CourtListener 10680343

Testo completo

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official text of the opinion.

In the Supreme Court of Georgia

Decided: April 30, 2024

S24A0139. SCONYERS v. THE STATE.

ELLINGTON, Justice.

Charles Michael Sconyers appeals his convictions for malice

murder and cruelty to children in the first degree in connection with

the death of Chelsea Finch’s 23-month-old son, Lincoln Davitte,

from blunt-force trauma to his skull. 1 The State presented evidence

1 The crimes occurred on May 1, 2019. On November 5, 2020, a Columbia

County grand jury indicted Sconyers for malice murder, two counts of felony
murder, and one count each of aggravated assault and cruelty to children in
the first degree. After a jury trial that ended on May 13, 2022, Sconyers was
found guilty on all counts. On that same day, Sconyers was sentenced to serve
life in prison for malice murder and concurrent 20-year prison terms for
aggravated assault and cruelty to children. The felony murder counts were
vacated by operation of law. The trial court later conducted a resentencing
hearing and, on May 25, 2022, entered a new sentence that merged the
aggravated assault count into the malice murder conviction but did not change
the other sentences. Sconyers filed a timely motion for new trial, which he
amended on September 12, 2022. After a hearing on February 27, 2023, the
trial court denied the amended motion for new trial on March 20, 2023.
Sconyers filed a timely notice of appeal, and the case was docketed in this Court
to the term beginning in December 2023 and submitted for a decision on the
briefs.
at trial showing that Sconyers and Finch lived together and that

while Lincoln was at home in the sole care of Sconyers, Lincoln

sustained a severe head injury that several medical experts testified

was not consistent with a ground-level fall on the patio as described

by Sconyers. Lincoln died later at the hospital. Sconyers contends

that the trial court erred in four ways: repeatedly permitting the

State to introduce evidence of previous injuries to Lincoln without

cautioning the jury that the parties agreed that Sconyers did not

cause those injuries; instructing the jury about “prior difficulties”

between Sconyers and Lincoln without limiting what evidence

qualified as prior difficulties; admitting hearsay statements

allegedly made by Finch; and permitting the prosecution to impeach

Finch improperly. For the reasons explained below, we affirm.

Sconyers had moved in with Lincoln and Finch, as well as her

then-four-year-old daughter, near the end of 2018. On May 1, 2019,

Finch had to work until 6:00 p.m. and asked Sconyers, who was not

working his job as a firefighter and EMT because he had recently

been injured, to pick up Lincoln from daycare while she went to the

2
grocery store. Surveillance video footage showed Finch at the

grocery store, and other video footage showed Sconyers leaving the

daycare with Lincoln at 6:19 p.m. An investigator testified that he

reviewed surveillance video footage from the daycare for the whole

day and did not observe anything that could have contributed to

Lincoln’s injuries. At some point, Sconyers called a friend and co-

worker who was a paramedic and told him about an unconscious

child with breathing problems. The co-worker told Sconyers to

“[h]ang up and call 911.” Sconyers called 911 at 6:36 p.m. and

subsequently called Finch, screaming that she needed “to get home

now” and that something happened to Lincoln. Sconyers said he did

not know what happened. There was no evidence that anyone other

than Sconyers was at the home with Lincoln at that time. Finch

arrived before emergency responders and ran into the bedroom

where Lincoln was lying on the bed unresponsive with a “bulge” on

the right side of the top of his head, and Sconyers was trying to

assess Lincoln as “an EMT should do” and “get his pupils to react.”

When they heard sirens, Finch picked up Lincoln, ran with him, and

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begged Sconyers to take him to the ambulance. Sconyers took

Lincoln the rest of the way and was invited to ride in the ambulance

to the hospital because Sconyers was an EMT.

