins were corroborated by the fact that (1) Atkins called Surles

to tell him that A. O. was going to say Atkins was the baby’s father; and (2) A. O.

called Atkins and told him she was pregnant with his baby. We are unpersuaded that

either statement provides sufficient corroboration.

      Here, the evidence shows that, some time after learning she was pregnant, A.

O. called Atkins and his wife and told them she was pregnant with Atkins’ child. That

statement—which was proven to be false— cannot be used to corroborate her

testimony.7

      This Court is equally unpersuaded by the argument that Atkins’ call to Surles

corroborated A. O.’s allegations because Atkins never admitted guilt. Surles testified

that Atkins called him and said, “A. O. was going to tell [Surles] she was pregnant by


      7
        The trial court likewise stated that it did not find the call from A. O. to Atkins
to be sufficient corroborating evidence.

                                            6
[Atkins] so she can get an abortion.” Surles also testified that, during that same

conversation, Atkins denied A. O.’s allegations. The State’s assertion that by calling

Surles and denying the allegations, Atkins implicated himself and corroborated A.

O.’s testimony, is nonsensical. The record before this Court is devoid of any evidence

wherein Atkins admits to having sexual or intimate contact with A. O. that would

meet the corroboration threshold.8




      8
        Compare Lewis v. State, 278 Ga. App. 160, 161 (1) (628 SE2d 239) (2006)
(although a victim recanted her prior statement, defendant’s admission of a sexual
relationship with the victim satisfied the corroboration requirement); Reece v. State,
241 Ga. App. 809, 810 (527 SE2d 642) (2000) (sufficient corroboration where
defendant bragged to another witness about the intercourse); Dye v. State, 205 Ga.
App. 781, 781 (2) (423 SE2d 713) (1992) (victim’s testimony was corroborated by
defendant who admitted that he attempted to have sexual intercourse with the victim
but did not believe there was penetration).

                                          7
         In its brief, the State also asserts that A. O.’s trial testimony was consistent with

her initial report to police and statements she made in her forensic interview.9 We

agree.

         This Court’s decisions hold that a victim’s own prior statements to police, if

found to be consistent with her later trial testimony, satisfy the corroboration

requirement. Brown v. State, 318 Ga. App. 334, 336 (1) (733 SE2d 863) (2012);

Patterson v. State, 233 Ga. App. 776, 776 (1) (505 SE2d 518) (1998). Here, a jury

could find that A.O.’s report to the police as well as the statements she made in her

forensic interview were consistent with, and corroborated, the testimony she provided

at trial. See id.; see also Cobb v. Hart, 295 Ga. 89, 91 (757 SE2d 840) (2014). At trial,


         9
         The State also argues that Atkins’ general “access and contact” with A. O.
provides the necessary and sufficient evidence to uphold the statutory rape
conviction. However, as Brown makes clear, we need not reach this argument
because, on their own, A.O.’s prior statements to police, which were consistent with
her trial statements, provided sufficient evidence of corroboration. We note that the
contact alleged here between Atkins and A. O. is different in kind and of a more
general nature than that which this Court addressed in Brown. In Brown, third-party
witness testimony indicated that the defendant was with the victim at the time and in
the location where the offenses occurred. 318 Ga. App. at 336 (1). Here, the record
establishes only that A. O. had been in Atkins’ home and had spent time there on
prior occasions. Beyond A. O.’s testimony, the record did not establish that Atkins
and A. O. were in contact with each other or in the same location when the offenses
were alleged to have occurred. We express no opinion on whether this sort of access
can serve as corroborating evidence.

                                               8
A. O. indicated that Atkins had sex with her on August 15, 2010. This was

corroborated by a statement she made in her initial report to the police to the same

effect. A. O. also made an identical statement in a later forensic interview. These

consistent prior statements to police provide sufficient corroboration. See Brown, 318

Ga. App. at 336 (1). Thus, we agree with the trial court that the State introduced

sufficient evidence of each element of the statutory rape charge, including sufficient

evidence of corroboration, such that the jury was permitted to find Atkins guilty

beyond a reasonable doubt on that charge.

      2. (a) Atkins argues the trial court erred in denying his motion for a new trial

and in ruling that the Rape Shield Statute prohibited him from inquiring about the

paternity of A. O.’s baby at trial. We disagree.

