McMurray, Presiding Judge.
Defendant was tried before a jury and found guilty of rape, aggravated sodomy, kidnapping with bodily injury, aggravated assault, and simple battery.
At trial, the victim testified that in the early morning hours of December 17, 1988, she was working as a taxi cab driver when defendant approached her for a ride; that she drove to several sites in compliance with defendant’s requests (purportedly to locate a friend) and that defendant then pulled a knife, instructed her to drive to a remote area and forced her to engage in sodomy and intercourse. Defendant testified that he engaged in consensual sex with the victim pursuant to her solicitation; that he ejaculated during copulation over the victim’s objection; that he gave the victim $20 after the encounter and that the victim then gave him a card with her name and number for future reference.
This appeal followed the denial of defendant’s motion for new trial. Held:
1. In his first four enumerations of error, defendant contends the trial court erred in applying the Rape Shield Statute, OCGA § 24-2-3, to preclude him from testifying as to certain statements the victim uttered shortly before the incident which forms the basis of the crimes charged.
Prior to trial, the trial court held an in camera hearing pursuant to OCGA § 24-2-3 where defense counsel stated that he intended to [735]*735produce testimony that the victim engaged in prostitution before the alleged rape. The trial court, noting that defendant had no knowledge of this alleged act of prostitution by the victim, ruled that such evidence was inadmissible under the Rape Shield Statute as amended July 1, 1989, or under the statute as it existed prior to the amendment. The trial court held a second in camera hearing immediately before the trial wherein defendant proposed to testify concerning statements the victim allegedly uttered in his presence concerning her past sexual conduct. Defendant argued that these statements led him to believe that the victim consented to sex. Specifically, defendant sought to introduce that the victim told him that she knew all the black men in the community because of her occupation; that she lived with a number of black men; that her husband left her because she had been involved with these men; that she had three children by black men; that “she had been corresponding with the black guys and that they was abusing her in ways and that she wasn’t getting what she deserved”; that she wasn’t making much money on her job and that she did not want to get pregnant anymore.
Noting that some of the proffered testimony did relate to the victim’s past sexual behavior, the trial court ruled that any statements which the victim uttered concerning her marital history, general reputation of promiscuity, chasteness, or sexual mores contrary to community standards were excluded by the Rape Shield Statute. Specifically, the trial court ruled that the victim’s alleged statement that she did not want to have any more children was inadmissible because it was proof of sexual conduct unrelated to the crimes charged. However, the trial court ruled that the victim’s alleged statement that she did not want to get pregnant was admissible. It appears from a review of the record that the only aspects of defendant’s proffered testimony that he did not subsequently testify to before the jury were that the victim had been involved with black men, that she had children by black men and that her husband had left her.
(a) Relying on Villafranco v. State, 252 Ga. 188 (1) (313 SE2d 469), defendant first argues that the victim’s statements to him are not evidence of past sexual behavior within the purview of the Rape Shield Statute but are evidence of both her state of mind at the time of the alleged rape and her motive to fabricate a rape charge against him because he was another black male who had abused her by virtue of ejaculating inside of her after she asked him not to and by only paying her $20. This contention is without merit.
Although the victim’s statements to defendant about her having had sexual relations with black men and having had children by these men would otherwise be admissible as part of the res gestae, it is well settled that the “Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule.” Veal v. State, [736]*736191 Ga. App. 445, 447 (4) (382 SE2d 131); Johnson v. State, 146 Ga. App. 277, 281 (246 SE2d 363). Defendant’s reliance on Villafranco, 252 Ga. 188, 193 (1), supra, is misplaced because in that case the victim’s statement that she wanted “to get some nookey” did not refer to past sexual conduct but to the victim’s present state of mind. Accordingly, the Rape Shield Statute applies to the proffered testimony.
(b) Next, defendant contends the trial court erred in applying the Rape Shield Statute as amended July 1, 1989, because he committed the alleged offense in December 1988. Defendant argues that the amendment to subsection (b) of the statute violates the ex post facto clause because it deprives him of the substantive right to introduce evidence that was admissible under the prior version of subsection (b).
Prior to July 1, 1989, the Rape Shield Statute excluded evidence of past sexual behavior of the complaining witness unless the court “finds that the past sexual behavior directly involved the participation of the accused or 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. . . .” (Emphasis supplied.) OCGA § 24-2-3 (b). The 1989 amendment substituted the word “and” for “or” such that in order for evidence of past sexual behavior to be introduced under subsection (b), it must directly involve the accused and support an inference that he reasonably believed the complaining witness consented.