The firefighters who first responded to the 911 call testified

that Lincoln was unresponsive and not breathing adequately and

that Sconyers told them Lincoln had a ground-level fall off a ledge

onto concrete and had other bruises on his face and head because he

had a problem with sleepwalking. One of the two paramedics, who

arrived in an ambulance very soon after the firefighters, testified

that Lincoln was “posturing,” which typically happens after a severe

closed-head injury, and that based on her training and expertise the

injury did not appear to be caused by a ground-level fall. The witness

testified that Sconyers told her “two stories” in the back of the

ambulance: first, Lincoln was standing on a porch and fell about two

to three feet off a ledge; and second, he fell on a “wheel chock”; and

Sconyers later told another paramedic that Lincoln slipped on a door

threshold and tripped and fell. The other paramedic also testified

based on her experience that Lincoln’s skull fracture was not

4
consistent with a fall of two to three feet. Sconyers kept repeating

that it was his “fault” if anything happened to Lincoln.

Finch testified that at the hospital, after Lincoln had surgery,

Sconyers told her that after getting home Lincoln wanted to go

outside to play with chalk. Sconyers opened the outside door, went

to the bathroom to take his knee brace off, and told Lincoln to go

outside. Lincoln then “took off running,” and Sconyers heard a loud

thump and a cry and ran to find Lincoln lying out back on the

concrete patio. Finch further testified that no one was at home with

Sconyers and Lincoln at the time, that she did not know of any prior

fracture of Lincoln’s skull, and that she was not aware of anything

prior to the fatal incident that could have resulted in any type of

brain injury to Lincoln.

Both parties presented medical experts who testified about

Lincoln’s injuries. Extensive testimony from the State’s experts

showed that the nature and severity of Lincoln’s fatal brain injury

made it highly unlikely the injury was caused accidentally by a fall

at ground level or from a low height. One of those experts testified

5
that symptoms of that fatal injury would have appeared

immediately after the impact, and Lincoln could not have continued

to move normally after sustaining those injuries. The GBI medical

examiner who performed an autopsy on Lincoln classified Lincoln’s

death as a homicide because her examination and the medical

records indicated that “non-accidental-inflicted trauma” caused the

fatal injury and because the historical account of the incident

provided by Sconyers did not explain Lincoln’s injuries. One of

Sconyers’s medical experts testified that it was reasonably possible

that Lincoln’s fatal injury resulted from an accident, in part because

a prior head injury that caused a subdural hematoma made him

“more prone to get a new one with more serious complications.”

Sconyers testified in his own defense as follows. He was a

sergeant and advanced EMT with the Augusta Fire Department.

The week before Lincoln’s death, Sconyers and his lieutenant went

into a burning home to search for a little boy who was unaccounted

for at the time, and Sconyers fell through the floor, injuring his knee.

For that reason, Sconyers had a knee brace, was on leave, and was

6
able to pick up Lincoln from daycare on May 1, 2019. When they

arrived home, Sconyers told Lincoln he could play outside with chalk

and opened the door for him. Sconyers went to use the bathroom and

adjust his knee brace, and he told Lincoln to go outside. Lincoln

“took off running,” and Sconyers heard a thump and heard Lincoln

“almost scream.” Sconyers strapped his knee brace back on,

“hobbled” outside as fast as he could, and found Lincoln lying

“outside of [the] back patio.” Lincoln turned his head “just a little

bit” and became unresponsive. Sconyers stabilized Lincoln’s neck

and body, took him inside, and immediately called 911.

1. Sconyers contends that the trial court erred by permitting

the State repeatedly to introduce evidence of Lincoln’s previous

injuries without cautioning the jury that the parties agreed that

Sconyers did not cause those injuries.

Prior to the presentation of any evidence to the jury, Sconyers

moved under OCGA § 24-4-404 (b) (“Rule 404 (b)”) to exclude any

testimony that Lincoln “had black eyes on two different occasions”

in the months before his death. Rule 404 (b) requires the exclusion

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of “[e]vidence of other crimes, wrongs, or acts” the defendant may

have committed to prove the defendant’s bad character and show he

acted “in conformity therewith” in committing the charged offense.

