318 Ga. 855 FINAL COPY
S24A0139. SCONYERS v. THE STATE.
ELLINGTON, Justice.
Charles Michael Sconyers appeals his convictions for malice
murder and cruelty to children in the first degree in connection with
the death of Chelsea Finch’s 23-month-old son, Lincoln Davitte,
from blunt-force trauma to his skull.1 The State presented evidence
at trial showing that Sconyers and Finch lived together and that
while Lincoln was at home in the sole care of Sconyers, Lincoln
1 The crimes occurred on May 1, 2019. On November 5, 2020, a Columbia
County grand jury indicted Sconyers for malice murder, two counts of felony murder, and one count each of aggravated assault and cruelty to children in the first degree. After a jury trial that ended on May 13, 2022, Sconyers was found guilty on all counts. On that same day, Sconyers was sentenced to serve life in prison for malice murder and concurrent 20-year prison terms for aggravated assault and cruelty to children. The felony murder counts were vacated by operation of law. The trial court later conducted a resentencing hearing and, on May 25, 2022, entered a new sentence that merged the aggravated assault count into the malice murder conviction but did not change the other sentences. Sconyers filed a timely motion for new trial, which he amended on September 12, 2022. After a hearing on February 27, 2023, the trial court denied the amended motion for new trial on March 20, 2023. Sconyers filed a timely notice of appeal, and the case was docketed in this Court to the term beginning in December 2023 and submitted for a decision on the briefs. sustained a severe head injury that several medical experts testified
was not consistent with a ground-level fall on the patio as described
by Sconyers. Lincoln died later at the hospital. Sconyers contends
that the trial court erred in four ways: repeatedly permitting the
State to introduce evidence of previous injuries to Lincoln without
cautioning the jury that the parties agreed that Sconyers did not
cause those injuries; instructing the jury about “prior difficulties”
between Sconyers and Lincoln without limiting what evidence
qualified as prior difficulties; admitting hearsay statements
allegedly made by Finch; and permitting the prosecution to impeach
Finch improperly. For the reasons explained below, we affirm.
Sconyers had moved in with Lincoln and Finch, as well as her
then-four-year-old daughter, near the end of 2018. On May 1, 2019,
Finch had to work until 6:00 p.m. and asked Sconyers, who was not
working his job as a firefighter and EMT because he had recently
been injured, to pick up Lincoln from daycare while she went to the
grocery store. Surveillance video footage showed Finch at the
grocery store, and other video footage showed Sconyers leaving the
2 daycare with Lincoln at 6:19 p.m. An investigator testified that he
reviewed surveillance video footage from the daycare for the whole
day and did not observe anything that could have contributed to
Lincoln’s injuries. At some point, Sconyers called a friend and co-
worker who was a paramedic and told him about an unconscious
child with breathing problems. The co-worker told Sconyers to
“[h]ang up and call 911.” Sconyers called 911 at 6:36 p.m. and
subsequently called Finch, screaming that she needed “to get home
now” and that something happened to Lincoln. Sconyers said he did
not know what happened. There was no evidence that anyone other
than Sconyers was at the home with Lincoln at that time. Finch
arrived before emergency responders and ran into the bedroom
where Lincoln was lying on the bed unresponsive with a “bulge” on
the right side of the top of his head, and Sconyers was trying to
assess Lincoln as “an EMT should do” and “get his pupils to react.”
When they heard sirens, Finch picked up Lincoln, ran with him, and
begged Sconyers to take him to the ambulance. Sconyers took
Lincoln the rest of the way and was invited to ride in the ambulance
3 to the hospital because Sconyers was an EMT.
The firefighters who first responded to the 911 call testified
that Lincoln was unresponsive and not breathing adequately and
that Sconyers told them Lincoln had a ground-level fall off a ledge
onto concrete and had other bruises on his face and head because he
had a problem with sleepwalking. One of the two paramedics, who
arrived in an ambulance very soon after the firefighters, testified
that Lincoln was “posturing,” which typically happens after a severe
closed-head injury, and that based on her training and expertise the
injury did not appear to be caused by a ground-level fall. The witness
testified that Sconyers told her “two stories” in the back of the
ambulance: first, Lincoln was standing on a porch and fell about two
to three feet off a ledge; and second, he fell on a “wheel chock”; and
Sconyers later told another paramedic that Lincoln slipped on a door
threshold and tripped and fell. The other paramedic also testified
based on her experience that Lincoln’s skull fracture was not
consistent with a fall of two to three feet. Sconyers kept repeating
that it was his “fault” if anything happened to Lincoln.
