Mason v. The State, Court of Appeals of Georgia (Dec. 15, 1985) — Structured Summary

Factual and Procedural Background

The defendant was convicted of criminal attempt to commit rape. The victim, a 17-year-old high school student who lived with her parents in a residential neighborhood in Athens, Georgia, was returning from a walk one evening when she noticed someone following her. As she approached her yard she testified that the person tackled her from behind, covered her mouth, unbuttoned her pants and attempted to unzip them. She testified that the assailant loosened his grip after she told him she would not struggle; she then bit him and screamed, causing him to flee.

Immediately after the incident, an unfamiliar automobile was found near the victim's house, parked on the wrong side of the street with the engine still warm. That automobile was shown to have belonged to the defendant, although it was gone the next morning. At trial the victim positively identified the defendant as her assailant. After arrest the defendant had jumped bail and remained a fugitive in Oklahoma for three years before being returned for trial.

The defendant admitted parking his car near the victim's home but asserted that at the time of the offense he was in another part of the city in a park and denied seeing or assaulting the victim. At trial the prosecuting attorney, over objection, asked the victim what she thought the defendant's intentions were; she replied "rape." The defendant contended that this was an inadmissible conclusion and that its admission constituted reversible error. The trial court denied the defendant's request to charge on simple battery as a lesser included offense. The Court of Appeals affirmed the conviction; two judges dissented on the admissibility issue.

Legal Issues Presented

1. Whether a victim's testimony stating her belief about the defendant's intent (in response to "what she thought the defendant's intentions were")—specifically the answer "rape"—was an inadmissible conclusion and, if admitted, whether its admission constituted reversible error.
2. Whether the trial court erred in denying the defendant's request for an instruction on simple battery as a lesser included offense when the defendant's defense was that he was not present or involved.

Arguments of the Parties

Appellant's (Defendant's) Arguments

• The victim's answer to what she thought the defendant's intentions were ("rape") was an inadmissible conclusion concerning the defendant's state of mind and should not have been admitted into evidence.
• Admission of that testimony was reversible error because it improperly informed the jury about the defendant's intent.
• The defendant requested a jury charge on simple battery as a lesser included offense; denial of that request was erroneous (implicit in the enumeration, though the defendant's primary claim was the evidentiary ruling).

Appellee's (State's) Position

• The State, as reflected in the trial record and the majority opinion, maintained that the victim's opinion about the assailant's intent was admissible for what it was worth and that any potential prejudice was outweighed by the totality of the evidence.
• The State relied on precedent (as discussed by the majority) to support admission of a witness's opinion where the basis for the opinion is before the jury and for the jury to evaluate its weight.
• Regarding the requested charge on simple battery, the State's position (adopted by the majority) was that when a defendant's theory is complete noninvolvement (he was not present), he is not entitled to a defense based on committing a lesser included offense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bennett v. State, 165 Ga. App. 600 (302 S.E.2d 367) (1983)	Permitting a state's witness to give her opinion of an accused's intent when the basis of the opinion was submitted to the jury for evaluation and weight.	The majority relied on Bennett to hold that the victim's testimony about what she believed her assailant's intentions were was admissible for the jury to weigh.
Johnson v. State, 238 Ga. 59 (230 S.E.2d 869) (1976)	Harmless-error standard assessing whether it is "highly probable" that the error did not contribute to the jury's verdict.	The majority cited Johnson to conclude it was highly probable the contested testimony did not contribute to the verdict; the dissent cited Johnson to argue the opposite — that one cannot say the error did not contribute.
Jones v. State, 172 Ga. App. 347 (323 S.E.2d 174) (1984)	Principle that a defendant claiming noninvolvement is not entitled to a verdict instruction on a lesser included offense predicated on participation.	The majority cited Jones to support denial of the requested charge on simple battery because the defendant's defense was that he was not present or involved.
Tuggle v. State, 149 Ga. App. 844 (256 S.E.2d 104) (1979)	Authority supporting that a defendant who maintains noninvolvement is not entitled to a lesser included offense instruction.	The majority cited Tuggle along with Jones to uphold the trial court's refusal to charge on simple battery.
Bush Hattaway v. McCarty Co., 127 Ga. 308 (56 S.E. 430)	Statement that a witness cannot state his mere conclusion as to what others knew.	The dissent cited this case in support of the proposition that a witness may not testify as to the intent of another person.
Slaughter v. Heath, 127 Ga. 747 (57 S.E. 69)	Authority that a witness cannot state what the desires of others may have been.	Relied upon by the dissent to support exclusion of testimony about another's intent.
Srochi v. Kamensky, 121 Ga. App. 518 (174 S.E.2d 263)	Supports the principle limiting witnesses from testifying as to the opinions of others.	Cited by the dissent as consistent authority that a witness should not testify to another's state of mind.
Mullinax v. Turner, 83 Ga. App. 1 (62 S.E.2d 398)	Authority limiting witness testimony about others' opinions or desires.	Cited by the dissent to reinforce the rule against testifying to another's intent.
Sullivan v. Hughly, 32 Ga. 316	Rule that a witness will not be permitted to prove the opinions of others on any question.	Quoted by the dissent to support exclusion of testimony about another person's intent.
Summer v. Allison, 127 Ga. App. 217 (193 S.E.2d 177)	Discussion distinguishing what a witness may say about his own intent versus the intent of others.	Cited by the dissent to show precedent allowing a witness's own intent testimony but disallowing testimony as to another's intent.
Nichols v. Ward, 27 Ga. App. 501 (108 S.E. 832)	Example cited in Summer v. Allison for a witness testifying about his own intent.	Referenced in the dissent's compilation of authority delineating the limits on testimony about intent.
Alexander v. State, 118 Ga. 26 (44 S.E. 851)	Another authority cited for a witness stating his own intent.	Included by the dissent in illustrating permissible and impermissible intent testimony.
Carey v. Moore, 119 Ga. 92 (45 S.E. 998)	Illustrates that a witness may not testify as to another's intent.	Cited by the dissent as support for excluding testimony about another's state of mind.
Lester v. State, 75 Ga. App. 42 (42 S.E.2d 141)	Authority concerning inadmissible opinion testimony and its potential harmfulness.	The dissent cited Lester to argue that admission of opinion testimony about intent was improper and harmful under the circumstances here.
Jones v. State, 75 Ga. App. 610 (44 S.E.2d 174)	Discusses when an opinion expressed by a witness may be harmless and when it may be harmful.	The dissent relied on this case to argue that the opinion testimony here was harmful because there was not ample evidence to support the inference of intent.
Wilson v. State, 153 Ga. App. 215 (265 S.E.2d 79)	Precedent cited by the dissent relating to limitations on testimony about another's intent.	Listed by the dissent among authorities holding that a witness should not testify about the state of mind of another.
Robinson v. State, 128 Ga. 254 (57 S.E. 315)	Additional authority referenced by the dissent regarding testimony of intent.	Cited by the dissent to support the proposition that testimony about another's intent is improper.
Moore v. State, 151 Ga. 648 (108 S.E. 47)	Statement that it is rare for assault evidence alone to be so overwhelming as to establish intent to commit rape.	The dissent invoked Moore to argue that intent was not manifest from the facts and thus testimony on intent was prejudicial.
Barton v. State, 58 Ga. App. 554 (199 S.E. 357) (1938)	Example that an assailant may have intended only assault and battery rather than a sexual assault.	The dissent cited Barton to illustrate the possibility that the defendant's conduct could have been only an assault and battery, undermining the idea that intent to rape was established.
Willis v. State, 154 Ga. App. 164 (268 S.E.2d 673)	Cited in Bennett, but described in this opinion as not concerning testimony about the intent of another.	The dissent noted Willis's subject matter to distinguish it from intent testimony and to argue Bennett's reliance was misplaced.