Sconyers argued that Lincoln’s prior black-eye injuries fell under

Rule 404 (b) because they were extrinsic to Lincoln’s death, and that

they had to be excluded under that rule because the State could not

prove that Sconyers caused the injuries. But the prosecutor argued

that Lincoln’s prior injuries did not fall under Rule 404 (b) at all

because they were intrinsic to the crime. See Roberts v. State, 315

Ga. 229, 235 (2) (a) (880 SE2d 501) (2022) (“The limitations and

prohibition on ‘other acts’ evidence set out in [Rule ]404 (b) do not

apply to ‘intrinsic evidence.’” (citation and punctuation omitted)).

Specifically, the prosecutor argued that the State needed to

introduce the prior injuries to explain the circumstances behind

Lincoln’s prior head injuries, because Sconyers’s expected defense

was that Lincoln’s prior head trauma – which caused the presence

of both “old blood and new blood” in Lincoln’s brain, according to a

8
defense expert – could have contributed to his death. 2 The trial court

agreed with the prosecution that the prior injuries were admissible

as intrinsic evidence – not falling under Rule 404 (b) – because they

allowed the State to explain and rebut the testimony of Sconyers’s

expert. See Johnson v. State, 312 Ga. 481, 491 (4) (863 SE2d 137)

(2021) (Evidence is intrinsic when it is “necessary to complete the

story of the crime.” (citation and punctuation omitted)). The trial

court also found that the evidence satisfied OCGA § 24-4-403 (“Rule

403”).

On appeal, Sconyers does not challenge the trial court’s ruling

that the prior injuries were admissible as intrinsic evidence.

Instead, he raises a two-part argument that he did not raise below:

that the trial court allowed testimony about Lincoln’s previous

injuries to be repeatedly introduced3 and did not caution the jury

2 One of the State’s medical experts also testified that surgery on Lincoln

revealed “old clot and new clot,” that is, “blood from a prior injury and blood
from this injury.”
3 Sconyers described the evidence of Lincoln’s prior injuries as going “far

beyond merely providing a medical explanation for ‘old blood’” and having
“function[ed]” as additional evidence of “prior difficulties” between Sconyers
and Lincoln “through the State’s associations and inferences created through
repetition and questioning.”
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that the parties agreed that Sconyers did not cause those injuries.

But Sconyers never objected on those bases in the trial court, and he

never requested a limiting instruction that the parties had agreed

Sconyers did not cause Lincoln’s prior injuries. This enumeration

therefore can be reviewed only for plain error. See OCGA §§ 17-8-58

(b); 24-1-103 (a) (1); Henderson v. State, 317 Ga. 66, 78 (4) (c) (891

SE2d 884) (2023) (The appellant “did not ask for a limiting

instruction at trial, so we review his claim [that allowing certain

evidence was error without an accompanying limiting instruction]

only for plain error.”); Payne v. State, 313 Ga. 218, 221 (1) (869 SE2d

395) (2022) (The appellant asserted on appeal that the trial court

erred by admitting testimony about a certain incident because it “did

not qualify as a prior difficulty” under Rule 404 (b), but he “did not

object on the ground” asserted on appeal. “Thus, [he] failed to

preserve [the enumerated] error for ordinary review.”). We see no

plain error.

To show plain error, an appellant must identify an error that

was not affirmatively waived, was obvious beyond reasonable

10
dispute, affected the outcome of his trial or otherwise affected his

substantial rights, and seriously affected the fairness, integrity, or

public reputation of judicial proceedings. See Henderson, 317 Ga. at

78 (4) (c); Payne, 313 Ga. at 222 (1). “For an error to be obvious for

purposes of plain error review, it must be plain under controlling

precedent or in view of the unequivocally clear words of a statute or

rule.” Grier v. State, 313 Ga. 236, 242 (3) (b) (869 SE2d 423) (2022)

(citation and punctuation omitted).