4 Finch testified that at the hospital, after Lincoln had surgery,
Sconyers told her that after getting home Lincoln wanted to go
outside to play with chalk. Sconyers opened the outside door, went
to the bathroom to take his knee brace off, and told Lincoln to go
outside. Lincoln then “took off running,” and Sconyers heard a loud
thump and a cry and ran to find Lincoln lying out back on the
concrete patio. Finch further testified that no one was at home with
Sconyers and Lincoln at the time, that she did not know of any prior
fracture of Lincoln’s skull, and that she was not aware of anything
prior to the fatal incident that could have resulted in any type of
brain injury to Lincoln.
Both parties presented medical experts who testified about
Lincoln’s injuries. Extensive testimony from the State’s experts
showed that the nature and severity of Lincoln’s fatal brain injury
made it highly unlikely the injury was caused accidentally by a fall
at ground level or from a low height. One of those experts testified
that symptoms of that fatal injury would have appeared
immediately after the impact, and Lincoln could not have continued
5 to move normally after sustaining those injuries. The GBI medical
examiner who performed an autopsy on Lincoln classified Lincoln’s
death as a homicide because her examination and the medical
records indicated that “non-accidental-inflicted trauma” caused the
fatal injury and because the historical account of the incident
provided by Sconyers did not explain Lincoln’s injuries. One of
Sconyers’s medical experts testified that it was reasonably possible
that Lincoln’s fatal injury resulted from an accident, in part because
a prior head injury that caused a subdural hematoma made him
“more prone to get a new one with more serious complications.”
Sconyers testified in his own defense as follows. He was a
sergeant and advanced EMT with the Augusta Fire Department.
The week before Lincoln’s death, Sconyers and his lieutenant went
into a burning home to search for a little boy who was unaccounted
for at the time, and Sconyers fell through the floor, injuring his knee.
For that reason, Sconyers had a knee brace, was on leave, and was
able to pick up Lincoln from daycare on May 1, 2019. When they
arrived home, Sconyers told Lincoln he could play outside with chalk
6 and opened the door for him. Sconyers went to use the bathroom and
adjust his knee brace, and he told Lincoln to go outside. Lincoln
“took off running,” and Sconyers heard a thump and heard Lincoln
“almost scream.” Sconyers strapped his knee brace back on,
“hobbled” outside as fast as he could, and found Lincoln lying
“outside of [the] back patio.” Lincoln turned his head “just a little
bit” and became unresponsive. Sconyers stabilized Lincoln’s neck
and body, took him inside, and immediately called 911.
1. Sconyers contends that the trial court erred by permitting
the State repeatedly to introduce evidence of Lincoln’s previous
injuries without cautioning the jury that the parties agreed that
Sconyers did not cause those injuries.
Prior to the presentation of any evidence to the jury, Sconyers
moved under OCGA § 24-4-404 (b) (“Rule 404 (b)”) to exclude any
testimony that Lincoln “had black eyes on two different occasions”
in the months before his death. Rule 404 (b) requires the exclusion
of “[e]vidence of other crimes, wrongs, or acts” the defendant may
have committed to prove the defendant’s bad character and show he
7 acted “in conformity therewith” in committing the charged offense.
Sconyers argued that Lincoln’s prior black-eye injuries fell under
Rule 404 (b) because they were extrinsic to Lincoln’s death, and that
they had to be excluded under that rule because the State could not
prove that Sconyers caused the injuries. But the prosecutor argued
that Lincoln’s prior injuries did not fall under Rule 404 (b) at all
because they were intrinsic to the crime. See Roberts v. State, 315
Ga. 229, 235 (2) (a) (880 SE2d 501) (2022) (“The limitations and
prohibition on ‘other acts’ evidence set out in [Rule 404 (b)] do not
apply to ‘intrinsic evidence.’” (citation and punctuation omitted)).
Specifically, the prosecutor argued that the State needed to
introduce the prior injuries to explain the circumstances behind
Lincoln’s prior head injuries, because Sconyers’s expected defense
was that Lincoln’s prior head trauma — which caused the presence
of both “old blood and new blood” in Lincoln’s brain, according to a
defense expert — could have contributed to his death.2 The trial
2 One of the State’s medical experts also testified that surgery on Lincoln
revealed “old clot and new clot,” that is, “blood from a prior injury and blood from this injury.” 8 court agreed with the prosecution that the prior injuries were
admissible as intrinsic evidence — not falling under Rule 404 (b) —
because they allowed the State to explain and rebut the testimony
of Sconyers’s expert. See Johnson v. State, 312 Ga. 481, 491 (4) (863
SE2d 137) (2021) (Evidence is intrinsic when it is “necessary to
complete the story of the crime.” (citation and punctuation omitted)).
