Patrick Edward Earwood v. State

• Court: Court of Appeals of Georgia
• Decided: April 30, 2019
• Docket: A19A0340
• Status: Published

Opinion

SECOND DIVISION MILLER, P. J., RICKMAN and REESE, 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. http://www.gaappeals.us/rules

April 30, 2019

In the Court of Appeals of Georgia A19A0340. EARWOOD v. THE STATE.

RICKMAN, Judge.

Following a jury trial, Patrick Edward Earwood, a police officer, was convicted

of several felonies based upon his predatory criminal conduct while on duty. He filed

a motion for new trial, which the trial court denied.1 Earwood appeals the judgment

of conviction and the trial court’s subsequent denial of his motion for new trial.

Specifically, he argues that the trial court erred in denying his motion for a mistrial

after a State witness referenced bad character evidence that he contends had been

excluded pursuant to a motion in limine, and further erred in preventing him from

1 The trial court originally denied Earwood’s motion for new trial as time barred; however, this Court reversed the trial court’s dismissal order and upon remand, the trial court denied the motion on its merits. refreshing a witness’s recollection with a report written by a third party. We find no

error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d 560) (1979).

Laster v. State, 340 Ga. App. 96, 97 (796 SE2d 484) (2017).

So construed, the evidence adduced at trial showed that in May 2012, Earwood

was sworn in as a police officer and began working part-time for the Cave Spring

Police Department (the “Department”). The Department was small and was made up

of mostly part-time officers, although it employed three full-time officers. A single

officer was assigned to work any given 12-hour shift, and that officer generally drove

the newer of the two police vehicles owned by the Department. In mid-2013,

Earwood became one of the three full-time officers.

In June 2013, an investigator with the Floyd County Police Department was

given information that a child had alleged inappropriate conduct against an officer

2 within the Department and she began to investigate. During the ensuing investigation,

the investigator discovered several young women who made allegations of

misconduct against Earwood:

(a) B. B., who was between 14 and 15 years old at the time, alleged that during

the summer of 2012, she was in Cave Spring living with a friend after finishing her

ninth grade school year. At approximately 9:00 p.m. one summer evening, B. B. was

in the park getting some water while walking to a nearby friend’s house. Earwood

drove by B. B. in his patrol car before circling back around and inquiring what she

was doing in the park. He then demanded that she give him oral sex and threatened

that he would arrest her mother for neglect if she refused to do so. B. B. complied

with Earwood’s demand as he stood outside of the patrol car.

B. B. also reported that on several occasions, Earwood drove her and her

friends around in his patrol car late at night after curfew, taking them swimming or

allowing them into otherwise closed government buildings to go “ghost hunting.” On

one such occasion, B. B. and her friend, M. R., were walking to M. R.’s boyfriend’s

house when Earwood passed in his patrol car and picked them up. Earwood let the

girls into City Hall to “ghost hunt[ ]” and then allowed them to climb over the fence

into the closed public pool to swim. After encouraging the girls to swim naked, which

3 they declined to do, Earwood shined a flashlight on them as they changed. He then

left the girls, who proceeded to walk to M. R.’s boyfriend’s house. At some point, the

girls got into an argument and B. B. left. While walking home alone, Earwood again

stopped B. B., who asked him to retrieve M. R. from her boyfriend’s house. Earwood

agreed on the condition that B. B. “flash” him.

(b) M. R., who was between 15 and 16 years old at the time, confirmed the

events above and explained that after “ghost hunting” and swimming with B. B.,

Earwood did indeed retrieve her from her boyfriend’s house, telling her that she

“needed to go with him because he’s a cop.” M. R. originally sat in the back of the

patrol car, but Earwood stopped the vehicle and removed his belongings from the

front seat so that M. R. would join him there. While doing so, Earwood asked M. R.

to pull up her shirt, but she refused. He thereafter drove M. R. to numerous isolated

locations, including the cemetery, where he turned off all the lights and told her it

“would be more fun if [she] would be willing to do stuff.” He then took her to a dead-

end road and asked her to “do it on the hood” of the patrol car. After M. R. shook her

head “no,” Earwood began rubbing her upper thigh and attempted to put his hand

down her pants, but she pushed his hand away. He also squeezed her breast and

attempted to put his hand under her shirt, but she again pushed his hand away. Before

4 departing, Earwood asked if she would “lean down and do anything to him.” M. R.

indicated that she would not and seeking a distraction, began calling and texting her

boyfriend.