Generally, statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. OCGA § 1-3-5. However, where a statute governs only procedure, including the rules of evidence, it is to be given retroactive effect. Polito v. Holland, 258 Ga. 54 (2) (365 SE2d 273). The rule with respect to the ex post facto clause is that any law enacted after the offense was committed which inflicts a greater punishment or alters the situation of the accused is ex post facto. Todd v. State, 228 Ga. 746 (187 SE2d 831). The Georgia Supreme Court addressed a similar issue in Todd wherein the defendant challenged as void for retroactivity a change in the law which allowed evidence of his former crimes committed before the effective date of the statute to be introduced at a sentencing hearing after the effective date of the statute. The court found Todd was not deprived of a substantial right, quoting from Thompson v. Missouri, 171 U. S. 380
Free access — add to your briefcase to read the full text and ask questions with AI
McMurray, Presiding Judge.
Defendant was tried before a jury and found guilty of rape, aggravated sodomy, kidnapping with bodily injury, aggravated assault, and simple battery.
At trial, the victim testified that in the early morning hours of December 17, 1988, she was working as a taxi cab driver when defendant approached her for a ride; that she drove to several sites in compliance with defendant’s requests (purportedly to locate a friend) and that defendant then pulled a knife, instructed her to drive to a remote area and forced her to engage in sodomy and intercourse. Defendant testified that he engaged in consensual sex with the victim pursuant to her solicitation; that he ejaculated during copulation over the victim’s objection; that he gave the victim $20 after the encounter and that the victim then gave him a card with her name and number for future reference.
This appeal followed the denial of defendant’s motion for new trial. Held:
1. In his first four enumerations of error, defendant contends the trial court erred in applying the Rape Shield Statute, OCGA § 24-2-3, to preclude him from testifying as to certain statements the victim uttered shortly before the incident which forms the basis of the crimes charged.
Prior to trial, the trial court held an in camera hearing pursuant to OCGA § 24-2-3 where defense counsel stated that he intended to [735]*735produce testimony that the victim engaged in prostitution before the alleged rape. The trial court, noting that defendant had no knowledge of this alleged act of prostitution by the victim, ruled that such evidence was inadmissible under the Rape Shield Statute as amended July 1, 1989, or under the statute as it existed prior to the amendment. The trial court held a second in camera hearing immediately before the trial wherein defendant proposed to testify concerning statements the victim allegedly uttered in his presence concerning her past sexual conduct. Defendant argued that these statements led him to believe that the victim consented to sex. Specifically, defendant sought to introduce that the victim told him that she knew all the black men in the community because of her occupation; that she lived with a number of black men; that her husband left her because she had been involved with these men; that she had three children by black men; that “she had been corresponding with the black guys and that they was abusing her in ways and that she wasn’t getting what she deserved”; that she wasn’t making much money on her job and that she did not want to get pregnant anymore.
Noting that some of the proffered testimony did relate to the victim’s past sexual behavior, the trial court ruled that any statements which the victim uttered concerning her marital history, general reputation of promiscuity, chasteness, or sexual mores contrary to community standards were excluded by the Rape Shield Statute. Specifically, the trial court ruled that the victim’s alleged statement that she did not want to have any more children was inadmissible because it was proof of sexual conduct unrelated to the crimes charged. However, the trial court ruled that the victim’s alleged statement that she did not want to get pregnant was admissible. It appears from a review of the record that the only aspects of defendant’s proffered testimony that he did not subsequently testify to before the jury were that the victim had been involved with black men, that she had children by black men and that her husband had left her.
(a) Relying on Villafranco v. State, 252 Ga. 188 (1) (313 SE2d 469), defendant first argues that the victim’s statements to him are not evidence of past sexual behavior within the purview of the Rape Shield Statute but are evidence of both her state of mind at the time of the alleged rape and her motive to fabricate a rape charge against him because he was another black male who had abused her by virtue of ejaculating inside of her after she asked him not to and by only paying her $20. This contention is without merit.
Although the victim’s statements to defendant about her having had sexual relations with black men and having had children by these men would otherwise be admissible as part of the res gestae, it is well settled that the “Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule.” Veal v. State, [736]*736191 Ga. App. 445, 447 (4) (382 SE2d 131); Johnson v. State, 146 Ga. App. 277, 281 (246 SE2d 363). Defendant’s reliance on Villafranco, 252 Ga. 188, 193 (1), supra, is misplaced because in that case the victim’s statement that she wanted “to get some nookey” did not refer to past sexual conduct but to the victim’s present state of mind. Accordingly, the Rape Shield Statute applies to the proffered testimony.