Court's Reasoning and Analysis

Majority (Chief Judge Banke):

1. On the admissibility of the victim's statement that the assailant's intention was "rape," the majority relied on Bennett v. State. Bennett had allowed a state's witness to give her opinion of an accused burglar's intent where the basis for the opinion was submitted to the jury for evaluation. Applying that reasoning, the majority concluded the victim's testimony about what she believed her assailant's intentions to have been was admissible "for what it was worth."
2. The majority then assessed whether admission of that testimony required reversal. Citing Johnson v. State and applying its harmless-error standard, the court determined that, given the other evidence presented (victim identification, the defendant's car being found near the scene and his subsequent flight and fugitive status), it was "highly probable" that the contested testimony did not contribute to the jury's verdict.
3. On the requested charge about simple battery as a lesser included offense, the majority reasoned that because the defendant's trial theory was that he was not present and not involved, he could not simultaneously assert a defense that he was present and committed a lesser offense. The court therefore held the trial court did not err in denying the lesser-included instruction, relying on Jones v. State and Tuggle v. State.
4. On that basis the majority affirmed the judgment of conviction.

Dissent (Presiding Judge McMurray, joined by Judge Carley):

1. The dissent disputed Division 1 of the majority, asserting that a witness may not testify to the intent of another person. The dissent compiled a line of authority (including Bush Hattaway, Slaughter, and others) establishing the rule that a witness cannot state what intent another person had and argued the victim's testimony to that effect was inadmissible.
2. The dissent further argued that whether such inadmissible evidence is harmful depends on the circumstances. Citing Jones and Johnson, the dissent concluded the evidence here was not so compelling as to render the opinion harmless; the intent of the assailant was not manifest and could have been only assault and battery (referencing Moore and Barton). Therefore the dissent would find the admission of the victim's testimony concerning intent to be harmful and would reverse the conviction.
3. The dissent also criticized the majority's reliance on Bennett as misplaced because Bennett included a trial court admonition that the jury should not consider the witness's opinion as to the defendant's state of mind; the dissent noted that Willis, cited in Bennett, did not concern intent testimony.

Holding and Implications

Holding:

Judgment affirmed.

Implications:

• The direct effect of the decision is that the defendant's conviction for attempted rape was affirmed by the Court of Appeals: the admission of the victim's statement that she believed the assailant's intent was "rape" was held admissible by the majority and any error was deemed harmless in light of the other evidence.
• The court also upheld the trial court's denial of a requested instruction on simple battery as a lesser included offense because the defendant's asserted defense was noninvolvement; thus a defendant who maintains he was not present cannot simultaneously obtain a lesser-included-offense charge premised on participation.
• The opinion presents a divided view on the admissibility of testimony about another's intent: the majority's acceptance (on the record before the jury) and its harmless-error analysis was not unanimous. The dissent would have found the opinion testimony inadmissible and harmful and would have reversed. The opinion does not announce any broad new rule beyond applying existing authorities to the facts; it does not purport to establish a novel precedent beyond those applications.

Note: This summary reflects only the information and characterizations expressly contained in the provided opinion.