                             THIRD DIVISION
                            ELLINGTON, P. J.,
           BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    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


                                                                      April 19, 2018




In the Court of Appeals of Georgia
 A18A0227. BURNS v. THE STATE.

        PER CURIAM.

        This appeal arose from a granted application for interlocutory review wherein

James Phillips Burns challenged the trial court’s grant of the State’s motion in limine

to exclude evidence that the alleged victim had previously made a false accusation

of sexual abuse against another individual. Because we conclude that the trial court

erred, we reverse the trial court’s order granting the motion in limine and remand the

case.

        The record shows that in December 2015, Burns’s wife discovered that her

daughter, Burns’s stepdaughter, had sent a friend a one-paragraph Twitter message

about a sexual incident that she had with Burns the previous July. Toward the end of

the paragraph, the victim stated, “And my brother’s best friend tried to rape me.”
Burns’s wife contacted law enforcement, and an investigation ensued. When asked

about the time her brother’s best friend tried to rape her during a forensic interview,

the stepdaughter replied, “Oh, I just made that up.” She explained that she did not

know why she said it and suspected that she was high on marijuana at the time. When

the police interviewed Burns’s wife, she also stated that her daughter told her she just

made up the story. Burns was charged with committing aggravated sexual battery,

aggravated sodomy, and incest upon his stepdaughter.

      The State filed a motion in limine, based on the rape shield statute. During the

hearing on the motion, defense counsel agreed that evidence of the victim’s past

sexual behavior was inadmissible but indicated that he intended to introduce evidence

that the stepdaughter had admittedly falsely accused another person of sexual

misconduct. Citing Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), defense

counsel argued that such evidence did not implicate the rape shield statute and was

admissible as pertaining to the stepdaughter’s credibility and to Burns’s right to

confront her as a witness called against him.

      After the hearing, the trial court concluded that the prior accusation is

inadmissible under OCGA § 24-4-403. Specifically, the court ruled,



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      As a statement made and disavowed, it is a false statement. The Court
      must, however, further evaluate the statement under the appropriate
      rules of evidence. The statement the defendant seeks to admit amounts
      to an aside in [a] much longer paragraph and was immediately
      disavowed by the victim upon questioning. The statement sought to be
      introduced lacked specificity does not have significant probative value
      for a fact finder otherwise charged with determining whether the claims
      of the victim against the defendant are true. [ ] Thus, the Court finds that
      the probative value of the statement in question is substantially
      outweighed by the danger of unfair prejudice and confusion of the issues
      and is inadmissible under OCGA § 24-4-403.


Burns filed an application for interlocutory appeal, which we granted, and this appeal

followed. Burns challenges the trial court’s conclusion that the prior false allegation

is inadmissible under OCGA § 24-4-403, insisting that its probative value is not

substantially outweighed by the danger of unfair prejudice or confusion of the issues.

He also contends that the allegation is admissible under OCGA § 24-6-608.

      1. At the outset, we point out that the parties correctly concluded that evidence

of the admittedly false accusation is not barred by the rape shield statute. That Code

section pertinently provides that, in prosecutions for certain sexual offenses,

“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


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  witness or other witnesses.” OCGA § 24-4-412 (a) (emphasis supplied). In Smith v

  State, 259 Ga. 135, our Supreme Court concluded that the rape shield did not bar

  evidence of the victim’s alleged false allegations of sexual misconduct by persons

  other than the defendant, finding persuasive the reasoning of other jurisdictions that

  “[such] evidence does not involve the victim’s past sexual conduct but rather the

  victim’s propensity to make false statements regarding sexual misconduct.” Id. at

  136-137 (1).1 The Court went on to instruct, however, that “before such evidence can

  be admitted, the trial court must make a threshold determination outside the presence

  of the jury that a reasonable probability of falsity exists.” Id. at 137-138 (1) (citation

  and punctuation omitted). See also Morgan v. State, 337 Ga. App. 29, 31 (1) (785

  SE2d 667) (2016). The language set forth in the order2 in this case shows that the trial

  court made the required threshold determination. Accordingly, the contested evidence

  is not barred by the rape shield statute.



