Opinion
NO. 01-20-00145-CR
04-27-2021
SETH ROBERT SAMSEL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court Waller County, Texas
Trial Court Case No. 18-09-16582
MEMORANDUM OPINION
A jury found Seth Robert Samsel guilty of two counts of sexual assault of a child, G.C. See TEX. PENAL CODE § 22.011. The jury assessed Samsel's punishment at 10 years' confinement but probated this sentence by placing him on community supervision for eight years. On appeal, Samsel argues that the trial court abused its discretion by (1) admitting a recording of the complainant's forensic interview over his hearsay objection, and (2) excluding a witness from testifying about the complaining witness's behavior after a relationship ended.
We will refer to the complainant by her initials, G.C., to protect her privacy because she was a minor at the time of the offense. See TEX. R. APP. P. 9.10(a)(3).
We affirm.
Background
A grand jury indicted Samsel on two counts of sexual assault of a child. See TEX. PENAL CODE § 22.011. The indictment alleged that Samsel intentionally and knowingly penetrated the sexual organ of G.C., a child younger than 17, with the defendant's tongue and finger. Samsel pleaded not guilty and the case was tried by a jury.
At trial, G.C. testified about the sexual assault. On the night of July 31, 2017, G.C. was 15 years old, and Samsel was 19 years old. Samsel was a family friend who G.C. had known since she was two. Samsel lived with G.C., her brother, and her grandfather at her grandfather's house.
G.C. testified that she was asleep in bed when she suddenly felt "pressure" in her vagina from Samsel's finger. She testified that she felt "uncomfortable," "vulnerable," and "scared" while Samsel had his fingers inside her vagina. When she woke up, G.C. saw Samsel's face on top of her. She began crying, and Samsel whispered, "Everything is going to be okay. Shh." G.C. felt Samsel's breath moving down her body and then felt him insert his tongue into her vagina. G.C. testified that she felt "uncomfortable," "horrible," and "scared" when Samsel inserted his tongue into her vagina.
G.C. kept crying and shook her head no but said nothing to him. Samsel told G.C. that it was okay for her to touch herself right before he stood up and ejaculated on her hand, stomach, chest, and bed. Samsel went to G.C.'s bathroom, wiped himself off with a green hand towel, threw the towel onto her bedroom floor, and left her bedroom. G.C. vomited on the side of her bed, rushed to the bathroom, and vomited again. She washed her hands, cleaned up the vomit at the side of her bed, and went to sleep. She testified that she had not been sexually active before this incident and that it had been her first sexual experience.
The next day, G.C. noticed she had blood in her urine. G.C. did not immediately notify any adults about the sexual assault because Samsel and her brother were best friends and college roommates, and she did not want to ruin her brother's friendship. G.C. testified that she told E.W., her friend and volleyball teammate, that Samsel was on top of her when she woke up.
G.C. told her cousin, D. Utz, about the incident three months later. She testified that she finally disclosed this information to an adult because she developed anxiety attacks and vomited after every volleyball game. She also became "depressed at home." Utz persuaded G.C. to tell her parents.
In December 2017, G.C. eventually told her mother, D. Cates, about the incident. G.C.'s mother took her to a police station in Waller County, and they met with Detective N. Anderson. After reporting the incident to Detective Anderson, G.C. recounted the sexual assault to S. Bernadac, a forensic interviewer, disclosing more details than she did when she told her mother and Utz.
Several other witnesses testified at trial, including E.W., Cates, Detective Anderson, G.C.'s volleyball coach, and Bernadac. Bernadac testified about the forensic interview, but the State did not offer the video recording of it at that time.
Samsel's defense counsel cross-examined each witness, except Bernadac. The State rested its case. On cross-examination of G.C., defense counsel questioned her about the events of that night. He also questioned G.C. about whether she told others about her sexual activity before the incident. He asked G.C. if she had a crush on Samsel. He also probed her about her parents' divorce and its effect on her.
Later, defense counsel called T.R. to the stand to testify about G.C.'s behavior roughly six months after the incident with Samsel. The State requested a hearing outside the presence of the jury. T.R. testified that he and G.C. were "romantically involved," but it ended badly because G.C.'s dad did not want her to date an African American boy. T.R. further testified that he stopped talking to her in that way but remained "friendly" and "playful." About two or three weeks later, T.R. tried to playfully "cut her off in the hallway" and "tap her," and G.C. told the principals and his football coaches that he was harassing her.
