THIRD DIVISION DOYLE, P. J., HODGES and WATKINS, 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
June 25, 2024
In the Court of Appeals of Georgia A24A0602. RICHARDSON v. THE STATE.
WATKINS, Judge.
Van Alan Richardson appeals from the denial of his amended motion for new
trial following his conviction for family violence aggravated assault by strangulation
and family violence battery.1 Richardson argues that the trial court abused its
discretion when it allowed the victim to testify about her injuries over Richardson’s
hearsay objection. Richardson also contends that the court plainly erred in allowing
the State to violate the best evidence rule. For the reasons set forth infra, we disagree
and affirm.
1 See OCGA §§ 16-5-21 (a) (3), (i); 16-5-23.1 (a), (f). The trial court merged the two counts for purposes of sentencing. Viewed in the light most favorable to the verdict,2 the evidence shows that on
September 7, 2020, the victim returned home from work to the home that she shared
with Richardson, her then-husband of 23 years. A verbal altercation ensued, lasting
for hours and at some point turning physical. At one point during the physical
altercation, Richardson bent over the victim, who was sitting on a love seat, and put
his hands around her neck, drug her off the love seat, and applied pressure to her neck
until she could not breathe and lost consciousness.
Around noon on September 8, 2020, law enforcement officers responded to a
“welfare check” at the residence. The officers found the victim upset with extremely
bloodshot eyes. While at the residence, the officers took photographs, which showed
bruises on the victim’s face and arms, swelling of her lips and eyes, and scratches on
her face.
Richardson was charged with two counts of family violence aggravated assault,
one count each of family violence battery and terroristic threats, three counts of theft
by receiving stolen property, and one count of felony possession of a firearm. Prior to
the presentation of evidence in Richardson’s jury trial, the State nol prossed the theft
2 See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). 2 charges. Following a jury trial at which the victim, Richardson, and two police officers
testified, the jury found Richardson guilty of family violence aggravated assault by
strangulation and battery and found him not guilty of the remaining charges.
Following a hearing, the trial court denied Richardson’s amended motion for
new trial. This appeal follows.
1. On appeal, Richardson argues that the trial court abused its discretion in
allowing the victim to testify about her injuries, which implied a doctor’s diagnosis,
and to thus offer inadmissible hearsay.
At trial, the victim testified that she sought medical treatment following the
assault, that she had received discharge papers from the hospital, and that she “had
swollen eardrums[,] a sprained neck[,] fractured ribs[,] and knots on [her] head which
prompted . . . a CT scan.”
Although a lay witness is not competent to give what amounts to a medical
opinion relative to her injuries, “victims are competent to testify as to the injuries they
suffered during an assault, including broken bones.”3 As the trial court found in
denying Richardson’s motion for new trial, the terms used by the victim were not
3 (Citations and punctuation omitted.) Echols v. State, 361 Ga. App. 864, 867 (2) (865 SE2d 839) (2021). 3 “necessarily medical” but were commonly used to describe such injuries. Overall, the
victim’s testimony in this case is accurately described as a description of her injuries.
Additionally, the victim did not explicitly or implicitly refer to any out-of-court
statement,4 and we see no error in the trial court’s decision to overrule Richardson’s
hearsay objection and allow the victim to testify as to the injuries she suffered during
the assault.5
2. Richardson contends that the trial court plainly erred when it allowed the
State to violate the best evidence rule by having the victim describe the contents of an
unproduced photograph.
At trial, the State introduced into evidence photographs that law enforcement
officers had taken of the victim’s injuries. The following exchange took place during
further direct examination of the victim:
4 See OCGA § 24-8-801 (c) (“‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). 5 See Pulliam v. State, 309 Ga. App. 477, 478-479 (1) (711 SE2d 21) (2011) (where the defendant was charged with leaving the scene of an accident which resulted in a serious injury, the trial court did not err in permitting the victim to testify as to his broken ribs); Jones v. State, 294 Ga. App. 564, 567 (2) (669 SE2d 505) (2008) (trial court did not err in allowing the victim to testify that her jaw was broken during the assault). 4 Q The bruising that we saw in the pictures, did any of those bruises get darker? A Yeah. Well, some of them did. [T]here was one that was not photographed that I photographed that was on my chest. That one got a deep purple. But the ones on my arms and the ones on my face, they . . . gave way to some nice greens and yellows more so than the deep, dark blues. But they didn’t necessarily get darker that I recall.