The trial court also found that the evidence satisfied OCGA § 24-4-
403 (“Rule 403”).
On appeal, Sconyers does not challenge the trial court’s ruling
that the prior injuries were admissible as intrinsic evidence.
Instead, he raises a two-part argument that he did not raise below:
that the trial court allowed testimony about Lincoln’s previous
injuries to be repeatedly introduced3 and did not caution the jury
that the parties agreed that Sconyers did not cause those injuries.
But Sconyers never objected on those bases in the trial court, and he
3 Sconyers described the evidence of Lincoln’s prior injuries as going “far
beyond merely providing a medical explanation for ‘old blood’” and having “function[ed]” as additional evidence of “prior difficulties” between Sconyers and Lincoln “through the State’s associations and inferences created through repetition and questioning.” 9 never requested a limiting instruction that the parties had agreed
Sconyers did not cause Lincoln’s prior injuries. This enumeration
therefore can be reviewed only for plain error. See OCGA §§ 17-8-58
(b); 24-1-103 (a) (1); Henderson v. State, 317 Ga. 66, 78 (4) (c) (891
SE2d 884) (2023) (The appellant “did not ask for a limiting
instruction at trial, so we review his claim [that allowing certain
evidence was error without an accompanying limiting instruction]
only for plain error.”); Payne v. State, 313 Ga. 218, 221 (1) (869 SE2d
395) (2022) (The appellant asserted on appeal that the trial court
erred by admitting testimony about a certain incident because it “did
not qualify as a prior difficulty” under Rule 404 (b), but he “did not
object on the ground” asserted on appeal. “Thus, [he] failed to
preserve [the enumerated] error for ordinary review.”). We see no
plain error.
To show plain error, an appellant must identify an error that
was not affirmatively waived, was obvious beyond reasonable
dispute, affected the outcome of his trial or otherwise affected his
substantial rights, and seriously affected the fairness, integrity, or
10 public reputation of judicial proceedings. See Henderson, 317 Ga. at
78 (4) (c); Payne, 313 Ga. at 222 (1). “For an error to be obvious for
purposes of plain error review, it must be plain under controlling
precedent or in view of the unequivocally clear words of a statute or
rule.” Grier v. State, 313 Ga. 236, 242 (3) (b) (869 SE2d 423) (2022)
(citation and punctuation omitted).
Sconyers’s claim of error relates to testimony from Finch, a
daycare employee, and a Department of Family and Children
Services (“DFCS”) employee addressing Lincoln’s black eyes. Finch
testified that she saw Lincoln with black eyes on two occasions prior
to his death. In February 2019, Lincoln was sleeping, and she and
Sconyers were in the bathroom when they heard something.
Sconyers left and returned “in a couple of seconds” with Lincoln, who
had a big “goose egg” in the middle of his head but was “grinning,”
did not have dilated pupils, continued to act like a “normal” child the
rest of the night, and was not lethargic or fussy. Finch believed
Lincoln was injured a few times from sleepwalking, and she
discussed the situation with Lincoln’s pediatrician. Finch testified
11 that on April 29, 2019, while Finch’s mother was babysitting
Lincoln, he was climbing on his highchair when his foot slipped and
he hit his eye on it. The defense later called Finch’s mother, who
confirmed that when she was with Lincoln a day or two before his
fatal injury, he injured himself on a highchair, causing a little bruise
on the right side of his face.
An employee at the daycare center that Finch’s children
attended, Brenda Warren, testified that in February 2019 she filled
out an incident report when Lincoln arrived with two black eyes and
a bruised face, and Finch said he was jumping on his bed and hit the
top of it, but she did not take him to the doctor because her
“boyfriend was a paramedic” and he did not feel it was necessary.
Because Finch’s comments “just didn’t seem right,” Warren
ultimately called DFCS. Afterward, Warren noticed that Sconyers
was not picking Lincoln up at the daycare anymore. Warren also
testified to a second incident, on April 29, 2019, two days before
Lincoln’s death, when Lincoln had a black eye and Warren was told
that he had fallen, and a third incident, on May 1, when Lincoln had
12 a cut on his lip. Warren described Lincoln as an “active” and “happy”
child who “napped well,” “ate well,” and played with his friends on
the playground.