Sconyers’s claim of error relates to testimony from Finch, a

daycare employee, and a DFCS employee addressing Lincoln’s black

eyes. Finch testified that she saw Lincoln with black eyes on two

occasions prior to his death. In February 2019, Lincoln was sleeping,

and she and Sconyers were in the bathroom when they heard

something. Sconyers left and returned “in a couple of seconds” with

Lincoln, who had a big “goose egg” in the middle of his head but was

“grinning,” did not have dilated pupils, continued to act like a

“normal” child the rest of the night, and was not lethargic or fussy.

Finch believed Lincoln was injured a few times from sleepwalking,

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and she discussed the situation with Lincoln’s pediatrician. Finch

testified that on April 29, 2019, while Finch’s mother was

babysitting Lincoln, he was climbing on his highchair when his foot

slipped and he hit his eye on it. The defense later called Finch’s

mother, who confirmed that when she was with Lincoln a day or two

before his fatal injury, he injured himself on a highchair, causing a

little bruise on the right side of his face.

An employee at the daycare center that Finch’s children

attended, Brenda Warren, testified that in February 2019 she filled

out an incident report when Lincoln arrived with two black eyes and

a bruised face, and Finch said he was jumping on his bed and hit the

top of it, but she did not take him to the doctor because her

“boyfriend was a paramedic” and he did not feel it was necessary.

Because Finch’s comments “just didn’t seem right,” Warren

ultimately called Child Protective Services. Afterwards, Warren

noticed that Sconyers was not picking Lincoln up at the daycare

anymore. Warren also testified to a second incident, on April 29,

2019, two days before Lincoln’s death, when Lincoln had a black eye

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and Warren was told that he had fallen, and a third incident, on May

1, when Lincoln had a cut on his lip. Warren described Lincoln as an

“active” and “happy” child who “napped well,” “ate well,” and played

with his friends on the playground.

The DFCS employee who investigated the two black-eye

incidents testified that the daycare called DFCS because it was

“concerned about the safety of the child” and felt that the incidents

were “too close” in time. As a result, she talked with Finch and

Sconyers and was told that Lincoln’s pediatrician had diagnosed him

as a sleepwalker, and the first injury occurred when Lincoln fell

while sleepwalking, and that the second injury occurred when

Lincoln fell on a highchair at his grandmother’s home.

We see no plain error because Sconyers’s claims related to this

testimony about the circumstances surrounding Lincoln’s prior

injuries do not show that the trial court acted contrary to any

controlling authority. Sconyers contends the trial court should have

instructed the jury that the parties had agreed he did not cause

Lincoln’s prior injuries. But we are aware of no authority requiring

13
the court to give that limiting instruction. See Salvesen v. State, 317

Ga. 314, 317 (2) (893 SE2d 66) (2023) (The State is “not required to

stipulate to . . . the circumstances surrounding the murder.”

(citation and punctuation omitted)); Anderson v. State, 313 Ga. 178,

183 (3) (a) (869 SE2d 401) (2022) (“[A] limiting instruction generally

is not warranted for intrinsic evidence.”). Sconyers also contends

that too many witnesses testified about the prior injuries, but again,

no authority required a limit on the number of those witnesses. The

existence of “some overlap” and “substantial prejudicial effect” in the

testimony of multiple witnesses does not necessarily make that

evidence so needlessly cumulative or unfairly prejudicial as to

require its exclusion under Rule 403. Naples v. State, 308 Ga. 43, 53

(2) (838 SE2d 780) (2020). Accordingly, it was not obvious either that

some of the testimony about Lincoln’s prior injuries should have

been excluded or that the jury should have been instructed that

Sconyers did not cause those injuries. Sconyers therefore has failed

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to show error that is clear beyond reasonable dispute.4