(b) Next, defendant contends the trial court erred in applying the Rape Shield Statute as amended July 1, 1989, because he committed the alleged offense in December 1988. Defendant argues that the amendment to subsection (b) of the statute violates the ex post facto clause because it deprives him of the substantive right to introduce evidence that was admissible under the prior version of subsection (b).
Prior to July 1, 1989, the Rape Shield Statute excluded evidence of past sexual behavior of the complaining witness unless the court “finds that the past sexual behavior directly involved the participation of the accused or 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. . . .” (Emphasis supplied.) OCGA § 24-2-3 (b). The 1989 amendment substituted the word “and” for “or” such that in order for evidence of past sexual behavior to be introduced under subsection (b), it must directly involve the accused and support an inference that he reasonably believed the complaining witness consented.
Generally, statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. OCGA § 1-3-5. However, where a statute governs only procedure, including the rules of evidence, it is to be given retroactive effect. Polito v. Holland, 258 Ga. 54 (2) (365 SE2d 273). The rule with respect to the ex post facto clause is that any law enacted after the offense was committed which inflicts a greater punishment or alters the situation of the accused is ex post facto. Todd v. State, 228 Ga. 746 (187 SE2d 831). The Georgia Supreme Court addressed a similar issue in Todd wherein the defendant challenged as void for retroactivity a change in the law which allowed evidence of his former crimes committed before the effective date of the statute to be introduced at a sentencing hearing after the effective date of the statute. The court found Todd was not deprived of a substantial right, quoting from Thompson v. Missouri, 171 U. S. 380, 387 (18 SC 922, 43 LE 204): “We cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced ... at the time the offense was committed.” (Punctuation omitted.) Todd v. State, 228 Ga. 746, 751, supra. Given that the case sub judice involves the converse situation, i.e., [737]*737evidence which may have been admissible at the time of the offense is no longer admissible, it appears defendant was not deprived of a substantial right.
In any event, we agree with the trial court that the amended statute was not ex post facto as to the defendant because the evidence he sought to introduce was not admissible under the prior version of subsection (b). Defendant essentially sought to introduce statements the victim made to him about being with other men and having children with such men as evidence that defendant believed the victim consented to have sex with him. This evidence did not directly involve the defendant nor do we view it as a circumstance which would reasonably support defendant’s purported view that the victim consented to have sex with him. See former OCGA § 24-2-3 (b). In fact, it is against just such reasoning that Rape Shield laws were enacted. See Johnson v. State, 146 Ga. App. 277, 278 (1), 279, supra. We find no merit in this enumeration.
(c) Defendant next argues that the trial court erred in ruling his testimony inadmissible under the amended statute because the testimony is admissible under subsection (c) (2) of the amended statute.1
Subsection (c) of the Rape Shield Statute was amended in 1989 to provide an exception for the admission of evidence of past sexual behavior if the court finds that the evidence “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence. . . .” OCGA § 24-2-3 (c) (2). As noted above, the essence of defendant’s argument appears to be that the victim’s statements to him that she had been with black men before and had children by such men supports the conclusion that he reasonably believed the victim consented to have sex with him. The trial court ruled this interpretation was not a reasonable belief but an inappropriate implication that “if she did it once, she did it again.” See Johnson v. State, 146 Ga. App. 277, 278 (1), 279, supra. We likewise cannot say that this testimony substantially supports the conclusion that defendant reasonably believed the victim consented nor that justice mandates the admission of such testimony. Accordingly, we find this enumeration to be without merit. See Concepcion v. State, 200 Ga. App. 358, 361 (5) (408 SE2d 130).
(d) Defendant next contends the trial court erred in denying his motion for new trial on the ground that OCGA § 24-2-3, as amended in 1989, is unconstitutional. Defendant argues only that if the trial [738]*738court properly excluded his proffered testimony under the amended statute, the amended version of the statute is unconstitutional and violates his right of confrontation and due process rights.
The Georgia Supreme Court has already established the constitutionality of the Rape Shield Statute. Harris v. State, 257 Ga. 666 (1) (362 SE2d 211). See also Rouse v. State, 204 Ga. App. 845, 847 (3) (420 SE2d 779). As noted above, the 1989 amendment: (1) substituted the word “and” for “or” in subsection (b) such that the past sexual behavior must now directly involve the accused and support an inference that he reasonably believed the complaining witness consented and (2) added to subsection (c) another exception for the admission of evidence of the victim’s past sexual behavior. As before, the statute still assists the truth-seeking process by encouraging victims to bring the perpetrators of crimes to justice and still provides protection for the defendant by virtue of the in camera hearing and the inclusion of an additional exception solely for the benefit of the defendant. See Harris v. State, 257 Ga. 666 (1), supra. Defendant has made no argument as to how either change in the statute has rendered it unconstitutional and, in the absence of any such argument, we find this enumeration to be without merit.