The DFCS employee who investigated the two black-eye
incidents testified that the daycare called DFCS because it was
“concerned about the safety of the child” and felt that the incidents
were “too close” in time. As a result, she talked with Finch and
Sconyers and was told that Lincoln’s pediatrician had diagnosed him
as a sleepwalker, and the first injury occurred when Lincoln fell
while sleepwalking, and that the second injury occurred when
Lincoln fell on a highchair at his grandmother’s home.
We see no plain error because Sconyers’s claims related to this
testimony about the circumstances surrounding Lincoln’s prior
injuries do not show that the trial court acted contrary to any
controlling authority. Sconyers contends the trial court should have
instructed the jury that the parties had agreed he did not cause
Lincoln’s prior injuries. But we are aware of no authority requiring
the court to give that limiting instruction. See Salvesen v. State, 317
13 Ga. 314, 317 (2) (893 SE2d 66) (2023) (The State is “not required to
stipulate to . . . the circumstances surrounding the murder.”
(citation and punctuation omitted)); Anderson v. State, 313 Ga. 178,
183 (3) (a) (869 SE2d 401) (2022) (“[A] limiting instruction generally
is not warranted for intrinsic evidence.”). Sconyers also contends
that too many witnesses testified about the prior injuries, but again,
no authority required a limit on the number of those witnesses. The
existence of “some overlap” and “substantial prejudicial effect” in the
testimony of multiple witnesses does not necessarily make that
evidence so needlessly cumulative or unfairly prejudicial as to
require its exclusion under Rule 403. Naples v. State, 308 Ga. 43, 53
(2) (e) (838 SE2d 780) (2020). Accordingly, it was not obvious either
that some of the testimony about Lincoln’s prior injuries should have
been excluded or that the jury should have been instructed that
Sconyers did not cause those injuries. Sconyers therefore has failed
to show error that is clear beyond reasonable dispute.4
4 Sconyers also argues under this enumeration that certain evidence of
his prior difficulties with Lincoln – which we describe below in Division 3,
14 2. Sconyers contends that the trial court erred when it
specifically, Lincoln’s jealousy toward Sconyers, Sconyers hitting Lincoln, and the arguing and fighting between the two – was improperly admitted under Rule 404 (b). As an initial matter, Sconyers’s objection at trial did not extend to this evidence, contrary to his contention on appeal. His specific objection in the trial court was only to testimony that Lincoln “had black eyes on two different occasions several months before the incident,” and Sconyers’s subsequent argument was limited to the black-eye injuries. Thus, this claim also can be reviewed only for plain error. See Payne, 313 Ga. at 221 (1). Sconyers argues that Lincoln’s jealousy was not admissible as “other act” evidence under Rule 404 (b) because it was not an act at all, and also because it was not relevant. But even if evidence of jealousy was not an “act” for purposes of Rule 404 (b), it could be admissible as relevant evidence of the nature of Sconyers’s poor relationship with Lincoln. See Shellman v. State, 318 Ga. 71, 77-78 (3) (b) (897 SE2d 355) (2024) (holding that evidence of the relationship between the defendant and the victim, including jealousy, was relevant because it shed light on the defendant’s motive in committing the charged offenses). Rule 404 (b) is a “rule of inclusion,” State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015), so the fact that evidence may not be admissible under that rule does not mean that the rule excludes the evidence. Sconyers also argues generally that none of his prior difficulties with Lincoln were relevant except in a generic fashion to show motive. But evidence of a defendant’s prior acts is ordinarily admissible in evidence under Rule 404 (b) “when the defendant is accused of a criminal act against that person, where the nature of the relationship between the defendant and the victim sheds light on the defendant’s motive in committing the offense charged.” Lowe v. State, 314 Ga. 788, 793 (2) (a) (879 SE2d 492) (2022) (citation and punctuation omitted). Sconyers additionally contends that the prior-act evidence was not admissible under Rule 404 (b) because there was insufficient evidence to prove that he committed the acts. In his view, all of the evidence that he committed the prior acts was inadmissible hearsay from Finch’s co-workers. But as we explain more fully in Division 3, Sconyers did not object to the co-workers’ testimony. By statute, “if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.” OCGA § 24-8-802. Sconyers has failed to show that it is obvious beyond reasonable dispute that if he had properly objected under Rule 404 (b), the trial court would have abused its discretion in finding that the prior difficulties evidence met the requirements of that rule. Accordingly, admission of the prior difficulties into evidence does not amount to plain error. 15 instructed the jury about “prior difficulties” between Sconyers and
Lincoln. The trial court instructed the jury as follows:
Evidence of prior difficulties between the defendant and the alleged victim, Lincoln Davitte, has been admitted for the sole purpose of illustrating, if it does, the state of feeling between the defendant and the alleged victim. Whether this evidence illustrates such matters is a matter solely for you, the jury, to determine, but you are not to consider such evidence for any other purpose.