      On appeal, “[w]e review the denial of a motion for a new trial for abuse of

discretion.” Heatherly v. State, 336 Ga. App. 875, 876 (785 SE2d 431) (2016), cert.

granted (Nov. 2, 2016). The Rape Shield Statute, OCGA § 24-4-412, provides in

relevant part as follows:

      (a) In any prosecution for [sexual offenses including those at issue],
      evidence relating to the past sexual behavior of the complaining witness
      shall not be admissible, either as direct evidence or on



                                          9
      cross-examination of the complaining witness or other witnesses, except
      as provided in this Code section. . . .


      (b) In any prosecution for [such offenses], evidence relating to the past
      sexual behavior of the complaining witness may be introduced if the
      court, following the procedure described in subsection (c) of this Code
      section, finds that the past sexual behavior directly involved the
      participation of the accused and finds that the evidence expected to be
      introduced supports an inference that the accused could have reasonably
      believed that the complaining witness consented to the conduct
      complained of in the prosecution.


(Emphasis supplied.) Here, Atkins sought to ask the victim about paternity even

though, as the trial court explained, evidence had already been introduced to the

effect that “she was pregnant, that the pregnancy was aborted, and that the fetus was

tested and your client [was] excluded as the father.” As a result, the trial court held,

“any logical person” could conclude that the victim had had sex with someone

besides Atkins, such that the identity of that other person was both irrelevant and was

evidence as to her past sexual behavior and thus inadmissible.

      The statute clearly provides that evidence as to a victim’s past sexual history

is admissible only if the court “finds that the past sexual behavior directly involved

the participation of the accused[.]” OCGA § 24-4-412 (b). As the Supreme Court of


                                          10
Georgia has held, “[t]he defendant’s right to confront and cross-examine witnesses

concerning the victim’s past sexual behavior with others must bow to accommodate

the [S]tate’s interest in the Rape Shield Statute.” Harris v. State, 257 Ga. 666, 668 (1)

(c) (362 SE2d 211) (1987). And this Court has repeatedly held since Harris that a

trial court does not err in granting a motion in limine as to a victim’s sexual history

with a person other than the defendant. See Snow v. State, 228 Ga. App. 649, 651-652

(4), (5) (492 SE2d 564) (1997) (no error in court’s exclusion of evidence as to how

the victim had intercourse with “someone other than” the defendant and as to how her

hymen had become perforated); Williams v. State, 257 Ga. App. 54, 55-56 (1) (570

SE2d 362) (2002) (trial court properly excluded evidence as to victims’ past sexual

behavior when they testified that they had not had sex with the defendant at any time

before the attack at issue).10

       It is also well-settled that the Rape Shield Statute “supersedes all evidentiary

exceptions, including the res gestae rule” or any other rule tending to impeach a sex

crime victim. See Logan v. State, 212 Ga. App. 734, 735 (1) (a) (442 SE2d 883)

       10
          Although Snow and Williams were decided under the predecessor statute,
OCGA § 24-2-3, subsection (b) of that statute was maintained without change in
OCGA § 24-4-412 (b). See former OCGA § 24-2-3 (b) (“evidence relating to the past
sexual behavior of the complaining witness may be introduced if the court . . . finds
that the past sexual behavior directly involved the participation of the accused . . . .”).

                                            11
(1994) (en banc) (citations and punctuation omitted); Turner v. State, 312 Ga. App.

315, 319 (2) (718 SE2d 545) (2011) (victim’s alleged statement to defendant about

her sexual preferences and the lack of sexual activity between her and her boyfriend

was properly excluded as “the very type of evidence prohibited by the Rape Shield

Statute”); Green v. State, 221 Ga. App. 436, 436-37 (472 SE2d 1) (1996) (defendant

could not introduce evidence of victim’s past sexual behavior for purpose of showing

she may have been pregnant at the time the allegations were made). Compare

Richardson v. State, 276 Ga. 639, 641 (1) (581 SE2d 528) (2003) (defendant was

authorized to inquire as to victim’s “non-sexual” relationship with a former boyfriend

when her desire to rekindle that relationship could have led her to fabricate a false

claim of rape against the defendant to explain the blood and semen stains on the

former boyfriend’s jacket).

      Atkins’s requested line of inquiry concerned the identity of the father, which

could not “involve [Atkins’s] participation.” OCGA § 24-4-412 (b). Rather, the

identity of the victim’s former sexual partner, which could be prejudicial to the victim

in a number of ways, is precisely the information as to her “past sexual behavior” that

the statute is designed to bar. See Cox v. State, 241 Ga. App. 388, 390 (526 SE2d

887) (1999) (evidence regarding identity of victim’s sexual partner goes directly to

                                          12
victim’s past sexual behavior and is inadmissible under Rape Shield Statute). Because

the trial court did not err when it granted the State’s motion in limine, we affirm.