The State objected to T.R.'s testimony as improper impeachment under Rule 608 of the Texas Rules of Evidence. See TEX. R. EVID. 608 (witness's character for truthfulness or untruthfulness). Defense counsel responded that Rule 412(b)(2)(C) permits T.R.'s testimony to show G.C.'s motive based on how she reacts when a crush has rejected her. See TEX. R. EVID. 412(b)(2)(C). The trial court questioned T.R.'s use of the broad term "romantically involved," and defense counsel conceded that his testimony would violate Rule 412(a)'s prohibition against evidence of a victim's past sexual behavior. See TEX. R. EVID. 412(a). The trial court then stated that T.R.'s testimony would be irrelevant if the trial court excluded the undefined term "romantically involved." The State argued that no evidence showed that Samsel had ever rejected G.C., and therefore T.R.'s testimony was irrelevant.
The trial court sustained the State's relevance objection and excluded T.R. from testifying before the jury. The defense rested its case, and the State moved to admit the forensic interview of G.C. The trial court admitted the forensic interview over the defense counsel's hearsay objection.
The jury convicted Samsel of two counts of sexual assault of a child and assessed his punishment at 10 years' confinement but probated this sentence by placing him on community supervision for eight years.
Samsel appealed.
Evidentiary Challenges
In two issues, Samsel challenges two of the trial court's evidentiary rulings.
A. Standard of review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). We may reverse the trial court's decision only if its ruling lies outside the zone of reasonable disagreement. Id. at 83.
B. Admission of forensic interview
In his first issue, Samsel contends that the trial court erred by admitting the forensic interview of G.C. over his hearsay objection. He specifically argues that his defensive theory did not qualify as a "recent" fabrication when the State introduced the forensic interview into evidence. Rather, his defensive theory was that G.C. had fabricated the allegations "from the very start," and the State's introduction of the forensic interview could not meet the recent-fabrication element because it was too late.
In response, the State asserts that G.C.'s forensic interview is admissible because it falls within the hearsay exclusion for prior consistent statements. The State contends that G.C. had made prior statements consistent with her trial testimony to rebut Samsel's theory that G.C. had fabricated her allegations of sexual assault to seek attention after learning of her parents' divorce.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Under the Rules of Evidence, hearsay is not admissible unless a statute or rule provides otherwise. TEX. R. EVID. 802. The prior statement of a witness that tracks her trial testimony, however, is not hearsay if it is offered to rebut an express or implied charge that the witness recently fabricated it or acted from a recent improper motive. TEX. R. EVID. 801(e)(1)(B).
To qualify for admission as a prior consistent statement, there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant's testimony by the opponent. Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007) (citing Tome v. United States, 513 U.S. 150, 156-58 (1995)). "The rule sets forth a minimal foundation requirement of an implied or express charge of fabrication or improper motive." Id. "It is minimal. . . . [E]ven an attack upon the accuracy of the witness's memory might suffice to permit the introduction of a prior consistent statement." Id. (citing 1 Charles T. McCormick, McCormick on Evidence § 47, at 178 n.18 (John W. Strong ed., 4th ed. 1992)). "'[T]here need be only a suggestion that the witness consciously altered his testimony in order to permit the use of earlier statements that are generally consistent with the testimony at trial.'" Id. (quoting United States v. Casoni, 950 F.2d 893, 904 (3d Cir. 1991)). "The fact that 'there need be only a suggestion' of conscious alteration or fabrication gives the trial court substantial discretion to admit prior consistent statements under the rule." Id. at 804-05.
"However, the rule cannot be construed to permit the admission of what would otherwise be hearsay any time a witness's credibility or memory is challenged." Id. at 805. "There is no bright line between a general challenge to memory or credibility and a suggestion of conscious fabrication, but the trial court should determine whether the cross-examiner's questions or the tenor of that questioning would reasonably imply an intent by the witness to fabricate." Id. A trial court makes this determination by considering "the content, tone, and tenor of defense cross-examination. It either does or does not 'open the door' to the admissibility of a prior consistent statement by an express or implied suggestion that the witness is fabricating her testimony in some relevant respect." Id. at 808. "In deciding that question, the trial court must consider the totality of the cross-examination, not isolated portions or selected questions and answers." Id. "Courts may also consider clues from the voir dire, opening statements, and closing arguments." Id.; see also Klein v. State, 273 S.W.3d 297, 315-17 (Tex. Crim. App. 2008) (considering entire record when determining whether trial court abused its discretion in admitting prior consistent statements). Based on the totality of circumstances in the record and "giving deference to the trial judge's assessment of tone, tenor, and demeanor," the reviewing court should ask whether "a reasonable trial judge" could conclude "that the cross-examiner is mounting a charge of recent fabrication or improper motive." Hammons, 239 S.W.3d at 808-09. "If so, the trial judge does not abuse his discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose." Id. at 809.
