Phillip Andrew Nevelow v. State

Affirmed and Memorandum Opinion filed July 21, 2011. In The Fourteenth Court of Appeals NO. 14-10-00332-CR PHILLIP ANDREW NEVELOW, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1206771 MEMORANDUM OPINION A jury convicted appellant, Phillip Andrew Nevelow, of sexual assault of a child. In two issues, appellant contends the trial court erred by limiting his cross-examination of the complainant and excluding evidence regarding the complainant’s sexual history. We affirm. I. Background In January 2009,[1] appellant was a twenty-two-year-old male residing in Harris County. On January 3, appellant located the complainant’s public profile page on the social-networking website “MySpace.” On her public profile page, the complainant indicated that she lived near appellant and was “18 years old.” However, the complainant’s private page, which revealed her actual age of fourteen years old, could be viewed only by persons she accepted as “friends.” After viewing the complainant’s profile page, appellant sent her a “friend request” via MySpace. After the complainant received the request, she and appellant exchanged several messages; in one message, the complainant provided her cell-phone number. Using their cell phones, they began sending frequent “text messages” to each other. The complainant eventually accepted appellant’s “friend request,” and he was able to view her private MySpace page. According to appellant, he first viewed the complainant’s private page on approximately January 12 or 14. On or around January 6, appellant went to the dance studio at which the complainant was employed and drove her home. The complainant testified that during the drive, appellant inquired regarding her age, she responded fourteen years old, and “[h]e just went along with it.” However, appellant testified that, after seeing the complainant in person, he did not believe she was seventeen years old or older but did not question her because he “wasn’t trying to be rude[.]” According to the complainant, she and the appellant engaged in consensual genital-to-genital sexual intercourse at his apartment twice: (1) first, during the second week they were communicating, possibly on the afternoon of January 9[2]; and (2) second, on January 16, after he retrieved her from school. Contrarily, appellant testified that he never engaged in sexual intercourse with the complainant, she never visited his apartment, and he was in Galveston during the afternoon of January 9. On January 20, the complainant’s mother discovered her relationship with appellant. Shortly thereafter, police began investigating whether appellant engaged in sexual intercourse with the complainant. A detective separately interviewed appellant and the complainant. The complainant also received a sexual-assault examination. No DNA or other direct evidence was discovered indicating appellant engaged in sexual intercourse with the complainant. On January 22, appellant sent a MySpace message to the complainant in which he requested that she retract her false accusations and threatened to take legal action against her. Appellant was charged with sexually assaulting the complainant. At trial, appellant’s principal defense was that he located and befriended the complainant because he was lonely but did not engage in a sexual relationship with her despite her sexual advances. The jury convicted appellant and sentenced him to five years’ confinement, probated. II. Specific Instances of Sexual Conduct In his first and second issues, appellant contends the trial court violated his rights to confrontation, to due process, and to present evidence under rule 412 of the Texas Rules of Evidence by refusing to allow him to present evidence pertaining to, and cross-examine the complainant regarding, her other sexual relationships and boyfriends. A. Preservation of Error We begin by addressing whether appellant preserved his appellate issues. To preserve error, a defendant must make a timely objection and specifically state the legal basis for the objection, unless the basis is apparent from context. See Tex. R. App. P. 33.1(a); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). To make a specific objection, a party must “‘let the trial judge know what he wants, why he thinks himself entitled to it, and . . . do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.’” Shaw v. State, 329 S.W.3d 645, 654 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). The trial court made several rulings pertaining to admission of evidence regarding the complainant’s sexual history. Before trial, the court granted the State’s oral motion in limine under rule 412 relative to “any prior sexual history of the victim.” The issue was re-visited immediately before the complainant testified, when the following exchange occurred: [Defense Counsel:] [W]e’re attempting to present evidence of other sexual relationships that [the complainant] had admitted to both [appellant] and the police officer was aware of. And we’re trying to bring this up because we believe that she is using the charges in this case to hide who it is that she is actually having sexual relationships with. We believe that goes to motive, why she would bring these charges. Therefore, we believe it is relevant. And we believe that under the Hammer case it should be allowed in this case because it is a pure he said/she said case. [Trial Court:] Do you know who she would be trying to hide it from? [Defense Counsel:] I’m saying she’s trying to hide it from the authorities. [Trial Court:] Do you have any - - [Defense Counsel:] Her parents and from the authorities. [Trial Court:] Is there any indication, any evidence, any conversation