M. R. eventually told Earwood that she needed to use the restroom, and that her

blood sugar was low and she needed food. He took her to City Hall and before going

inside, M. R. called her father and let him know she was with Earwood; the two men

also spoke. As M. R. finished using the bathroom and began pulling up her pants,

Earwood appeared and told her “you can pull [those] back down.” M. R. nervously

laughed it off, and Earwood took her to a gas station to buy a candy bar before he

again drove them to the dead-end road. M. R. informed Earwood that B. B. was

texting her and eager for her to return, and Earwood responded that she “would [have

been] a whole lot more fun if [she] would have stayed . . . off the phone.” Earwood

eventually returned M. R. to her boyfriend’s house where B. B. was waiting, after

confirming that she would not “tell anybody . . . anything about tonight.”

M. R., B. B., and M. R.’s boyfriend discussed the events that night between the

three of them, but no one reported Earwood’s conduct until June 2013, when M. R.

disclosed it to a friend whose father was also an officer within the Department. It was

5 M. R.’s outcry and the subsequent reporting of that outcry to her friend’s law

enforcement father that prompted the investigation in this case.

(c) A. G. was another of Earwood’s victims. In May 2013, A. G., who was not

from Cave Spring, drove there with a friend. She was under the influence of

prescription drugs and methamphetamine when she and her friend got into an

argument outside of an apartment complex, and her friend drove away and left her

there. Knowing nobody in the city, A. G. began walking up the road when she was

stopped by an off-duty police officer who had witnessed the events. The officer

instructed A. G. to wait for a uniformed officer to arrive, and although she initially

attempted to resist the officer’s request, she ultimately relented.

Earwood arrived in a marked police vehicle and the off-duty officer left. After

obtaining A. G.’s preliminary information, Earwood requested and obtained consent

to search her person, at which time he found narcotics in her pocket. At no point,

however, did Earwood use his radio or formally arrest A. G. Rather, he drove her to

the police station while repeatedly asking, “[W]ell, what are we gong to do about

this?” After what A. G. perceived to be an extensive amount of time, she and

Earwood were still sitting in the police station, alone, while he made small talk and

ignored her repeated inquiries as to whether he was going to arrest her. Finally, A. G.

6 called her mother to ask for money, assuming that Earwood was seeking payment to

let her go.

Ultimately, Earwood demanded oral sex in exchange for releasing A. G. She

agreed, on the condition that he drive her to meet her mother when she was finished.

Earwood drove to a remote dirt rode and stood beside his vehicle as A. G. performed

oral sex on him. He then took A. G. to a store located in a different city, where her

parents had been waiting for several hours in the parking lot. After departing, A. G.

“just sat in the backseat and cried.”

The following day, A. G. was despondent and went to visit a friend, to whom

she proceeded to tearfully relay that a Cave Spring police officer had forced her to

“do something [sexual] she didn’t want to do.” Unbeknownst to A. G., her friend was

engaged as a confidential informant in a reverse sting operation with the Polk County

Drug Task Force, and law enforcement officers were on the property surveilling their

conversation. Those officers reported A. G.’s allegations to the Floyd County Drug

Task Force, where the information was ultimately given to the investigator who was

already probing the allegations of criminal misconduct lodged by B. B. and M. R.

7 In the end, Earwood was arrested, tried, and convicted of aggravated child

molestation, aggravated sodomy,2 child molestation, two counts of cruelty to children

in the second degree, sexual battery, sexual assault against a person in custody, giving

false statements, and violation of oath by a public officer for his conduct involving

the three victims.3 This appeal follows the trial court’s substantive denial of his

motion for new trial.

1. Earwood argues that the trial court erred in denying his motion for mistrial

after a State witness referenced uncharged sexual activity allegedly engaged in by

Earwood in the Department vehicle. We disagree.