Richardson concedes that, because he did not object at trial, we review only for
plain error.6
Under this four-pronged test, there first must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.7
6 See OCGA § 24-1-103 (a) (1), (d). 7 (Citations and punctuation omitted.) Patch v. State, 337 Ga. App. 233, 242 (2) (786 SE2d 882) (2016). 5 Under the best evidence rule, “[t]o prove the contents of a writing, recording,
or photograph, the original writing, recording, or photograph shall be required.”8 This
rule “requires production of an original document only when the proponent of the
evidence seeks to prove the content of the [photograph]. It does not, however, require
production of a document simply because the document contains facts that are also
testified to by a witness.”9
The best evidence rule is not implicated here because the State was not trying
to prove the contents of the photograph taken by the victim.10 Instead, through her
testimony, the victim provided nondocumentary evidence of the bruising that resulted
from the assault.
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THIRD DIVISION DOYLE, P. J., HODGES and WATKINS, 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
June 25, 2024
In the Court of Appeals of Georgia A24A0602. RICHARDSON v. THE STATE.
WATKINS, Judge.
Van Alan Richardson appeals from the denial of his amended motion for new
trial following his conviction for family violence aggravated assault by strangulation
and family violence battery.1 Richardson argues that the trial court abused its
discretion when it allowed the victim to testify about her injuries over Richardson’s
hearsay objection. Richardson also contends that the court plainly erred in allowing
the State to violate the best evidence rule. For the reasons set forth infra, we disagree
and affirm.
1 See OCGA §§ 16-5-21 (a) (3), (i); 16-5-23.1 (a), (f). The trial court merged the two counts for purposes of sentencing. Viewed in the light most favorable to the verdict,2 the evidence shows that on
September 7, 2020, the victim returned home from work to the home that she shared
with Richardson, her then-husband of 23 years. A verbal altercation ensued, lasting
for hours and at some point turning physical. At one point during the physical
altercation, Richardson bent over the victim, who was sitting on a love seat, and put
his hands around her neck, drug her off the love seat, and applied pressure to her neck
until she could not breathe and lost consciousness.
Around noon on September 8, 2020, law enforcement officers responded to a
“welfare check” at the residence. The officers found the victim upset with extremely
bloodshot eyes. While at the residence, the officers took photographs, which showed
bruises on the victim’s face and arms, swelling of her lips and eyes, and scratches on
her face.
Richardson was charged with two counts of family violence aggravated assault,
one count each of family violence battery and terroristic threats, three counts of theft
by receiving stolen property, and one count of felony possession of a firearm. Prior to
the presentation of evidence in Richardson’s jury trial, the State nol prossed the theft
2 See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). 2 charges. Following a jury trial at which the victim, Richardson, and two police officers
testified, the jury found Richardson guilty of family violence aggravated assault by
strangulation and battery and found him not guilty of the remaining charges.
Following a hearing, the trial court denied Richardson’s amended motion for
new trial. This appeal follows.
1. On appeal, Richardson argues that the trial court abused its discretion in
allowing the victim to testify about her injuries, which implied a doctor’s diagnosis,
and to thus offer inadmissible hearsay.
At trial, the victim testified that she sought medical treatment following the
assault, that she had received discharge papers from the hospital, and that she “had
swollen eardrums[,] a sprained neck[,] fractured ribs[,] and knots on [her] head which
prompted . . . a CT scan.”
Although a lay witness is not competent to give what amounts to a medical
opinion relative to her injuries, “victims are competent to testify as to the injuries they
suffered during an assault, including broken bones.”3 As the trial court found in
denying Richardson’s motion for new trial, the terms used by the victim were not
3 (Citations and punctuation omitted.) Echols v. State, 361 Ga. App. 864, 867 (2) (865 SE2d 839) (2021). 3 “necessarily medical” but were commonly used to describe such injuries. Overall, the
victim’s testimony in this case is accurately described as a description of her injuries.