to that degree that you have? [Defense Counsel:] Well, I don’t have an inside to any of that. What I’m going by is what was said to the police officer. By looking at the police reports, both the mother and the girl in conversations that were brought forth to him that there was an outside relationship. I think the mother comes in and denies it, but I’m saying that there are conversations that were had with the police officer regarding whether there was another relationship. [Trial Court:] Well, I’m trying to figure out who it is that she’s hiding it from? [Defense Counsel:] She’s hiding, I think, the nature of the true relationship from her parents and then from the police. My belief is that this individual is over 18. [Trial Court:] But do you have any basis for that? [Defense Counsel:] I have one picture that I intend to ask her about when she is on the stand, Your Honor. [Trial Court:] But you don’t know right now. [Defense Counsel:] It was a download from her phone. I know that what she said was that she had done that. She admitted it, according to our client, admitted it to him. [Trial Court:] Okay. . . . At this point, my ruling remains the same. That evidence will not be gone into unless and until we have a hearing outside the presence of the jury that offers more guidance than what I have now. All right. The State later objected when appellant asked the complainant during cross-examination whether pictures on her cell phone were of her “other boyfriends.” After the court sustained the objection and instructed the jury to disregard the question, appellant again argued outside the jury’s presence that he should be allowed to question the complainant regarding prior relationships: [Defense Counsel:] Yes, we would request the opportunity to ask whether they had pictures of any other men on her phone. The reason being, she’s made it seem like he was the only one in her life. I think that is relevant to go into the fact that she’s saying this is the only one who she’s been involved with. [Trial Court:] I disagree. If you can show me some relevance, I think the question you asked is, is this another boyfriend, that would have very little relevance under the evidence I’ve heard so far. [Defense Counsel:] I believe it is because of the fact she said he’s the only one that she’s involved with at this time. [Prosecutor:] I’m not sure if she has a separate boyfriend, how that is relevant as to whether he had a sexual relationship with her. [Trial Court:] I don’t see how it would make any material issue more or less likely to have occurred, so I’ll have to deny your request. After the State rested, the trial court warned appellant that during the defense’s case-in-chief, “[t]here will be no mention either directly or indirectly about any alleged other sexual conduct sexual or otherwise that this Complainant may have had with other men or young men.” Appellant testified, but his counsel never approached the bench regarding whether he could ask appellant if the complainant told him about her other sexual relationships. After the jury retired to deliberate, appellant made the following offer of proof: [Defense Counsel:] My intention was to ask questions of [the complainant] of whether she was having sexual relations with anyone else, whether that person was over the age of 18, whether they were ongoing during the time period she’s alleging she was having sexual relations with [appellant]. I intended to ask questions of [appellant] whether he had been informed by her that she was having sexual relations with somebody else, in particular, a lifeguard in the neighborhood, and it was going on during that time period that she was talking with him. I would also want to introduce photos of men that she had on her cellphone, and ask her whether any of these men were the men that she was involved with during that time period. [Trial Court:] And as I understand, your basis for believing this occurred was from your client? [Defense Counsel:] From my client and based on we couldn’t find any direct evidence but we were trying to find out - - [Trial Court:] Okay. [Defense Counsel:] - - that this was what we had been informed. Finally, following his conviction and sentencing, appellant filed a motion for new trial in which he argued the trial court violated his constitutional rights by excluding the aforementioned evidence. In an affidavit attached to the motion, appellant averred that the complainant had told him she had other sexual partners. The primary basis for the trial court’s rulings was that evidence concerning the complainant’s other sexual relationships was not relevant. During trial, appellant never specifically objected that the trial court’s exclusion of the evidence violated his rights under either the Confrontation or Due Process Clauses of the United States Constitution. In a similar situation, the Court of Criminal Appeals held that the defendant did not preserve a Confrontation Clause issue because his “credibility” objection was too vague. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (“Because [defendant] ‘did not clearly articulate’ that the Confrontation Clause demanded admission of the evidence, the trial judge ‘never had the opportunity to rule upon’ this rationale.”). Thus, we hold appellant did not preserve his Confrontation Clause issue. Similarly, appellant did not preserve his due process issue because he did not timely object on that basis. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Hayes v. State, 124 S.W.3d 781, 786–87 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 161 S.W.3d 507 (Tex. Crim. App. 2005); see also Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (recognizing that complaint regarding deprivation of meaningful opportunity to present defense is subject to waiver). We recognize that appellant filed a memorandum of law on the day of trial in which he asserted that the excluded evidence should be admitted pursuant to his right to confrontation. However, we cannot conclude this memorandum preserved appellant’s constitutional complaints because nothing in the record indicates that the memorandum was brought to the trial court’s attention or was otherwise reviewed by the court. Cf. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (explaining motion for new trial must be presented to trial court because “[a] trial court should not be reversed on a matter that was not brought to the trial court’s attention”); Taylor v. State, 863 S.W.2d 737, 737–38 & n.1 (Tex. Crim. App. 1993) (per curiam) (holding arguments raised in memorandum of law sufficiently preserved suppression issues but indicating error may not have been preserved “if the record had not affirmatively shown that the trial court had reviewed the memorandum”). Further, appellant specifically referenced Hammer during an exchange outside the jury’s presence. In Hammer v. State, the Court of Criminal Appeals discussed at length a defendant’s right to present evidence of his accuser’s sexual history pursuant to rule 412 and the Confrontation Clause. 296 S.W.3d 555 (Tex. Crim. App. 2009). Nevertheless, appellant’s reference to Hammer did not preserve his constitutional complainants because nothing in the record indicates that the trial court was familiar with the case. We also acknowledge that appellant’s motion for new trial did not preserve his constitutional issues because an objection must be made at the earliest possible opportunity, not after trial has concluded. See State v. Herndon, 215 S.W.3d 906, 909–10 (Tex. Crim. App. 2007); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). Although we appellant waived his constitutional issues, we conclude it was apparent from the context that appellant argued the pertinent evidence was admissible to prove motive pursuant to rule 412 because (1) the State mentioned rule 412 during its oral motion in limine, (2) the evidence pertained to the complainant’s sexual conduct, and (3) appellant specifically argued this evidence was relevant to the complainant’s motive to lie. Accordingly, we will address the merits of this issue. B. Standard of Review “[E]vidence of a victim’s prior sexual activity may be admissible under Rule 412, the Texas Rape Shield Law, when offered to establish the victim’s motive or bias against the defendant.” Hammer, 296 S.W.3d at 565–66 (citation omitted). We review a trial court’s decision to exclude evidence under an abuse of discretion standard. Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App. 1999). An abuse of discretion occurs when a trial court’s decision is so clearly wrong that it lies outside the zone of reasonable disagreement. Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003). C. Analysis The present case involved a “he said, she said” trial, typical in sexual assault cases, “in which the jury [reached its verdict] based solely upon two diametrically different versions of an event, unaided by any physical, scientific, or other corroborative evidence.” Hammer, 296 S.W.3d at 561–62. Appellant relies heavily upon Hammer, in which the Court of Criminal Appeals recently held that the trial court erred by disallowing motive evidence in a “he said, she said” sexual-assault case. It that case, the trial court did not permit the defendant to present testimony and documentary evidence indicating the following: (1) the complainant was angry with the defendant (her father) because he brought her to a hospital for a sexual-assault examination after she spent the night away from home. (2) the complainant told one witness that a certain male sexually assaulted her during her night out. However, she told another witness she actually had sex with her boyfriend (whom her father did not approve) that night and had lied about having sex with the other male to prevent the defendant from learning she was with her boyfriend. (3) the complainant was so distraught by the defendant taking her to be examined for sexual assault that she threatened suicide and was admitted to a state hospital. She was released from the state hospital shortly before the defendant allegedly assaulted her. Id. at 567. The Court of Criminal Appeals concluded the trial court erred by excluding this evidence because it was “strong support for [the defendant’s] theory that [the complainant] had a motive to falsely accuse him of sexual molestation. It also demonstrates that [the complainant] was not above changing her story of a consensual sexual encounter with her boyfriend into a nonconsensual one with someone else to prevent her father from learning the truth and presumably punishing her for running away and having sex with [her boyfriend.]” Id. at 567.[3] Although the excluded evidence in Hammer strongly supported a possible motive for the complainant to fabricate her accusations, the excluded evidence in this case did not. Evidence that the complainant had other boyfriends or sexual partners, even if they were seventeen years old or older, did not demonstrate a “definite and logical link” between the complainant’s sexual conduct and her alleged motive to fabric. See Todd v. State, 242 S.W.3d 126, 129–30 (Tex. App.—Texarkana 2007); Stephens v. State, 978 S.W.2d 728, 735 (Tex. App.—Austin 1998); see also Wofford v. State, 903 S.W.2d 796, 800 (Tex. App.