FIFTH DIVISION MCFADDEN, P. J., HODGES 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. https://www.gaappeals.us/rules
April 17, 2025
In the Court of Appeals of Georgia A25A0667. MARTINEZ-GASPAR v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, Guillermo Martinez-Gaspar was convicted of rape, OCGA §
16-6-1 (a) (1), and furnishing alcohol to a person under 21 years of age. OCGA § 3-3-23
(a) (1). The trial court sentenced him to serve 25 years in prison followed by life on
probation. Martinez-Gaspar appeals the denial of his motion for new trial. He argues
that the trial court erred in refusing to admit into evidence a statement the victim’s
mother made on the call to 911 and a statement included in a police report. But the
statements are hearsay, and the trial court did not abuse his discretion in excluding
them. So we affirm.
1. Trial evidence The trial evidence showed that the victim, who was 18 years old at the time of
the incident, lived with her parents. Martinez-Gaspar lived in the house next door.
When they encountered each other outside, Martinez-Gaspar would offer the victim
beer.
The day of the incident, the victim was at her house with a friend watching
movies. Her parents were not home. She wanted a beer, so she knocked on the
entrance to Martinez-Gaspar’s residence and asked him for a beer. He invited her in.
They each drank a beer, and then Martinez-Gaspar began touching the inside of the
victim’s thigh. She moved his hand, said “no,” and said that she needed to get back
to her friend. He pushed her onto the bed, forcibly pulled down her shorts and
underwear, and penetrated her with his penis. She ran home, told her friend what had
happened, and called her parents. Her mother called 911.
2. 911 call
Martinez-Gaspar argues that the trial court abused his discretion by prohibiting
him from introducing a statement by the victim’s mother in the recording of her call
to 911 and from asking witnesses about it, because it was a prior inconsistent
statement, not hearsay. See OCGA § 24-8-801 (d) (1) (A). We review that ruling for
2 abuse of discretion and find no such abuse. See Thomas v. State, 293 Ga. 829, 833 (4)
(750 SE2d 297) (2013).
In his opening statement, defense counsel told the jury that when the victim’s
mother called 911 to report the crime, the mother stated that “I think she just jerked
him off or something.” That idea came up again when, on cross-examination, defense
counsel asked the victim, “When you told your mom what happened, is it correct to
say that you told her that you had just jerked him off?” The victim responded, “No.”
The idea came up a third time when defense counsel asked the responding law
enforcement officer whether it was correct that the 911 dispatcher had informed the
officer that “a sexual incident had happened and the alleged victim had just jerked off
the defendant[?]” Before the officer answered, the state objected on the ground that
the question depended on hearsay. The court sustained the objection.
At the beginning of the proceedings the next day, before the jury had entered
the courtroom, the state raised the issue of defense counsel’s references to the mother
telling the 911 operator that she thought that the victim had “just jerked him off or
something.” The state asserted that these references misrepresented what the mother
had said on the 911 call. According to the state, the mother actually said, “I think he
3 just jerked them off or something,” referring to the victim’s clothes. The state asked
to play the recording of the 911 call for the court, and defense counsel agreed.
After the recording was twice played for the court, the state asked the court to
instruct defense counsel not to refer to the victim jerking off the defendant again.
Defense counsel responded that he should be allowed to play the recording for the
jury, and that the jury should decide what the mother said. The court listened to the
recording again and then concluded that the mother had said, “‘He just jerked them
off real quick”; that the victim had been wearing shorts; and that the jerking off
reference was clearly a reference to clothing. The court instructed counsel not to refer
to the victim jerking off the defendant again. Defense counsel moved for a mistrial,
and the trial court denied the motion. The court revisited and reaffirmed the ruling
later in the trial.
Martinez-Gaspar argues that the statement was admissible as a prior
inconsistent statement that contradicted both the mother’s testimony and the victim’s
testimony. See OCGA § 24-8-801 (d) (1) (A) (“An out-of-court statement shall not
be hearsay if the declarant testifies at the trial or hearing, is subject to
cross-examination concerning the statement, and the statement is admissible as a prior
4 inconsistent statement . . . .”). See also OCGA § 24-6-613 (b) (prior inconsistent
statement). He adds that whether the statement was in fact inconsistent was an issue
for the jury.