      (b) While we are satisfied that the evidence sought in this case falls behind the

wall erected by the Rape Shield Statute, we note potentially serious concerns

regarding the notion that the act is so broad as to exclude all evidence “relating to”

a victim’s past sexual behavior with the sole exception being evidence related to

activity which included the defendant. In so doing, we contemplate a scenario where

the prosecution asserts the Rape Shield Statute to exclude evidence of the DNA

results in a fact pattern similar to that in this case (i.e. where the DNA results

conclusively refute a claim of the defendant’s paternity) where the evidence would

be highly probative of innocence, directly related to the honesty of a witness, yet

clearly related to the past sexual behavior of the victim. The possibility of this

scenario unfolding in a criminal case raises myriad questions related to the

Confrontation Clause and Due Process protections of our constitutions. But this is not

the case before us.

      Judgment affirmed. Doyle, Branch, McMillian, Mercier, and Reese, JJ., concur

in Divisions 1 and 2 (a) and in judgment only in Division 2 (b). Miller, P. J., concurs



                                          13
in judgment only. McFadden, P. J., concurs in Division 1 and dissents in Division 2.

Barnes, P. J., concurs in Division 1 and dissents without opinion in Division 2.




                                        14
In the Court of Appeals of Georgia


 A17A0240. ATKINS v. THE STATE.



      MCFADDEN, Presiding Judge, concurring in part and dissenting in part.

      Because the trial court excluded evidence relevant to a plausible defense that

was not evidence of the victim’s past sexual behavior and therefore not within the

scope of the Rape Shield Statute, I respectfully dissent from Division 2. I concur fully

in Division 1.

      After initially accusing, by name, a boy who lived in her neighborhood of

impregnating her, A.O. leveled the same charge against Atkins. Notwithstanding

DNA evidence that belied that charge, prosecution of Atkins continued on the theory

that Atkins raped and molested her on other occasions.

      Atkins filed a motion in limine, arguing that he “should have been allowed to

cross-examine [A.O.] regarding her motive to make up a false story that he was the

father of the child.” Such evidence, he argued, would “go to her motive . . . [f]or
making up this story . . . [if] she’s trying to protect her boyfriend or someone along

that nature.”

      The trial court denied the motion, ruling:

      The pertinent evidence that will come out before the jury is that your
      client was alleged to be the father by the alleged victim; and DNA, the
      science, showed that he was not. That evidence will be placed before the
      jury. The jury can then conclude – she didn’t impregnate herself. So the
      jury can then conclude, without knowing who it was or how it happened,
      that she had sex with somebody else. So the Court doesn’t believe that
      any specific inquiry of the alleged victim about who, when, where and
      why is appropriate; and I do believe that it would violate rape shield.


      So Atkins did not address A.O.’s motive to lie in his closing argument. As

Atkins argues on appeal, “In the absence of cross-examination, a closing argument

about who the father could have been was inherently speculative and unpersuasive.”

(Emphasis in original).

      The state, however, did address motive in its closing. The state acknowledged

that A.O. had “said [Atkins] raped me and I got pregnant. Not possible — no

possibility that it could be anyone else’s.” But, the state argued, this falsehood should

be attributed to A.O.’s “13-year-old mind” and to “the process of disclosure.” A.O.,

the state assured the jury, “had no motive to lie.”


                                           2
      The issue before us is whether, under the facts of this case, the identity of the

person who impregnated A.O. and his relationship with her falls within the scope of

the Rape Shield Statute. It does not.

      The fact that A.O. was impregnated was in evidence. Only the identity of the

person who impregnated her and the nature of his relationship with her was excluded.

In other words, the sexual aspect of the intercourse between A.O and that person was

in evidence; the non-sexual aspect was not. See Richardson v. State, 276 Ga. 639, 641

(1) (581 SE2d 528) (2003).

      Our Supreme Court addressed the scope of the Rape Shield Statute when it

upheld its constitutionality: “a strong legislative attempt to protect the victim-

prosecutrix in rape cases by the exclusion of evidence which might reflect on the

character of the witness without contributing materially to the issue of the guilt or

innocence of the accused.” Harris v. State, 257 Ga. 666, 667 (1) (a) (362 SE2d 211)

(1987) (citation and punctuation omitted).