Prior to trial, Earwood filed a vague motion in limine to exclude “uncharged

misconduct,” but did not otherwise identify specific acts he sought to exclude. At the

hearing on the motion, the prosecutor noted that she was “not sure what [Earwood

was] referring to,” but noted that the State “[was not] planning on introducing any

2 Earwood was charged with and found guilty of a second count of aggravated sodomy, but that count merged into his aggravated child molestation conviction for sentencing purposes. 3 Earwood was also charged with sexual assault and sexual battery against a fourth victim, but he was acquitted of those charges at trial.

8 uncharged conduct.” The parties then proceeded without invoking a ruling from the

trial court.

During the trial, the investigator readily admitted that she did not conduct a

forensic examination of the Department vehicle used by Earwood until nearly a year

after allegations against him first surfaced, and that she otherwise did not take any

DNA samples from the interior of the vehicle. Earwood’s counsel engaged the

investigator in extensive cross-examination, during which she explained that, among

other things, Earwood’s DNA inside the vehicle would not have corroborated the

victims’ allegations because the sexual conduct they described occurred outside of

the vehicle. Defense counsel nevertheless continued to press the issue by asking

repeated questions about her failure to search the vehicle for physical evidence. The

investigator eventually responded, “There’s other people. Do you want to go there?

There’s other people that had sex with [Earwood] in that car.”

Earwood’s counsel immediately moved for a mistrial and questioned the

investigator outside of the presence of the jury. The investigator stated that she had

received reports from third-parties that Earwood had engaged in consensual sexual

relations with other women in the vehicle, but she did not provide that evidence to the

State because one account came from the aunt of a visiting woman who had “a

9 summertime fling” with Earwood, and another involved a women who steadfastly

denied the affair and told the investigator she would deny it at trial.

Earwood accused the investigator of misconduct and renewed his motion for

a mistrial, which the trial court denied. The trial court did, however, give the

following curative instruction:

The testimony that was elicited at the end of [the investigator’s] testimony . . . [when] she talked about other sexual relations in the car . . . I struck that testimony. I don’t know if you understand what that means. . . That means . . . there’s no evidence of that. There’s no evidence for us to consider. It wouldn’t be relevant to this trial at all. And so you are to totally strike it from your mind. . . . [Y]ou need to be able to understand that if you wrote it in your notes, you strike through it. You forget it. It’s not part of the case. It’s not allowed to be admitted into the case. It’s not something that you are allowed to consider.

The trial court then confirmed by a showing of hands that each of the jurors would

follow that instruction. Earwood renewed his motion for mistrial after the curative

instruction was given.

Earwood now argues that the investigator’s statement impermissibly injected

his character into issue and violated the trial court’s ruling on his motion in limine,

which sought to exclude uncharged misconduct. As set forth above, however, the trial

10 court never ruled on Earwood’s motion in limine and, consequently, there was no

ruling to violate. See Zehner v. State, 241 Ga. App. 345, 345 (2) (525 SE2d 416)

(1999) (“The failure to invoke a ruling on a motion in limine results in a waiver of the

motion.”).

Regardless, even assuming the testimony was improper, the trial court’s refusal

to grant a mistrial after its admission was not reversible error. “[T]he decision to grant

a motion for mistrial lies within the trial court’s sound discretion, and the trial court’s

exercise of that discretion will not be disturbed on appeal unless a mistrial is essential

to preserve the defendant’s right to a fair trial.” (Citation and punctuation omitted.)

Jordan v. State, ___ Ga. ___, ___(2) (823 SE2d 336) (2019).

The investigator here readily admitted that months had passed before she

conducted a forensic examination of the vehicle and that she never searched for DNA

evidence; nevertheless, defense counsel continued to attack her investigation

techniques and challenge her various explanations as to why she did not believe that

physical evidence obtained from the vehicle would substantiate the victims’ claims.

It was only after repeated questioning on the same issue that the investigator

ultimately offered the challenged explanation, and Earwood cannot now be heard to

complain about the answer that he extracted. See Buxton v. State, 253 Ga. 137, 139

11 (3) (317 SE2d 538) (1984) (“Trial counsel may not take chances in propounding

questions which may elicit damaging answers and then demand a mistrial on the basis

of the answer.”); Gorman v. State, 318 Ga. App. 535, 539-540 (3) (734 SE2d 263)

(2012) (same).