First we observe that Martinez-Gaspar has not shown that the statement was
inconsistent with the mother’s testimony, because the mother did not testify in court
about the jerking off comment on the 911 call. See Sinkfield v. State, 318 Ga. 531, 545
(6) (a) (899 SE2d 103) (2024) (“extrinsic evidence of a prior inconsistent statement
by a witness shall not be admissible unless the witness is first afforded an opportunity
to explain or deny the prior inconsistent statement and the opposite party is afforded
an opportunity to interrogate the witness on the prior inconsistent statement or the
interests of justice otherwise require[,]” quoting OCGA § 24-6-613 (b)). Although the
court had instructed counsel not to refer to the victim jerking off the defendant again,
Martinez-Gaspar could have proffered what he believed the mother would have
testified or could have asked to question the mother out of the presence of the jury in
order to show that her in-court testimony would be inconsistent with her statement
on the 911 call. See OCGA § 24-1-103 (b). “The burden is on the party alleging error
to show it affirmatively by the record. This (c)ourt cannot determine the propriety of
5 the trial court’s [rejection of Martinez-Gaspar’s argument that the mother’s in-court
testimony would be inconsistent with her statement on the recorded 911 call ] without
a proffer of the excluded evidence or testimony.” Earwood v. State, 350 Ga. App. 26,
32 (2) (827 SE2d 719) (2019) (citations and punctuation omitted). See also Mohr v.
State, 370 Ga. App. 194, 198 (3) (896 SE2d 8) (2023).
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FIFTH DIVISION MCFADDEN, P. J., HODGES 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. https://www.gaappeals.us/rules
April 17, 2025
In the Court of Appeals of Georgia A25A0667. MARTINEZ-GASPAR v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, Guillermo Martinez-Gaspar was convicted of rape, OCGA §
16-6-1 (a) (1), and furnishing alcohol to a person under 21 years of age. OCGA § 3-3-23
(a) (1). The trial court sentenced him to serve 25 years in prison followed by life on
probation. Martinez-Gaspar appeals the denial of his motion for new trial. He argues
that the trial court erred in refusing to admit into evidence a statement the victim’s
mother made on the call to 911 and a statement included in a police report. But the
statements are hearsay, and the trial court did not abuse his discretion in excluding
them. So we affirm.
1. Trial evidence The trial evidence showed that the victim, who was 18 years old at the time of
the incident, lived with her parents. Martinez-Gaspar lived in the house next door.
When they encountered each other outside, Martinez-Gaspar would offer the victim
beer.
The day of the incident, the victim was at her house with a friend watching
movies. Her parents were not home. She wanted a beer, so she knocked on the
entrance to Martinez-Gaspar’s residence and asked him for a beer. He invited her in.
They each drank a beer, and then Martinez-Gaspar began touching the inside of the
victim’s thigh. She moved his hand, said “no,” and said that she needed to get back
to her friend. He pushed her onto the bed, forcibly pulled down her shorts and
underwear, and penetrated her with his penis. She ran home, told her friend what had
happened, and called her parents. Her mother called 911.
2. 911 call
Martinez-Gaspar argues that the trial court abused his discretion by prohibiting
him from introducing a statement by the victim’s mother in the recording of her call
to 911 and from asking witnesses about it, because it was a prior inconsistent
statement, not hearsay. See OCGA § 24-8-801 (d) (1) (A). We review that ruling for
2 abuse of discretion and find no such abuse. See Thomas v. State, 293 Ga. 829, 833 (4)
(750 SE2d 297) (2013).
In his opening statement, defense counsel told the jury that when the victim’s
mother called 911 to report the crime, the mother stated that “I think she just jerked
him off or something.” That idea came up again when, on cross-examination, defense
counsel asked the victim, “When you told your mom what happened, is it correct to
say that you told her that you had just jerked him off?” The victim responded, “No.”
