Court Holds That Witness’ Reference to Other Sex Acts Not Grounds for Mistrial

In Earwood v. State, the defendant was an officer with the Cave Spring Police Department and was charged with the offenses of aggravated child molestation, aggravated sodomy, child molestation, two counts of cruelty to children in the second degree, sexual battery, sexual assault against a person in custody, giving false statements, and violation of oath by a public officer. Following a jury trial, he was convicted on all counts. On appeal, he argued that the trial court erred in not granting a mistrial after a police investigator made a comment at trial regarding other uncharged sexual acts that were allegedly committed by the defendant in his patrol car.

Prior to trial, the defendant filed a motion in limine seeking to exclude any “uncharged misconduct,” but did not expressly set out or otherwise identify the specific acts he was seeking to exclude. At the hearing on the motion, the prosecutor stated that he was not planning to introduce any evidence involving uncharged conduct and the case proceeded to trial without the trial court making a formal ruling on the motion.

During the trial, an investigator with the Floyd County Police Department testified that she had not conducted a forensic examination of the defendant’s patrol vehicle until a year after the allegations were made. She also testified that she did not take any DNA samples from inside the vehicle. On cross examination, she explained that the presence of the defendant’s DNA inside the vehicle would have done nothing to corroborate the alleged victims’ statements because the sexual acts that they described were committed outside the vehicle.

After further questioning from defense counsel regarding her failure to search the patrol car for physical evidence, the investigator stated, “There’s other people. Do you want to go there? There’s other people that had sex with [the defendant] in that car.” The defendant’s attorney immediately made a motion for a mistrial and then a hearing was held outside the presence of the jury. The investigator then testified that she had received information that the defendant had previously engaged in consensual sexual acts with other women inside the vehicle.

The trial court denied the motion for a mistrial but instructed the jury that the court had stricken the investigator’s testimony “about other sexual relations in the car.” The jury was further instructed that this was not to be considered evidence in the case and “if you wrote it in your notes, you strike through it. You forget it. It’s not part of the case. It’s not allowed to be admitted into the case. It’s not something that you are allowed to consider.” The trial court then asked for a showing of hands from the jurors that each of them would follow the court’s instruction.

The Court of Appeals rejected the defendant’s argument that the investigator’s testimony violated the trial court’s ruling on his motion in limine since the court never actually issued a ruling on the motion. The Court also noted that the investigator only made the comment after being cross examined repeatedly by defense counsel for her failure to search the patrol car for DNA. The Court pointed out that the investigator offered various explanations for why she believed that physical evidence inside the vehicle would not be helpful but that the defendant’s attorney continued to press her on the issue. The Court concluded that it was defense counsel’s questioning that elicited this comment and, as a result, the defendant cannot complain about it.

Lastly, the Court held that the jury was given a “prompt and thorough” curative instruction by the trial court to disregard the investigator’s statement. The Court added that while an appellate court will normally presume that a jury follows the instructions given to them, in this case it did not need to since the jurors’ show of hands confirms that they understood the instruction and would follow it.

As a result, the Court of Appeals affirmed the defendant’s convictions on the numerous child molestation and sexual assault-related offenses, holding that he failed to show that a mistrial was essential in order to ensure his right to a fair trial.