Sconyers argues that this instruction failed to provide any limitation
as to what evidence was subject to it, that the instruction improperly
assumed there had been evidence of prior difficulties perpetrated by
Sconyers against Lincoln, and that the instruction did not define
“state of feeling” even though that was the only determination the
instruction left to the jury and would naturally be inferred by the
jury. Although Sconyers objected to this instruction during the
charge conference, he did not object to it on any ground after the jury
was charged. Thus, Sconyers did not properly preserve any of his
claims, and, indeed, he acknowledges that the instruction on prior
difficulties is subject to review for plain error only. See OCGA § 17-
16 8-58 (b); Rawls v. State, 310 Ga. 209, 217-218 (4) (850 SE2d 90)
(2020). We see no plain error.
All of the language in the instruction on prior difficulties that
Sconyers now questions “was and is consistent with Georgia’s
pattern jury instructions, and [Sconyers] has not otherwise shown
that there was plain error.” Taylor v. State, 306 Ga. 277, 286-287 (3)
(c) (830 SE2d 90) (2019).5 Sconyers has pointed to no controlling
precedent holding that a trial court erred in connection with the
pattern charge on prior difficulties. See McKibbins v. State, 293 Ga.
843, 853 (7) (750 SE2d 314) (2013) (seeing no plain error where the
appellant pointed to no decision that failing to define “accomplice”
in the pattern charge on accomplice testimony was error). More
5 See also Dyal v. State, 297 Ga. 184, 188 (5) & n.9 (773 SE2d 249) (2015)
(similar holding with respect to a previous version of the pattern jury instruction on prior difficulties, also setting out the current version that was applicable at the time of Sconyers’s trial); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.34.20 (4th ed. 2007, updated Aug. 2022) (“Evidence of prior difficulties (or lack thereof) between the defendant and (the alleged victim) (a witness) has been admitted for the sole purpose of illustrating, if it does, the state of feeling between the defendant and the (alleged victim) (witness); (the reasonableness of any alleged fears by defendant or alleged victim). Whether this evidence illustrates such matters is a matter solely for you, the jury, to determine, but you are not to consider such evidence for any other purpose.”). 17 specifically, there has been no requirement that the trial court
define “state of feeling.” See id. at 854 (7) (“[A] trial court is not
required to instruct on the meaning of all words used in the charge,
particularly words of common understanding.” (citation and
punctuation omitted)). Sconyers has cited no authority that the
instruction at issue improperly recognizes that some evidence of
prior difficulties had been admitted. And there is no authority
requiring a trial court to specify what evidence qualifies as prior
difficulties. See Chester v. State, 267 Ga. 9, 12 (2) (471 SE2d 836)
(1996) (holding that a trial court is not required to specifically point
out particular evidence to which an instruction applies and that a
trial court should refuse to give jury charges that “are more adjusted
to the exhortation of counsel than to the impartial clarity which
should characterize the instructions of the court” (citation and
punctuation omitted)); see also Collins v. State, 312 Ga. 727, 743 (7)
n.15 (864 SE2d 85) (2021) (same). Because the instruction on prior
difficulties “did not involve a clear departure from a settled legal
rule,” it did not amount to plain error. McKibbins, 293 Ga. at 854
18 (7).
3. Sconyers contends that the trial court erred by admitting
testimony about alleged hearsay statements made by Finch about
Sconyers’s and Lincoln’s arguing, and about Sconyers hitting
Lincoln. Sconyers argues that the State violated the requirement of
OCGA § 24-6-613 (b) (“Rule 613 (b)”) that, before extrinsic evidence
of a prior inconsistent statement can be admitted into evidence, the
witness must be “first afforded an opportunity to explain or deny the
prior inconsistent statement.” However, because Sconyers failed to
object to the testimony at issue on any ground, he acknowledges that
this enumeration can be reviewed for plain error only. See OCGA §
24-1-103 (a) (1); Payne, 313 Ga. at 221 (1).6 We see no error, much
less plain error.