The idea came up a third time when defense counsel asked the responding law
enforcement officer whether it was correct that the 911 dispatcher had informed the
officer that “a sexual incident had happened and the alleged victim had just jerked off
the defendant[?]” Before the officer answered, the state objected on the ground that
the question depended on hearsay. The court sustained the objection.
At the beginning of the proceedings the next day, before the jury had entered
the courtroom, the state raised the issue of defense counsel’s references to the mother
telling the 911 operator that she thought that the victim had “just jerked him off or
something.” The state asserted that these references misrepresented what the mother
had said on the 911 call. According to the state, the mother actually said, “I think he
3 just jerked them off or something,” referring to the victim’s clothes. The state asked
to play the recording of the 911 call for the court, and defense counsel agreed.
After the recording was twice played for the court, the state asked the court to
instruct defense counsel not to refer to the victim jerking off the defendant again.
Defense counsel responded that he should be allowed to play the recording for the
jury, and that the jury should decide what the mother said. The court listened to the
recording again and then concluded that the mother had said, “‘He just jerked them
off real quick”; that the victim had been wearing shorts; and that the jerking off
reference was clearly a reference to clothing. The court instructed counsel not to refer
to the victim jerking off the defendant again. Defense counsel moved for a mistrial,
and the trial court denied the motion. The court revisited and reaffirmed the ruling
later in the trial.
Martinez-Gaspar argues that the statement was admissible as a prior
inconsistent statement that contradicted both the mother’s testimony and the victim’s
testimony. See OCGA § 24-8-801 (d) (1) (A) (“An out-of-court statement shall not
be hearsay if the declarant testifies at the trial or hearing, is subject to
cross-examination concerning the statement, and the statement is admissible as a prior
4 inconsistent statement . . . .”). See also OCGA § 24-6-613 (b) (prior inconsistent
statement). He adds that whether the statement was in fact inconsistent was an issue
for the jury.
First we observe that Martinez-Gaspar has not shown that the statement was
inconsistent with the mother’s testimony, because the mother did not testify in court
about the jerking off comment on the 911 call. See Sinkfield v. State, 318 Ga. 531, 545
(6) (a) (899 SE2d 103) (2024) (“extrinsic evidence of a prior inconsistent statement
by a witness shall not be admissible unless the witness is first afforded an opportunity
to explain or deny the prior inconsistent statement and the opposite party is afforded
an opportunity to interrogate the witness on the prior inconsistent statement or the
interests of justice otherwise require[,]” quoting OCGA § 24-6-613 (b)). Although the
court had instructed counsel not to refer to the victim jerking off the defendant again,
Martinez-Gaspar could have proffered what he believed the mother would have
testified or could have asked to question the mother out of the presence of the jury in
order to show that her in-court testimony would be inconsistent with her statement
on the 911 call. See OCGA § 24-1-103 (b). “The burden is on the party alleging error
to show it affirmatively by the record. This (c)ourt cannot determine the propriety of
5 the trial court’s [rejection of Martinez-Gaspar’s argument that the mother’s in-court
testimony would be inconsistent with her statement on the recorded 911 call ] without
a proffer of the excluded evidence or testimony.” Earwood v. State, 350 Ga. App. 26,
32 (2) (827 SE2d 719) (2019) (citations and punctuation omitted). See also Mohr v.
State, 370 Ga. App. 194, 198 (3) (896 SE2d 8) (2023).
Whether the statement was inconsistent with the victim’s in-court testimony
was a matter for the trial court to decide. “[T]he trial court . . . has a gatekeeping role
under the 2013 Evidence Code in addressing preliminary questions about what
evidence reaches the jury.” Gallegos-Munoz v. State, 319 Ga. 803, 816 (2) (e) (906
SE2d 711) (2024). One aspect of that role is encompassed in OCGA § 24-1-104 (“Rule
104”), which “closely adheres to its federal counterpart. . . .” Ronald L. Carlson &
Michael Scott Carlson, Carlson on Evidence 37 (8th ed. 2023). See Gallegos-Munoz,
319 Ga. at 816-817 (2) (e). See generally State v. Almanza, 304 Ga. 553, 556 (2) (820
SE2d 1) (2018).