4 Sconyers also argues under this enumeration that certain evidence of

his prior difficulties with Lincoln – which we describe below in Division 3,
specifically, Lincoln’s jealousy toward Sconyers, Sconyers hitting Lincoln, and
the arguing and fighting between the two – was improperly admitted under
Rule 404 (b). As an initial matter, Sconyers’s objection at trial did not extend
to this evidence, contrary to his contention on appeal. His specific objection in
the trial court was only to testimony that Lincoln “had black eyes on two
different occasions several months before the incident,” and Sconyers’s
subsequent argument was limited to the black-eye injuries. Thus, this claim
also can be reviewed only for plain error. See Payne, 313 Ga. at 221 (1).
Sconyers argues that Lincoln’s jealousy was not admissible as “other act”
evidence under Rule 404 (b) because it was not an act at all, and also because
it was not relevant. But even if evidence of jealousy was not an “act” for
purposes of Rule 404 (b), it could be admissible as relevant evidence of the
nature of Sconyers’s poor relationship with Lincoln. See Shellman v. State, 318
Ga. 71, 77-78 (897 SE2d 355) (2024) (holding that evidence of the relationship
between the defendant and the victim, including jealousy, was relevant
because it shed light on the defendant’s motive in committing the charged
offenses). Rule 404 (b) is a “rule of inclusion,” State v. Jones, 297 Ga. 156, 159
(2) (773 SE2d 170) (2015), so the fact that evidence may not be admissible
under that rule does not mean that the rule excludes the evidence.
Sconyers also argues generally that none of his prior difficulties with
Lincoln were relevant except in a generic fashion to show motive. But evidence
of a defendant’s prior acts is ordinarily admissible in evidence under Rule 404
(b) “when the defendant is accused of a criminal act against that person, where
the nature of the relationship between the defendant and the victim sheds light
on the defendant’s motive in committing the offense charged.” Lowe v. State,
314 Ga. 788, 793 (2) (a) (879 SE2d 492) (2022) (citation and punctuation
omitted). Sconyers additionally contends that the prior-act evidence was not
admissible under Rule 404 (b) because there was insufficient evidence to prove
that he committed the acts. In his view, all of the evidence that he committed
the prior acts was inadmissible hearsay from Finch’s co-workers. But as we
explain more fully in Division 3, Sconyers did not object to the co-workers’
testimony. By statute, “if a party does not properly object to hearsay, the
objection shall be deemed waived, and the hearsay evidence shall be legal
evidence and admissible.” OCGA § 24-8-802. Sconyers has failed to show that

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2. Sconyers contends that the trial court erred when it

instructed the jury about “prior difficulties” between Sconyers and

Lincoln. The trial court instructed the jury as follows:

Evidence of prior difficulties between the defendant
and the alleged victim, Lincoln Davitte, has been
admitted for the sole purpose of illustrating, if it does, the
state of feeling between the defendant and the alleged
victim.
Whether this evidence illustrates such matters is a
matter solely for you, the jury, to determine, but you are
not to consider such evidence for any other purpose.

Sconyers argues that this instruction failed to provide any limitation

as to what evidence was subject to it, that the instruction improperly

assumed there had been evidence of prior difficulties perpetrated by

Sconyers against Lincoln, and that the instruction did not define

“state of feeling” even though that was the only determination the

instruction left to the jury and would naturally be inferred by the

jury. Although Sconyers objected to this instruction during the

charge conference, he did not object to it on any ground after the jury

it is obvious beyond reasonable dispute that if he had properly objected under
Rule 404 (b), the trial court would have abused its discretion in finding that
the prior difficulties evidence met the requirements of that rule. Accordingly,
admission of the prior difficulties into evidence does not amount to plain error.
16
was charged. Thus, Sconyers did not properly preserve any of his

claims, and, indeed, he acknowledges that the instruction on prior

difficulties is subject to review for plain error only. See OCGA § 17-

8-58 (b); Rawls, 310 Ga. at 217-218 (4). We see no plain error.