Additionally, the victim did not explicitly or implicitly refer to any out-of-court
statement,4 and we see no error in the trial court’s decision to overrule Richardson’s
hearsay objection and allow the victim to testify as to the injuries she suffered during
the assault.5
2. Richardson contends that the trial court plainly erred when it allowed the
State to violate the best evidence rule by having the victim describe the contents of an
unproduced photograph.
At trial, the State introduced into evidence photographs that law enforcement
officers had taken of the victim’s injuries. The following exchange took place during
further direct examination of the victim:
4 See OCGA § 24-8-801 (c) (“‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). 5 See Pulliam v. State, 309 Ga. App. 477, 478-479 (1) (711 SE2d 21) (2011) (where the defendant was charged with leaving the scene of an accident which resulted in a serious injury, the trial court did not err in permitting the victim to testify as to his broken ribs); Jones v. State, 294 Ga. App. 564, 567 (2) (669 SE2d 505) (2008) (trial court did not err in allowing the victim to testify that her jaw was broken during the assault). 4 Q The bruising that we saw in the pictures, did any of those bruises get darker? A Yeah. Well, some of them did. [T]here was one that was not photographed that I photographed that was on my chest. That one got a deep purple. But the ones on my arms and the ones on my face, they . . . gave way to some nice greens and yellows more so than the deep, dark blues. But they didn’t necessarily get darker that I recall.
Richardson concedes that, because he did not object at trial, we review only for
plain error.6
Under this four-pronged test, there first must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.7
6 See OCGA § 24-1-103 (a) (1), (d). 7 (Citations and punctuation omitted.) Patch v. State, 337 Ga. App. 233, 242 (2) (786 SE2d 882) (2016). 5 Under the best evidence rule, “[t]o prove the contents of a writing, recording,
or photograph, the original writing, recording, or photograph shall be required.”8 This
rule “requires production of an original document only when the proponent of the
evidence seeks to prove the content of the [photograph]. It does not, however, require
production of a document simply because the document contains facts that are also
testified to by a witness.”9
The best evidence rule is not implicated here because the State was not trying
to prove the contents of the photograph taken by the victim.10 Instead, through her
testimony, the victim provided nondocumentary evidence of the bruising that resulted
from the assault. Thus, there was no error, much less clear or obvious error.
3. Although not set forth in his enumeration of errors,11 Richardson also argues
that the cumulative errors at trial affected his substantial rights. We disagree.
8 OCGA § 24-10-1002. 9 (Citations and punctuation omitted.) Almeda v. State, 348 Ga. App. 576, 578 (1) (a) (824 SE2d 72) (2019). 10 See United States v. Delorme, 964 F3d 678, 683 (8th Cir. 2020) (holding that the best evidence rule was not implicated where a federal agent testified about his interview of the accused and did not play the video recording of the interview because the government was not trying to prove the content of the recording). 11 See Court of Appeals Rule 25 (a) (7). 6 As discussed in Division 1 and 2, Richardson has failed to show that at least two
errors were committed at trial.12 “Georgia courts considering whether a criminal
defendant is entitled to a new trial should consider collectively the prejudicial effect
of trial court errors and any deficient performance by counsel — at least where those
errors by the court and counsel involve evidentiary issues.”13
To establish cumulative error, [Richardson] must show that (1) at least two errors were committed in the course of the trial; and (2) considered together along with the entire record, the multiple errors so infected the jury’s deliberation that they denied [Richardson] a fundamentally fair trial. However, when reviewing a claim of cumulative prejudice, [appellate courts] evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors.14
Because Richardson has failed to show any error, this argument fails.
Judgment affirmed. Doyle, P. J., and Hodges, J., concur.
12 See Wynn v. State, 313 Ga 827, 840 (6) (874 SE2d 42) (2022) (“A cumulative error analysis . . . requires an appellant to show that at least two errors were committed in the course of the trial.”) (citation and punctuation omitted). 13 State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020). 14 (Citations and punctuation omitted.) Flood v. State, 311 Ga. 800, 808-809 (1) (d) (860 SE2d 731) (2021). 7