      The majority misperceives that scope. The Rape Shield Statute, the majority

notes with some dismay, “is so broad as to exclude all evidence ‘relating to’ a

victim’s past sexual behavior with the sole exception being evidence related to

activity which included the defendant.” The majority’s dismay would be warranted


                                          3
if its reading of the statue were correct. But it is not correct. The majority’s reading

of the statute is contrary to Harris, supra. And it is contrary to the language of the

statute itself — particularly language omitted from its truncated recitation of

subsection (a). That omitted language is emphasized here:

      (a) In any prosecution for [sexual offenses including those at issue],
      evidence relating to the past sexual behavior of the complaining witness
      shall not be admissible, either as direct evidence or on
      cross-examination of the complaining witness or other witnesses, except
      as provided in this Code section. For the purposes of this Code section,
      evidence of past sexual behavior includes, but is not limited to, evidence
      of the complaining witness’s marital history, mode of dress, general
      reputation for promiscuity, nonchastity, or sexual mores contrary to the
      community standards.


OCGA § 24-4-412 (a) (emphasis supplied). The list set out in that language has a

purpose. Statutes are to be read so as to avoid a “construction that will render some

of the statutory language mere surplusage[.]” Kennedy v. Carlton, 294 Ga. 576, 578

(2) (757 SE2d 46) (2014). It is not, of course, an exclusive list. Its purpose is to

illustrate the scope of the Rape Shield Statute. The list, and the term of enlargement

with which it begins, must be read in light of the statutory canon of construction,

ejusdem generis. Under this principle,



                                           4
      when a statute or document enumerates by name several particular
      things, and concludes with a general term of enlargement, this latter
      term is to be construed as being ejusdem generis (i.e., of the same kind
      or class) with the things specifically named, unless, of course, there is
      something to show that a wider sense was intended. [Cits.]


Center For A Sustainable Coast v. Coastal Marshlands Protection Committee, 284

Ga. 736, 737-738 (670 SE2d 429) (2008), citing Dept. of Transp. v. Montgomery

Tank Lines, 276 Ga. 105, 106 (n. 5) (575 SE2d 487) (2003). See also Wilson v. Clark

Atlanta Univ., 339 Ga. App. 814, 834 (2) (c) (794 SE2d 422) (2016) (“Under the rule

of ejusdem generis, the words ‘including but not limited to’ ordinarily should be

construed as referring to [things] of the same kind as those specially named.”)

(citations omitted). So the evidence excluded by the Rape Shield Statute is evidence

of the same kind or class as “evidence of the complaining witness’s marital history,

mode of dress, general reputation for promiscuity, nonchastity, or sexual mores

contrary to the community standards.” OCGA § 24-4-412 (a). The evidence excluded

here is not of that kind or class.

      Evidence of the identity of the person who impregnated A.O., of his

relationship to her, and of her possible motive to lie to protect him is not “evidence

which might reflect on the character of the witness without contributing materially


                                          5
to the issue of the guilt or innocence of the accused.” Harris, supra, 257 Ga. at 667

(1) (a). It is not evidence of A.O.’s “past sexual behavior.” OCGA § 24-4-412 (a). It

is not evidence of the same kind or class as the list of examples in the final sentence

of OCGA § 24-4-412 (a). It is tangential to evidence of sexual encounters — which

the state had introduced into evidence and which was central to its case.

       So the issue before us is controlled by Richardson, 276 Ga. at 639. As here, the

trial court in Richardson excluded “non-sexual questioning of the victim about her

previous relationship” through which Richardson sought to show a motive to lie, id.

at 641 (1), and the Supreme Court reversed. It was undisputed that the defendant and

victim had had a sexual encounter. Consent was the issue. The defendant had sought

to establish that the victim’s hope to rekindle a relationship with another man, and her

consequent wish to explain the physical evidence of her encounter with the defendant,

motivated her to lie. Here, as in Richardson, the excluded evidence touched on a

sexual encounter central to the case; but “[t]he proposed inquiry was confined to the

existence of a relationship . . . and whether [a] desire [related to] that relationship was

a motive to make a false claim of rape.” Id.

       Because the issue before us is the scope of the statute, it is irrelevant that the

Rape Shield Statute “supersedes all evidentiary exceptions[.]” Logan v. State, 212 Ga.


                                            6
App. 734, 735 (1) (a) (442 SE2d 883) (1994). And I agree with the majority that the

statutory exception for past acts involving the defendant, OCGA § 24-4-412 (b), is

also irrelevant.