All of the language in the instruction on prior difficulties that

Sconyers now questions “was and is consistent with Georgia’s

pattern jury instructions[,] and [Sconyers] has not otherwise shown

that there was plain error.” Taylor v. State, 306 Ga. 277, 286-287 (3)

precedent holding that a trial court erred in connection with the

pattern charge on prior difficulties. See McKibbins v. State, 293 Ga.

843, 853 (7) (750 SE2d 314) (2013) (seeing no plain error where the

5 See also Dyal v. State, 297 Ga. 184, 188 (5) & n.9 (773 SE2d 249) (2015)

(similar holding with respect to a previous version of the pattern jury
instruction on prior difficulties, also setting out the current version that was
applicable at the time of Sconyers’s trial); Suggested Pattern Jury Instructions,
Vol. II: Criminal Cases, § 1.34.20 (4th ed. 2007, updated Aug. 2022) (“Evidence
of prior difficulties (or lack thereof) between the defendant and (the alleged
victim) (a witness) has been admitted for the sole purpose of illustrating, if it
does, the state of feeling between the defendant and the (alleged victim)
(witness); (the reasonableness of any alleged fears by defendant or alleged
victim). Whether this evidence illustrates such matters is a matter solely for
you, the jury, to determine, but you are not to consider such evidence for any
other purpose.”).
17
appellant pointed to no decision that failing to define “accomplice”

in the pattern charge on accomplice testimony was error). More

specifically, there has been no requirement that the trial court

define “state of feeling.” See id. at 854 (7) (“[A] trial court is not

required to instruct on the meaning of all words used in the charge,

particularly words of common understanding.” (citation and

punctuation omitted)). Sconyers has cited no authority that the

instruction at issue improperly recognizes that some evidence of

prior difficulties had been admitted. And there is no authority

requiring a trial court to specify what evidence qualifies as prior

difficulties. See Chester v. State, 267 Ga. 9, 12 (2) (471 SE2d 836)

(1996) (holding that a trial court is not required to specifically point

out particular evidence to which an instruction applies and that a

trial court should refuse to give jury charges that “are more adjusted

to the exhortation of counsel than to the impartial clarity which

should characterize the instructions of the court” (citation and

punctuation omitted)); see also Collins v. State, 312 Ga. 727, 743 (7)

n.15 (864 SE2d 85) (2021) (same). Because the instruction on prior

18
difficulties “did not involve a clear departure from a settled legal

rule,” it did not amount to plain error. McKibbins, 293 Ga. at 854

(7).

3. Sconyers contends that the trial court erred by admitting

testimony about alleged hearsay statements made by Finch about

Sconyers’s and Lincoln’s arguing, and about Sconyers hitting

Lincoln. Sconyers argues that the State violated the requirement of

OCGA § 24-6-613 (b) (“Rule 613 (b)”) that, before extrinsic evidence

of a prior inconsistent statement can be admitted into evidence, the

witness must be “first afforded an opportunity to explain or deny the

prior inconsistent statement.” However, because Sconyers failed to

object to the testimony at issue on any ground, he acknowledges that

this enumeration can be reviewed for plain error only. See OCGA §

24-1-103 (a) (1); Payne, 313 Ga. at 221 (1).6 We see no error, much

6 See also Harvey v. State, 300 Ga. 598, 603-604 (4) (a) (797 SE2d 75)

(2017) (Because the appellant did not object to a detective’s testimony about
the prior inconsistent statements of two witnesses, the appellant’s assertion
that the trial court erred in admitting it could be examined only for plain
error.), overruled on other grounds, Nalls v. State, 304 Ga. 168, 177-178 (3) (a),
180 (3) (b) (815 SE2d 38) (2018).
19
less plain error.

The alleged hearsay statements of Finch about which Sconyers

complains are found in the testimony of two co-workers of Finch’s.