Here, the record meets the minimal foundational requirement of an implied or express charge of recent fabrication or improper motive based on defense counsel's opening statement, cross-examination of G.C., and closing arguments. The record reflects that Samsel went beyond attacking G.C.'s credibility generally and suggested throughout trial that her parents' divorce and Samsel's rejection of her provided G.C. with a motive to fabricate her testimony. Defense counsel's opening statement argued that G.C. fabricated the allegations for attention:
You are going to hear about a girl whose parents were going through a divorce, that wanted attention. And she got it. You're going to hear things that don't add up. And you're going to hear that when you go this far, you can't turn back.
On cross-examination, defense counsel pressed G.C. about being sexually active before the July 31 incident, even though she testified during direct examination that she had not been sexually active before then.
Counsel: Now then your friend's—or your friend, [M.], her birthday is on May the 25th, correct?
G.C.: I believe so, yes.
Counsel: Now, May 25th, 2017, you went to her birthday party in Galveston, didn't you?
G.C.: Yes, sir.
Counsel: And you were with some other girls?
G.C.: Yes, sir.
Counsel: You were in a vehicle in a car with [Samsel's mom and sister] driving, right?
G.C.: Yes, sir, I believe so.
Counsel: And [M.] was in the car too?
G.C.: Yes, sir.
Counsel: During that ride to Galveston for [M.]'s birthday party, you talked to them about being sexually active, didn't you?
G.C.: No, sir, not that I remember.
Counsel: And afterwards at the party you talked to them about being sexually active, didn't you?
G.C.: No, sir, not that I remember.
Defense counsel also questioned G.C. about having a crush on Samsel, which she denied:
Counsel: When you were sharing with [E.W.] about what happened, you told him [sic] that you had a crush on [Samsel], didn't you?
G.C.: No, sir.
Counsel: You also told her that you were kind of giddy about your relationship with him, didn't you?
G.C.: No, sir.
After defense counsel finished questioning witnesses, the State offered the forensic interview of G.C. providing detailed information about the sexual assault in its rebuttal after the jury had already heard defense counsel's opening statement and line of questioning about the allegations. See Hammons, 239 S.W.3d at 804. Defense counsel's suggestion of recent fabrication or improper motive resurfaced in his closing arguments. For example, defense counsel argued that G.C.'s parents' divorce motivated her to lie:
We know that at the time this was going on, [G.C.]'s parents were going through a divorce. Now, referring back to your common sense is that an easy time for any kid, let alone a teenager? Now, [G.C.] says that wasn't happening. She tried to tell us that that didn't happen until after this. And almost made it sound like [Samsel] was the one who caused the marriage to break up.
Defense counsel then questioned G.C.'s credibility because she testified she slept on a bed that Samsel had ejaculated on without changing the sheets:
But she told you she was so disgusted and had to wipe that ick off of her hands. And what did she do? She went right back to sleep on that bed that hadn't been cleaned up yet. Common sense. If that was [sic] truly traumatic because it really happened as she tells you, she wouldn't
have laid back down in that. Those sheets would have been changed right then and there, not the next day.Defense counsel also questioned how G.C. would have ejaculate all over her midsection, but not on her tank top and cardigan that she was wearing. He referred to G.C.'s demeanor as an "act." At the end of defense counsel's closing argument, he accused G.C. of lying:
So, I ask you, as you sit there individually, you stick to your guns. Did the State bring you evidence sufficient to find [Samsel] guilty in this case when you know that [G.C.] got up there and looked you each in the eye and put on a show and lied to you?
After reviewing the record, we cannot conclude the trial court abused its discretion in admitting the forensic interview to rebut the inference of recent fabrication or improper influence. The State introduced the forensic interview of G.C. as rebuttal evidence after defense counsel theorized that G.C. had fabricated the allegations against Samsel or had a motive to lie. Defense counsel admitted that he believed G.C.'s allegations to be false from the very start of the trial. Hammons, 239 S.W.3d 808 ("That subtly implied charge became vociferously express during appellant's closing argument. At that point, the 'sinister seed of innuendo' sowed during cross-examination came to full fruition."). The purpose of the defensive theory was to make the jury disbelieve G.C.'s account of the July 31 incident, and instead, believe that she lied because she was seeking attention from Samsel during her parents' divorce.