2. In his next enumeration of error, defendant contends the trial court erred in denying his motion for new trial based on newly discovered evidence that the victim recanted her accusation that defendant committed the crimes charged.
“ ‘That a material witness for the State, who at the trial gave direct evidence tending strongly to show [the defendant’s] guilt, has since the trial made statements (even) under oath that [her] former testimony was false, is not cause for a new trial. (Cits.)’ Fowler v. State, 187 Ga. 406, 407 (7) (1 SE2d 18) (1939). ‘Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. (Cit.)’ Brown v. State, 60 Ga. 210, 212 (1) (1878).” Williams v. State, 197 Ga. App. 274 (398 SE2d 381). The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for perjury, is where “there can be no doubt of any kind that [the State’s witness’] testimony in every material part is purest fabrication.” Fugitt v. State, 251 Ga. 451, 452 (1), 453 (307 SE2d 471).
In the case sub judice, Jackie Bonds testified at the hearing on defendant’s motion for new trial that the victim informed her two years after defendant’s conviction that she falsely accused defendant of rape because defendant only gave her $20 for engaging in consensual intercourse, defendant ignored her request to avoid ejaculation [739]*739during copulation so as to minimize the possibility of pregnancy and “she had been having problems with black mens.” Bonds testified that she then asked the victim, “ ‘Well, why did you put [defendant] in jail then,’ and [that the victim] responded back and said that she knew he wasn’t from this town.” On cross-examination, Bonds admitted that she is not well acquainted with the victim; that she has visited defendant regularly (over 20 times) since his incarceration and that she and defendant have discussed defendant’s version of the encounter which led to his conviction for rape. The victim testified that defendant raped her in the manner she described at trial and refuted any allegation to the contrary. Specifically, the victim testified that she never recanted her trial testimony; that her relationship with Bonds is antagonistic because of an unrelated domestic matter and that she did not fear pregnancy as a result of ejaculation by defendant during copulation as alleged by Bonds because she was surgically sterile at the time of the rape. This evidence casts great doubt as to whether the victim’s trial testimony was of the “purest fabrication” so as to invoke the exception enunciated in Fugitt v. State, 251 Ga. 451, 452 (1), supra. Further, since there is no proof that the victim has been convicted of perjury so as to invoke OCGA § 17-1-4, the affidavit and testimony of Jackie Bonds goes only to impeach the victim’s trial testimony and therefore does not meet the requirements for granting a new trial based on newly-discovered evidence as set forth in Timberlake v. State, 246 Ga. 488, 490 (1) 491 (271 SE2d 792). Consequently, the trial court did not err in denying defendant’s motion for new trial based on newly-discovered evidence. See Ashley v. State, 263 Ga. 820 (2c) (439 SE2d 914); McKnight v. State, 211 Ga. App. 653 (1) (440 SE2d 249).
3. In his fifth enumeration, defendant contends that because “the bodily injury on which his kidnapping with bodily injury conviction was predicated consisted of the rape of which he was also convicted, these two offenses merged, with the result that the sentence of life imprisonment which he received for kidnapping with bodily injury must be vacated. [It appears that the] state concedes that these two offenses merged under the circumstances. See Allen v. State, 233 Ga. 200, 203 (210 SE2d 680) (1974). It contends, however, that kidnapping with bodily injury constituted the greater of the two offenses and that it is therefore the 20-year sentence imposed on the rape conviction which should be vacated, rather than the mandatory sentence for kidnapping with bodily injury. See OCGA § 16-5-40 (b). We agree. See Brown v. State, 247 Ga. 298 (8) (275 SE2d 52) (1981). [Defendant’s] sentence for rape is accordingly vacated. However, the judgment of the trial court is otherwise affirmed.” Gober v. State, 203 Ga. App. 5, 8 (8) (416 SE2d 292).
4. In his seventh enumeration, defendant contends the trial court [740]*740erred in denying his motion for new trial on the grounds that his trial attorney was ineffective for failing to challenge the constitutionality of OCGA § 24-2-3. The enumeration of error is not supported by argument or citation of authority and is thereby deemed abandoned pursuant to Rule 15 (c) (2) of this court. Snyder v. State, 201 Ga. App. 66, 69 (8a) (410 SE2d 173).
Judgment affirmed in part and vacated in part.
Birdsong, P. J., Andrews, Johnson and Blackburn, JJ., concur. Pope, C. J., Beasley, P. J., and Cooper, J., concur in part and dissent in part. Smith, J., disqualified.