One of those co-workers, Carey Story, testified that Finch told Story

that she took Lincoln to counseling for “jealousy issues” because he

and Sconyers were “arguing a lot” and Lincoln “was telling [Finch]

that [Sconyers] hits him.” According to Story, Finch attributed

Lincoln’s injuries to sleepwalking. Another co-worker of Finch’s,

Sera Druelle, testified that Finch showed Druelle a photo where one

of Lincoln’s eyes was swollen shut and attributed the injury to the

sleepwalking. According to Druelle, Finch had never said anything

about Lincoln having behavioral issues until, about a week or a week

and a half before the fatal incident, Finch said that she thought

Sconyers’s “true colors were starting to come out”; that when he was

trying to pick up Lincoln at the mall, Lincoln “got upset and started

pointing at [Sconyers], and Lincoln started hitting his own face,” and

Finch “turned around and said [to Sconyers] did you hit him?”; and

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that Lincoln “would have behavioral issues around [Sconyers].” 7

Finch testified at trial that she took Lincoln to counseling,

which his doctor recommended in December 2018, because he had

developed “jealousy issues” with Sconyers. Finch also testified that

she and Sconyers were engaged at the time of trial and that she did

not believe that he injured Lincoln in any way. She denied that she

remembered ever discussing with any of her co-workers that

Sconyers and Lincoln had been fighting. Finch also denied that there

was ever an incident at a mall when Lincoln indicated Sconyers had

hit him and that she ever asked Sconyers if he had hit Lincoln

because she and Sconyers were “always together.” Finch further

denied that she ever had any apprehensions about her relationship

with Sconyers or that Sconyers had a temper or argued with Lincoln.

Instead, Finch testified, Sconyers and Lincoln “just played like

father and son.” Finch subsequently denied ever discussing with her

co-workers the nature of her relationship with Sconyers. On cross-

7 The DFCS employee also testified about a private interview with
Lincoln’s sister, who said that Sconyers would spank Lincoln because he was
crying.
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examination, Finch also denied ever telling anyone she worked with

that Sconyers “abuses Lincoln or anything like that”; she asserted

that she “wasn’t close with anybody in the office” and that she “really

kept [her] personal stuff to [her]self.”

“[P]rior inconsistent statements that meet the requirements of

[Rule ]613 (b) are not hearsay if the declarant testifies at trial and

is subject to cross-examination. See OCGA § 24-8-801 (d) (1) (A).”

Neloms v. State, 313 Ga. 781, 787 (4) (a) (873 SE2d 125) (2022). “The

failure of a witness to remember making a statement, like the

witness’s flat denial of the statement, may provide the foundation

for calling another witness to prove that the statement was made.”

Id. (citation and punctuation omitted).

Here, Finch’s denials and alleged lack of memory of her prior

statements and their contents were a sufficient foundation to allow

other witnesses to testify about the content of those statements, that

is, the arguing and the hitting. See Neloms, 313 Ga. at 788 (4) (b);

Bridgewater v. State, 309 Ga. 882, 886-887 (2) (848 SE2d 865) (2020)

(One witness’s “unambiguous denial that he had ever spoken with

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[a second witness]—as well as his assertion that he did not recall

ever speaking with him—obviated the need for the prosecutor to ask

[the first witness] about specific statements he made to [the second

witness] and provided sufficient foundation for the State to present

extrinsic evidence of such statements.”); Murdock v. State, 299 Ga.

177, 179-180 (4) (787 SE2d 184) (2016) (A witness’s prior

inconsistent statement about a shooting was properly admitted

under Rule 613 (b) after she testified that “she could not recall the

details of the shooting itself or the content of her statement.”).