The alleged hearsay statements of Finch about which Sconyers
6 See also Harvey v. State, 300 Ga. 598, 603-604 (4) (a) (797 SE2d 75)
(2017) (Because the appellant did not object to a detective’s testimony about the prior inconsistent statements of two witnesses, the appellant’s assertion that the trial court erred in admitting it could be examined only for plain error.), overruled on other grounds, Nalls v. State, 304 Ga. 168, 177-178 (3) (a), 180 (3) (b) (815 SE2d 38) (2018). 19 complains are found in the testimony of two co-workers of Finch’s.
One of those co-workers, Carey Story, testified that Finch told Story
that she took Lincoln to counseling for “jealousy issues” because he
and Sconyers were “arguing a lot” and Lincoln “was telling [Finch]
that [Sconyers] hits him.” According to Story, Finch attributed
Lincoln’s injuries to sleepwalking. Another co-worker of Finch’s,
Sera Druelle, testified that Finch showed Druelle a photo where one
of Lincoln’s eyes was swollen shut and attributed the injury to the
sleepwalking. According to Druelle, Finch had never said anything
about Lincoln having behavioral issues until, about a week or a week
and a half before the fatal incident, Finch said that she thought
Sconyers’s “true colors [were] starting to come out”; that when he
was trying to pick up Lincoln at the mall, Lincoln “got upset and
started pointing at [Sconyers], and Lincoln started hitting his own
face,” and Finch “turned around and said [to Sconyers] did you hit
him?”; and that Lincoln “would have behavioral issues around
20 [Sconyers].”7
Finch testified at trial that she took Lincoln to counseling,
which his doctor recommended in December 2018, because he had
developed “jealousy issues” with Sconyers. Finch also testified that
she and Sconyers were engaged at the time of trial and that she did
not believe that he injured Lincoln in any way. She denied that she
remembered ever discussing with any of her co-workers that
Sconyers and Lincoln had been fighting. Finch also denied that there
was ever an incident at a mall when Lincoln indicated Sconyers had
hit him and that she ever asked Sconyers if he had hit Lincoln
because she and Sconyers were “always together.” Finch further
denied that she ever had any apprehensions about her relationship
with Sconyers or that Sconyers had a temper or argued with Lincoln.
Instead, Finch testified, Sconyers and Lincoln “just played like
father and son.” Finch subsequently denied ever discussing with her
co-workers the nature of her relationship with Sconyers. On cross-
7 The DFCS employee also testified about a private interview with Lincoln’s sister, who said that Sconyers would spank Lincoln because he was crying. 21 examination, Finch also denied ever telling anyone she worked with
that Sconyers “abuses Lincoln or anything like that”; she asserted
that she “wasn’t close with anybody in the office” and that she “really
kept [her] personal stuff to [her]self.”
“[P]rior inconsistent statements that meet the requirements of
[Rule 613 (b)] are not hearsay if the declarant testifies at trial and
is subject to cross-examination. See OCGA § 24-8-801 (d) (1) (A).”
Neloms v. State, 313 Ga. 781, 787 (4) (a) (873 SE2d 125) (2022). “The
failure of a witness to remember making a statement, like the
witness’s flat denial of the statement, may provide the foundation
for calling another witness to prove that the statement was made.”
Id. (citation and punctuation omitted).
Here, Finch’s denials and alleged lack of memory of her prior
statements and their contents were a sufficient foundation to allow
other witnesses to testify about the content of those statements, that
is, the arguing and the hitting. See Neloms, 313 Ga. at 788 (4) (b);
Bridgewater v. State, 309 Ga. 882, 886-887 (2) (848 SE2d 865) (2020)
(One witness’s “unambiguous denial that he had ever spoken with
22 [a second witness] — as well as his assertion that he did not recall
ever speaking with him — obviated the need for the prosecutor to
ask [the first witness] about specific statements he made to [the
second witness] and provided sufficient foundation for the State to
present extrinsic evidence of such statements.”); Murdock v. State,
299 Ga. 177, 179-180 (4) (787 SE2d 184) (2016) (A witness’s prior
inconsistent statement about a shooting was properly admitted
under Rule 613 (b) after she testified that “she could not recall the
details of the shooting itself or the content of her statement.”).