The trial court assessed the totality of defense counsel's questioning, and we defer to the trial court's determination. See Hammons, 239 S.W.3d at 809. We therefore conclude that the forensic interview was admissible as G.C's prior consistent statement. Because the record contains implied and express suggestions of conscious fabrication and meets the minimal foundational requirement for the admission of the forensic interview, we overrule Samsel's first issue. See id. (trial court's admission of prior consistent statements was not an abuse of discretion where totality of the defense counsel's questioning showed an implied and express charge of recent fabrication or improper motive); see also Rodriguez v. State, No. 05-04-00252-CR, 2006 WL 1413095, at *1 (Tex. App.—Dallas May 24, 2006, no pet.) (mem. op., not designated for publication) (affirming trial court's hearsay challenge to video recording because defense counsel's cross-examination of child complainant suggested her testimony was fabricated or the subject of improper influence).
C. Exclusion of fact witness
In his second issue, Samsel contends that the trial court erred by excluding T.R. from testifying at trial based on the State's relevance objection. He specifically argues that T.R.'s testimony was relevant to show that G.C. had a motive to fabricate stories about her crushes when they reject her. In response, the State maintains that T.R.'s proffered testimony would have been prohibited by Rule 412 of the Texas Rules of Evidence, which prohibits the admission of evidence about a victim's previous sexual behavior. It also argues that there was nothing in the record establishing that G.C. had a motive or bias to fabricate stories to get her crushes in trouble when they rejected her. Finally, the State asserts that T.R.'s testimony was irrelevant because no evidence shows that G.C. had a crush or a flirtatious relationship with Samsel.
In general, reputation or opinion evidence of a victim's past sexual behavior or specific instances of a victim's past sexual behavior is not admissible in a prosecution for sexual assault or other sex crimes. See TEX. R. EVID. 412(a). A court may admit evidence of specific instances of a victim's past sexual behavior if it relates to the victim's motive or bias. TEX. R. EVID. 412(b)(2)(C).
T.R. testified that he and G.C. were "romantically involved," but it had ended badly. T.R. did not define or explain what he meant by "romantically involved," and defense counsel conceded that the use of the term was "crossing some [Rule] 412 grounds." The trial court found that the broad, undefined term was problematic because the jury was "left to the imagination which conceivably crosses those lines of [Rule] 412." Indeed, T.R.'s testimony did not establish whether he and G.C. had engaged in sex or sexual behavior. The trial court determined that T.R.'s testimony would be irrelevant if the trial court excluded the T.R's "romantically involved" testimony because the remaining part of his testimony was that G.C. had reported him to school officials for harassment after he played around with her in a friendly manner.
"Only relevant evidence is admissible." Henley, 493 S.W.3d at 83 (citing TEX. R. EVID. 402). "Relevant evidence means 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." TEX. R. EVID. 401; Montgomery v. State, 810 S.W.2d 372, 375 (Tex. Crim. App. 1990) (en banc). To show the relevance of a child victim's prior sexual conduct, "the defendant must establish that the prior acts clearly occurred and that the acts closely resembled" those of this case. See Hale v. State, 140 S.W.3d 381, 396 (Tex. App.—Fort Worth 2004, pet. ref'd).
Samsel did not establish the relevance of the evidence to a material issue to justify admission of G.C.'s sexual behavior under one of the enumerated categories set out in 412(b)(2). See TEX. R. EVID. 401, 412(b)(2); Hale, 140 S.W.3d at 397. T.R.'s testimony would not have been relevant to show that G.C. tended to lie to get her crushes in trouble after they rejected her. The record lacks evidence that Samsel and G.C. had a dating relationship. The record also lacks evidence that Samsel had ever rejected her. Samsel did not show a nexus between T.R.'s relationship with G.C. and the facts of this case. We therefore conclude that the trial court did not abuse its discretion by excluding T.R.'s testimony on relevance grounds. See Hale, 140 S.W.3d at 397.
We overrule Samsel's second issue.
Conclusion
We affirm.
Sarah Beth Landau
Justice Panel consists of Justices Kelly, Landau, and Hightower. Do not publish. TEX. R. APP. P. 47.2(b).