      Application of the Rape Shield Statute is fact intensive. For example the

majority cites Cox v. State, 241 Ga. App. 388 (526 SE2d 887) (1999). We held in that

case, “Cox’s stepdaughter told her physician that she was sexually active with her

boyfriend. This evidence regarding the identity of her sexual partner goes directly to

the stepdaughter’s past sexual behavior and, under the facts of this case, is

inadmissible under the Rape Shield Law[.]” Id. at 390 (2). And the trial court in Cox

did admit the fact that the victim had been sexually active and excluded only the

identity of her boyfriend. So Cox does appear, at first glance, to be on all fours with

this case. But when we upheld the trial court’s ruling we emphasized — twice — that

we were doing so “under the facts of this case.” Id. at 390, 391 (2). The facts of Cox

were that, while the fact that the victim had been sexually active was admitted,

apparently as relevant to the defense that the victim’s boyfriend rather than the

defendant was the cause of certain physical evidence, the properly-excluded evidence

of the identity of her boyfriend would have supported only a rather dubious prior-

inconsistent-statement argument. Id. at 390 (2).


                                          7
      So in Cox evidence of the victim’s boyfriend’s identity was a substantially

gratuitous intrusion. It was “evidence which might reflect on the character of the

witness without contributing materially to the issue of the guilt or innocence of the

accused.” Harris, 257 Ga. at 667 (1) (a) (citation and punctuation omitted). It was not

evidence of the kind or class barred by the Rape Shield Statue, OCGA § 24-4-412 (a).

In this case, however, evidence of the identity of the person who impregnated A.O.

would not materially add to sexual evidence admitted by the state and was essential

to Atkins’s defense.




                                          8
                        ON MOTION FOR RECONSIDERATION



         MCFADDEN, Presiding Judge.

         I amend my earlier dissent in light of Atkins’s motion for reconsideration. He

makes a sound and responsive argument. In upholding the trial court’s oral ruling, the

majority has adopted a construction of the Rape Shield Statute that renders it so broad

as to be constitutionally suspect. That construction should be rejected under the canon

of constitutional avoidance. See Castillo-Solis v. State, 292 Ga. 755, 760 (2) (740

SE2d 583) (2013); Haley v. State, 289 Ga. 515, 521-522 (2) (712 SE2d 838) (2011);

see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 247-251 (1st ed. 2012). I write again to adopt that argument.

         The author of the majority opinion, writing for himself alone, acknowledges

in Division 2 (b) that “myriad questions related to the Confrontation Clause and Due

Process protections of our constitutions” are raised by “the notion that the act is so

broad as to exclude all evidence ‘relating to’ a victim’s past sexual behavior with the

sole exception being evidence related to activity which included the defendant.” I

agree.

         Moreover, it’s not a “notion.” It’s a holding. There is no daylight between the
so-called notion from which the majority author attempts to distance himself in

Division 2 (b) and the authoritative construction of the Rape Shield Statute in

Division 2 (a).

      The majority author dismisses those constitutional concerns on the basis that

“the evidence sought in this case falls behind the wall erected by the Rape Shield

Statute.” That is a non sequitur. Constitutions trump statutes; statutes don’t trump

constitutions.

      I also disagree with the majority author’s suggestion that those constitutional

concerns may be dismissed by distinguishing this case from one where the evidence

is “highly probative of innocence [and] directly related to the honesty of a witness.”

The rights afforded by the Confrontation and Due Process Clauses are not limited to

evidence an appellate court deems particularly persuasive.

      And in fact, the evidence at issue here is highly probative of innocence and

directly related to the honesty of a witness. It may be that A. O.’s testimony was

wholly true. But she’s told three different stories. It is at least plausible that she

falsely accused Atkins in order protect the person who impregnated her and to

dissuade Leon Surles from punishing her and that, when that accusation was belied

by DNA evidence, she changed her story again to avoid punishment for lying. The

ruling before us hobbled Atkins’s inquiry into that possibility. So the majority’s

overbroad reading of the Rape Shield Statute is not merely erroneous and
constitutionally suspect. It may well have perpetuated a terrible injustice.

      We should be mindful of an observation by then-Justice, later Chief Justice,

Weltner. He was addressing the writ of habeas corpus, but his words have broader

application.

      Too much of our limited judicial resources are consumed in looking for
      real or imagined errors in the convictions of people who are plainly
      guilty . . . . But we must not become so engrossed in the searching out
      of procedural faults which sometimes intrude in convicting the guilty
      that we forget the core purpose of the writ — which is to free the
      innocent wrongfully deprived of their liberty.


Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325 SE2d 370) (1985).