Sconyers complains of the State’s failure to confront Finch with
the specific extrinsic evidence of her alleged prior inconsistent
statements. But as Bridgewater and Murdock indicate, Finch’s
failure to recall making any statement at all about fighting, abuse,
or anything like that, as well as her denial of the mall incident and
Sconyers arguing with Lincoln, relieved the prosecutor of the need
to ask about specific statements. Moreover, at the prosecutor’s
request, the trial court directed Finch to remain subject to recall and
the rule of sequestration. See Wammock v. Celotex Corp., 793 F2d
23 1518, 1522-1523 (II) (11th Cir. 1986) (“[I]f the witness is or might be
available for recall and the opposing party simply fails to recall him,
there has been a sufficient opportunity to explain such that the
extrinsic evidence should be admitted under Rule 613 (b). Therefore,
one key to the admissibility of the extrinsic evidence of the prior
inconsistent statement is the availability of the witness for recall.”
(emphasis omitted)); Hood v. State, 299 Ga. 95, 98-99 (2) (786 SE2d
648) (2016) (“On the issue of admitting extrinsic evidence of a
witness’s prior inconsistent statement, OCGA § 24-6-613 (b)
substantially adopted the language of Federal Rule of Evidence 613
(b) as it read in 2011; to the extent the new Georgia evidence rules
borrow from the text of the federal evidence rules in this way, we
look for guidance to the decisions of federal appellate courts,
particularly the Eleventh Circuit, interpreting the federal rules.”).
4. Sconyers contends that the trial court erred by permitting
the prosecution to impeach Finch with alleged bias through the
testimony of Leslie Morgan, who was the guardian ad litem
appointed in Finch’s case in juvenile court involving her daughter’s
24 custody and visitation. We see no error.
During her direct examination, Finch testified that her
daughter had not been in her custody since Lincoln’s death and that
she was not offered any opportunity to be able to see her daughter
on a more regular basis, nor any type of visitation by the juvenile
court. Morgan later testified that Finch was offered the opportunity
to have a visitation plan with her daughter, but that it was not ever
accomplished. Morgan explained that she was part of a conference
call with the juvenile court judge and two others, during which an
agreement was reached that the child’s therapist would help
facilitate a supervised visit on the condition that Finch would sign
an affidavit that she is no longer seeing or dating Sconyers, but
Finch never executed the affidavit. On cross-examination, Morgan
agreed that neither Finch nor her attorney was on the conference
call, but she named someone from the office of Finch’s attorney as
being on the call. Although Finch was aware that there was going to
be a conference call addressing visitation, Morgan was not sure what
Finch’s attorney told her after the call.
25 Sconyers objects to Morgan’s testimony on two bases. First, he
contends that her testimony was not based on personal knowledge
and therefore was not admissible under OCGA § 24-6-602 (“Rule
602”). Second, he contends that her testimony did not establish a
specific instance of Finch’s conduct showing that she was biased in
favor of Sconyers, and therefore was not admissible to show her
character for untruthfulness under OCGA § 24-6-608 (b) (“Rule 608
(b)”). Because Sconyers raised only the Rule 608 (b) objection at trial,
we review his Rule 602 argument only for plain error. See OCGA §
24-1-103 (a) (1); Henderson, 317 Ga. at 78 (4) (c).8 We address the
arguments in turn.
(a) Rule 602 generally prohibits a witness from testifying “to a
matter unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of such matter. Evidence
to prove personal knowledge may, but need not, consist of the
8 See also Brown v. State, 314 Ga. 193, 199 (3) (875 SE2d 784) (2022)
(Because the appellant did not object to certain testimony on the ground that the witnesses lacked personal knowledge so as to preserve ordinary appellate review on that issue, it could be reviewed only for plain error.). 26 witness’s own testimony.” Under that rule, as under the
corresponding federal rule, “witnesses may testify about events they
personally observed.” Draughn v. State, 311 Ga. 378, 385 (4) (858
SE2d 8) (2021). But “a court should exclude testimony for lack of
personal knowledge if the witness could not have actually perceived
or observed that which he testifies to.” Kirby v. State, 304 Ga. 472,
478 (3) (b) (819 SE2d 468) (2018) (citation and punctuation omitted).
Morgan’s testimony made clear the limit of her personal
knowledge, i.e., that her knowledge of Finch’s unfulfilled
opportunity for a visitation plan with her daughter was based
entirely on a conference call in which someone from the office of
Finch’s attorney participated. Morgan did not state an opinion or
inference about Finch’s knowledge or actions. To the contrary,
Morgan’s testimony was “not impermissible opinion testimony” but
was “straightforward factual testimony regarding matters within
[her] personal knowledge,” Cooper v. State, 317 Ga. 676, 685 (2) (895
SE2d 285) (2023), only about what she “actually perceived,” Kirby,
304 Ga. at 478 (3) (b). Thus, we see no violation of Rule 602, much
27 less a violation that is obvious beyond reasonable dispute.