—Dallas 1995, pet. ref’d) (“We fail to see how complainant’s sexual history made it more likely that she would bring ‘rape’ charges to retaliate for appellant’s refusal to buy more cocaine. The proffered promiscuity testimony had no relation to her bringing ‘rape’ charges.”). If the complainant testified she never told appellant that she had other sexual partners, and appellant testified to the contrary, this inconsistency would not necessarily have inferred a motive to lie. Further, even if we presume appellant would have admitted she was sexually active with men seventeen years old or older, this evidence would not establish an ulterior motive for her accusations. Appellant’s theory that the complainant falsely accused him to protect her other sexual partners was merely speculative. We recognize that this was a “he said, she said” case, in which witness credibility was decisive. In fact, appellant argues that the jury struggled with the complainant’s credibility because its deliberation lasted longer than the actual trial. Nevertheless, appellant’s theory that the complainant lied to protect her other sexual partners was simply too tenuous. “A sexual assault complainant is not a volunteer for an exercise in character assassination.” Hammer, 296 S.W.3d at 564. Moreover, we disagree this evidence was necessary to rebut an inference that the complainant had no other sexual partners. Appellant argues the complainant implied she was not involved in any other sexual relationships at the time he allegedly assaulted her because she testified that her sexual-assault examination made her feel “violated.” However, from the context of this testimony, it appears the complainant felt violated because she was forced to submit to an invasive sexual-assault examination—not because she was sexually inactive. Accordingly, we conclude that the trial court did not abuse its discretion by excluding evidence regarding the complainant’s other boyfriends or sexual partners.[4] Appellant’s first and second issues are overruled. D. Procedure for Admission of Evidence Under Rule 412 As a final matter, we discuss the procedures required under rule 412.[5] Subsection (c) governs the procedure for admission of specific instances of sexual conduct: (c) Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim’s past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury. Tex. R. Evid. 412(c) (emphasis added). Accordingly, after the defendant informs the trial court of his intent to introduce evidence regarding a witness’s sexual conduct, the court is required to conduct an in camera hearing. Here, no such hearing was conducted. The Court of Criminal Appeals has held that abatement is the proper remedy when a trial court’s failure to conduct an in camera hearing prevents the proper presentation of a rule 412 issue to the appellate court. See LaPointe v. State, 225 S.W.3d 513, 520–21 (Tex. Crim. App. 2007) (quoting Tex. R. App. P. 44.4). However, in another case, the court held that a trial court’s failure to conduct a hearing was not material because the record was sufficient to support appellate review of the rule 412 issue. See Young v. State, 547 S.W.2d 23, 25 (Tex. Crim. App. 1977). Although we conclude the trial court erred by failing to conduct an in camera hearing, we determine the record is sufficient for resolution appellant’s rule 412 issue. Specifically, appellant explained to the trial court several times why the excluded evidence was necessary, made an offer of proof, and attached an affidavit to his motion for new trial in which he averred that the complainant had told him she was sexually active with other individuals. Because we firmly understand the basis for appellant’s presentation of the excluded evidence, we dispose of his rule 412 complaint without a record of an in camera hearing. We affirm the trial court’s judgment. /s/ Charles W. Seymore Justice Panel consists of Justices Anderson, Seymore, and McCally. Do Not Publish — Tex. R. App. P. 47.2(b). [1] Unless specified otherwise, all dates mentioned in this opinion pertain to 2009. [2] The complainant initially informed the investigating detective that she and appellant engaged in sexual intercourse on Friday, January 9 and Friday, January 16. At trial, the complainant testified that she did not remember the exact date of their first sexual encounter but agreed she informed the detective it occurred on January 9. [3] The Court of Criminal Appeals also determined the following evidence should not have been excluded because it had the potential to render the complainant’s allegations of sexual assault unbelievable under the doctrine of chances: (1) the complainant “told others that she had been sexually molested by [all of] her mother’s boyfriends,” an improbable accusation; and (2) the complainant called her grandmother and informed her that five men were holding her at knife-point and threatening to rape her but later admitted she fabricated the story. Id. at 569–70. [4] We note appellant was allowed to testify and argue that the complainant manufactured her accusations because he had rebuffed her constant sexual advances. This defensive theory, albeit not particularly strong, involved a dispute between appellant and the complainant and, thus, a potential motive for the complainant to retaliate against appellant. Contrarily, appellant’s theory that the complainant conjured her allegations in order to protect her other sexual partners is speculative because it has no basis other than alleged evidence that she had other sexual partners. In short, the trial court’s decision to exclude evidence of this defensive theory was not so clearly wrong that it lay outside the zone of reasonable disagreement. Gonzalez, 117 S.W.3d at 839. [5] Neither party argues that the trial court failed to adhere to the procedures required under rule 412.