Rule 104 (a) provides, “Preliminary questions concerning . . . the admissibility
of evidence shall be determined by the court . . . . Preliminary questions shall be
resolved by a preponderance of the evidence standard.” “[S]ubsection (a) [of the
6 federal counterpart] governs questions concerning the competency of evidence, i.e.,
evidence which is relevant but may be subject to exclusion by virtue of some principle
of the law of evidence, [such as the hearsay rule], leaving it for the judge to resolve
factual issues in connection with these principles.” United States v. Sliker, 751 F2d
477, 498 (IV) (C) (2d Cir. 1984). See Rowell v. BellSouth Corp., 433 F3d 794, 800 (11th
Cir. 2005) (under Federal Rule of Evidence 104, court would have to determine by a
preponderance of the evidence a fact that could exempt a statement from the hearsay
rule).
Under Rule 104 (a), the trial court had the authority to resolve the preliminary
question of what the mother said on the 911 call, a necessary factual finding to
determine whether the statement was exempt from the hearsay rule. The court found
that the mother said on the call that the victim had reported that Martinez-Gaspar had
jerked off her clothes, not that she had jerked off Martinez-Gaspar, which would have
contradicted her trial testimony. The evidence authorized that finding. So the
mother’s statement on the 911 call was not admissible as a prior inconsistent
statement, and the trial court did not abuse his discretion in excluding this evidence.
See Cruz v. State, 347 Ga. App. 810, 816 (2) (821 SE2d 44) (2018) (under OCGA §
7 24-1-104 (a), trial court did not abuse his discretion in making a determination that the
evidence was insufficient to authenticate a letter that the defendant sought to
introduce as a prior inconsistent statement of the victim). See also Tanker Mgmt. v.
Brunson, 918 F2d 1524, 1526 (A) (11th Cir. 1990) (“A trial judge has considerable
discretion to determine whether a prior statement is inconsistent with a witness’ trial
testimony. We will not disturb such a ruling on appeal absent an abuse of that
discretion.”).
Given our holding, we do not address Martinez-Gaspar’s argument that the trial
court erred by finding that the evidence’s “probative value [was] substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury . . . .” OCGA § 24-4-403.
3. Police report
Martinez-Gaspar argues that the trial court erred by refusing to admit a police
report, because the report falls into exceptions to the hearsay rule. He argues that he
attempted to introduce the report to impeach the victim and to show inconsistencies
in her descriptions of the incident. We hold that Martinez-Gaspar has not
demonstrated harmful error.
8 First, we note that there is no report in our appellate record. Generally, we
“cannot determine the propriety of the trial court’s ruling without a proffer of the
excluded evidence. Because [Martinez-Gaspar] never proffered the excluded police
report[ ] at trial and the police report[ is] not in the appellate record, we presume that
the trial court’s evidentiary ruling was correct.” Elsayed v. Bakayoko, 359 Ga. App.
282, 288 (4) (857 SE2d 270) (2021) (citation and punctuation omitted). See also
Durrence v. State, 307 Ga. App. 817, 821 (2) (706 SE2d 180) (2011) (“This court
cannot determine the propriety of the trial court’s ruling without a proffer of the
excluded evidence or testimony.”) (citation and punctuation omitted).
Further, “[w]e will reverse a conviction for a trial court’s evidentiary error only
if it was harmful.” Sinkfield v. State, 318 Ga. 531, 545 (6) (899 SE2d 103) (2024).
Here, the victim was examined and cross-examined about the inconsistencies in her
statements to police and her trial testimony. So we cannot say that any error in
refusing to admit the police report was harmful, particularly when the police report
is not in the record.
Judgment affirmed. Hodges and Pipkin, JJ., concur.