(b) Rule 608 (b) generally prohibits proof by extrinsic evidence
of “[s]pecific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness,”
except for a conviction of a crime as provided in OCGA § 24-6-609 or
“conduct indicative of the witness’s bias toward a party.” Sconyers’s
argument about what Morgan’s testimony proved goes to its
relevance to meet the exception in Rule 608 (b) for “conduct
indicative of the witness’s bias toward a party.” The value of
Morgan’s testimony lay in its tendency both to disprove Finch’s
testimony denying any offer or opportunity for visitation and to
prove bias on her part in favor of Sconyers. See OCGA § 24-4-401
(“Rule 401”) (defining “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence”). Morgan’s testimony — that Finch
knew about the conference call and her attorney had a
representative on the call — permitted the natural, reasonable
28 inference that Morgan accurately reported the substance of the
conference call in which she participated in her official role as
guardian ad litem, that Finch’s attorney performed her duty to
ascertain what happened on the call and inform Finch of the
visitation offer, and that Finch therefore was offered and declined a
visitation plan if she stopped seeing Sconyers. In other words,
Morgan’s testimony established that — contrary to Finch’s own
testimony — Finch was offered a visitation plan with her older
daughter, but declined to go along with that plan because it required
her to stop seeing Sconyers. See Fitts v. State, 312 Ga. 134, 142 (3)
(859 SE2d 79) (2021) (“When considering circumstantial evidence,
jurors are entitled to draw reasonable inferences based on their own
common-sense understanding of the world that are ordinarily drawn
by ordinary people in the light of their experience in everyday life.”
(citation and punctuation omitted)).
In its ruling, the trial court properly relied on OCGA § 24-6-
621 (“Rule 621”), which provides that “[a] witness may be impeached
by disproving the facts testified to by the witness.” It is true that
29 this statute does not authorize the use of “extrinsic evidence to
impeach a witness by contradiction” on a matter that is “wholly
immaterial” or “purely collateral” to the material issues at trial.
Scott v. State, 309 Ga. 764, 770-771 (3) (c) (848 SE2d 448) (2020).9
But the nature and depth of Finch’s relationship with Sconyers was
relevant to the jury’s assessment of the material issue of her
potential bias. See McNabb v. State, 313 Ga. 701, 715 (2) (b) (i) (872
SE2d 251) (2022) (“[T]he nature of the relationships between the
witnesses and defendants was relevant, as the jury’s understanding
of a familial relationship between a defendant and a witness could
affect the jury’s assessment of the witness’s credibility or potential
bias and provide context for the witness’s testimony.”).10
Consequently, it was within the trial court’s discretion to admit
9 Scott properly relied on case law under former OCGA § 24-9-82, in
addition to current Rule 621, because that current rule was carried over from the old Evidence Code and has no federal corollary. 10 See also OCGA § 24-6-622 (“Rule 622”) (“The state of a witness’s
feelings towards the parties and the witness’s relationship to the parties may always be proved for the consideration of the jury.”); Virger v. State, 305 Ga. 281, 295 (7) (c) (824 SE2d 346) (2019) (holding under Rule 622 that evidence of a prior statement by a girlfriend of the defendant to a detective was admissible to show that her testimony, which was beneficial to the defendant, may have been motivated by bias in his favor). 30 Morgan’s testimony “as a relevant contradictory statement.” See
Corley v. State, 308 Ga. 321, 325 (3) (840 SE2d 391) (2020) (“[I]t is
within a trial court’s discretion to determine if a party is improperly
attempting to use extrinsic evidence to impeach a witness by
contradiction under [Rule 621] on a matter collateral to the relevant
issues at trial.”).
Accordingly, the trial court did not err by allowing the State to
impeach Finch with the extrinsic evidence of Morgan’s testimony
that both contradicted Finch’s testimony about visitation and
showed a bias on the part of Finch in favor of Sconyers.
Judgment affirmed. All the Justices concur.
31 Decided April 30, 2024.
Murder. Columbia Superior Court. Before Judge Padgett.
Garland Samuel & Loeb, Donald F. Samuel, for appellant.
Bobby L. Christine, District Attorney, Kevin R. Majeska,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Clint C. Malcolm, Meghan
H. Hill, Senior Assistant Attorneys General, Matthew B. Crowder,
Assistant Attorney General, for appellee.