      1
        Although Smith was decided under the old Evidence Code, cases such as Morgan
v. State, 337 Ga. App. 29, 31 (1) (785 SE2d 667) (2016), indicate that Smith’s holding
remains intact under Georgia’s new Evidence Code. See Morgan, 337 Ga. App. at 31 (1),
quoting Smith, 259 Ga. 135.
      2
       In its order, the trial court stated, “As a statement made and disavowed, it is a false
statement.” Also, at the hearing, the trial judge remarked, “[U]nder the Smith test, there’s
no dispute, the State doesn’t dispute that it’s a false statement.”

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      2. Burns asserts as error the trial court’s conclusion that the “probative value

of the statement in question [was] substantially outweighed by the danger of unfair

prejudice and confusion of the issues and is inadmissible under OCGA § 24-4-403.”

That Code provision does allow for the exclusion of relevant evidence when the

probative value of the evidence is substantially outweighed by the concerns

referenced by the trial court. Our Supreme Court has explained, however, that OCGA

§ 24-4-403 should be used “only sparingly” because it permits the exclusion of

concededly relevant evidence. Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633)

(2016). Furthermore, under the principles recognized in Smith, this exclusionary rule

must yield to greater constitutional concerns. There, our Supreme Court considered

the State’s argument that even if the rape shield statute did not prohibit testimony that

the victim had falsely accused other men of sexual misconduct, such evidence was

barred by other evidentiary rules (relating to the manner in which a victim’s character

and general reputation for veracity could be attacked). Smith, 259 Ga. at 137 (1). The

Smith Court rejected that argument on constitutional grounds, noting that a majority

of the jurisdictions had determined that the evidentiary rules (preventing evidence of

a specific act of untruthfulness) “must yield to the defendant’s right of confrontation

and right to present a full defense.” Id.

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       Burns maintains that because there is no forensic or DNA evidence in this case,

his defense will rest largely on the degree to which the factfinder determines that the

stepdaughter lacks credibility. It is well settled that the right of confrontation includes

allowing the cross-examiner “to impeach, i.e., discredit, the witness” called against

him. Davis v. Alaska, 415 U. S. 308, 316-318 (94 SCt 1105, 39 LEd2d 347) (1974)

(defense counsel should be permitted “to expose to the jury the facts from which the

jurors, as the sole triers of fact and credibility, could appropriately draw inferences

relating to the reliability of the witness”). Here, the trial court excluded evidence of

the stepdaughter’s false accusation because it concluded that the evidence “lacked

specificity” and created “unfair prejudice and confusion of the issues.” It is not clear,

however, how a false accusation could contain adequate specificity about an incident

that never occurred. And it does not seem that evidence of an allegation against a

totally unrelated third party presents “danger of unfair prejudice [or] confusion of the

issues” in this prosecution against one defendant, for sexual acts committed on one

day, against one individual. See Smith, 259 Ga. at 137 (1) (noting that evidence of the

victim’s prior false allegations about sexual misconduct of men other than the

defendant involved “the victim’s propensity to make false statements regarding

sexual misconduct”); see also Olden v. Kentucky, 488 U. S. 227, 232 (109 SCt 480,

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102 LE2d 513) (1988) (explaining that speculation that jurors would be biased by

evidence of witness’s interracial relationship did not justify exclusion of evidence

having the potential to demonstrate falsity of witness’s testimony). Given these

circumstances, exclusion of the contested evidence at this preliminary stage was

erroneous.

      3. Next, Burns asserts that the prior false allegation is also admissible under

OCGA § 24-6-608 (b), which provides that

      [s]pecific 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[.]


Burns’s assertion aligns with the constitutional concerns discussed above, as set forth

in Smith, 259 Ga. at 137 (1).

      In sum, the contested evidence should not have been barred either by the rape

shield statute or by OCGA § 24-4-403, and the erroneous exclusion of such evidence

has been ruled reversible – even where other evidence of the victim’s reliability (or

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lack thereof) was presented to the jury. See, e.g., Smith, supra at 137-138 (1) (sexual

offense convictions reversed because prior false allegation should have been admitted

even though other evidence of victim’s untruthfulness was admitted). See also Benton

v. State, 265 Ga. 648, 650 (5) (461 SE2d 202) (1995) (reversing defendant’s

convictions of incest and other felonies committed upon 16-year-old stepdaughter,

where convictions were supported largely by the victim’s testimony, yet evidence –

that the victim had alleged sexual misconduct against another man, then recanted that

allegation – was erroneously excluded). Accordingly, the grant of the State’s motion

in limine is reversed, and this case is remanded.

      Judgment reversed and case remanded. Division Per Curiam. All Judges

concur.




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