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.
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
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 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 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 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., 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 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. 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.
In the end, Earwood was arrested, tried, and convicted of aggravated child molestation, aggravated sodomy,
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 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 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 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 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 S.E.2d 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, 305 Ga. 12, 15 (2), 823 S.E.2d 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
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 S.E.2d 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, 305 Ga. at 14-16 (2), 823 S.E.2d 336.
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 law enforcement father. During cross-examination, Earwood's counsel engaged in the following colloquy with M. R.'s friend:
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."
As an initial matter, however, the subject report is not contained in the appellate record.
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 S.E.2d 830
Miller, P. J., and Reese, J., concur.