Moreover, the trial court gave the jury a prompt and thorough curative

instruction to disregard the statement. “We ordinarily presume that a jury follows

such instructions,” Coleman v. State, 301 Ga. 720, 722 (3) (804 SE2d 24) (2017),

although in this case we need not rely on that presumption because the trial court

confirmed the same through a showing of hands from the jurors. Consequently,

Earwood has failed to show that a mistrial was essential to preserve his right to a fair

trial, and the trial court did not abuse its discretion in denying his motion. See Jordan,

__ Ga. at ___ (2).

2. Earwood next argues that the trial court erred in refusing to allow him to

refresh a witness’s recollection with a report written by a third-party. Again, we

disagree.

During its case-in-chief, the State called as a witness M. R.’s friend to whom

M. R. made her initial outcry. The friend testified that M. R. told her that Earwood

had “touched her inappropriately,” and that she then reported M. R.’s allegation to her

12 law enforcement father. During cross-examination, Earwood’s counsel engaged in the

following colloquy with M. R.’s friend:

Q: Were you present when your dad spoke directly with [M. R.] about these

things?

A: Yes, sir.

Q: Okay. And have you had a chance to see his report on that?

A: No, sir.

Q: Are you aware that what [your father] reported was that [M. R.] said that

[Earwood] never touched her?

A: No.

Q: Would it refresh your memory to look at his report?

A: I guess.

The State objected to counsel’s use of the report. During the ensuing bench

conference, the parties discussed the report, which was allegedly written by the police

chief after receiving a telephone call from the friend’s father, who relayed to him M.

R.’s allegations. The trial court refused to allow Earwood to use the report.

Earwood contends that the report was admissible and that the trial court erred

in disallowing his use of the report to “refresh [the] witness’[s] recollection.”

13 As an initial matter, however, the subject report is not contained in the

appellate record.4 “The burden is on the party alleging error to show it affirmatively

by the record. This [C]ourt cannot determine the propriety of the trial court’s ruling

without a proffer of the excluded evidence or testimony.” (Citation and punctuation

omitted.) Fletcher v. Estes, 268 Ga. App. 596, 597 (1) (602 SE2d 164) (2004); see

also Dent v. Candler Hospital, Inc., 236 Ga. App. 540, 541 (2) (512 SE2d 392)

(1999).

Regardless, when asked about the report, M. R.’s friend testified that she had

not seen the document, nor was she aware of its alleged contents. Further, at no time

did she purport to have a faulty memory or express a need to have it refreshed,

particularly by a document that she could not identify and that was not prepared by

her, for her, or from information provided by her. Under these circumstances, it was

not error for the trial court to preclude Earwood’s counsel from reading from the

document and questioning the witness about its contents. See generally Zilinmon v.

State, 234 Ga. 535, 537 (3) (216 SE2d 830) (1975), overruled on other grounds,

Drinkard v. Walker, 281 Ga. 211, 217 n.38 (636 SE2d 530) (2006) (“When the

4 Although Earwood’s counsel expressed a desire “to have [the report] marked for identification, then entered as an exhibit,” that apparently was not done.

14 document is prepared by a third person not in the presence of a witness, the memory

is not refreshed by such memorandum and such testimony is inadmissible.”); see also

Hall v. State, 272 Ga. App. 204, 206-207 (2) (612 SE2d 44) (2005).5 It follows that

the trial court also did not err in denying Earwood’s motion for new trial on this

ground.

Judgment affirmed. Miller, P. J., and Reese, J., concur.

5 The statute governing the admission of documents used to refresh a witness’s recollection is OCGA § 24-6-612 (a) (“ If a witness uses a writing to refresh his or her memory while testifying, an adverse party shall be entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.”). The cases cited herein were decided under a prior version of that statute, OCGA § 24-9-69, which expressly required that any witness using documentary evidence to refresh his or her recollection “[must] finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” We need not explore what impact, if any, the change in the statutory language has on the existing case law because under no set of circumstances can a witness’s memory be “refreshed” by a document she cannot identify containing a report she cannot verify.