Sconyers complains of the State’s failure to confront Finch with

the specific extrinsic evidence of her alleged prior inconsistent

statements. But as Bridgewater and Murdock indicate, Finch’s

failure to recall making any statement at all about fighting, abuse,

or anything like that, as well as her denial of the mall incident and

Sconyers arguing with Lincoln, relieved the prosecutor of the need

to ask about specific statements. Moreover, at the prosecutor’s

request, the trial court directed Finch to remain subject to recall and

the rule of sequestration. See Wammock v. Celotex Corp., 793 F2d

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1518, 1522-1523 (II) (11th Cir. 1986) (“[I]f the witness is or might be

available for recall and the opposing party simply fails to recall him,

there has been a sufficient opportunity to explain such that the

extrinsic evidence should be admitted under Rule 613 (b). Therefore,

one key to the admissibility of the extrinsic evidence of the prior

inconsistent statement is the availability of the witness for recall.”);

Hood v. State, 299 Ga. 95, 98-99 (2) (786 SE2d 648) (2016) (“On the

issue of admitting extrinsic evidence of a witness’s prior inconsistent

statement, OCGA § 24-6-613 (b) substantially adopted the language

of Federal Rule of Evidence 613 (b) as it read in 2011; to the extent

the new Georgia evidence rules borrow from the text of the federal

evidence rules in this way, we look for guidance to the decisions of

federal appellate courts, particularly the Eleventh Circuit,

interpreting the federal rules.”).

4. Sconyers contends that the trial court erred by permitting

the prosecution to impeach Finch with alleged bias through the

testimony of Leslie Morgan, who was the guardian ad litem

appointed in Finch’s case in juvenile court involving her daughter’s

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custody and visitation. We see no error.

During her direct examination, Finch testified that her

daughter had not been in her custody since Lincoln’s death and that

she was not offered any opportunity to be able to see her daughter

on a more regular basis, nor any type of visitation by the juvenile

court. Morgan later testified that Finch was offered the opportunity

to have a visitation plan with her daughter, but that it was not ever

accomplished. Morgan explained that she was part of a conference

call with the juvenile court judge and two others, during which an

agreement was reached that the child’s therapist would help

facilitate a supervised visit on the condition that Finch would sign

an affidavit that she is no longer seeing or dating Sconyers, but

Finch never executed the affidavit. On cross-examination, Morgan

agreed that neither Finch nor her attorney was on the conference

call, but she named someone from the office of Finch’s attorney as

being on the call. Although Finch was aware that there was going to

be a conference call addressing visitation, Morgan was not sure what

Finch’s attorney told her after the call.

25
Sconyers objects to Morgan’s testimony on two bases. First, he

contends that her testimony was not based on personal knowledge

and therefore was not admissible under OCGA § 24-6-602 (“Rule

602”). Second, he contends that her testimony did not establish a

specific instance of Finch’s conduct showing that she was biased in

favor of Sconyers, and therefore was not admissible to show her

character for untruthfulness under OCGA § 24-6-608 (b) (“Rule 608

(b)”). Because Sconyers raised only the Rule 608 (b) objection at trial,

we review his Rule 602 argument only for plain error. See OCGA §

24-1-103 (a) (1); Henderson, 317 Ga. at 78 (4) (c). 8 We address the

arguments in turn.

(a) Rule 602 generally prohibits a witness from testifying “to a

matter unless evidence is introduced sufficient to support a finding

that the witness has personal knowledge of such matter. Evidence

to prove personal knowledge may, but need not, consist of the

8 See also Brown v. State, 314 Ga. 193, 199 (3) (875 SE2d 784) (2022)

(Because the appellant did not object to certain testimony on the ground that
the witnesses lacked personal knowledge so as to preserve ordinary appellate
review on that issue, it could be reviewed only for plain error.).
26
witness’s own testimony.” Under that rule, as under the

corresponding federal rule, “witnesses may testify about events they

personally observed.” Draughn v. State, 311 Ga. 378, 385 (4) (858

SE2d 8) (2021). But “a court should exclude testimony for lack of

personal knowledge if the witness could not have actually perceived

or observed that which he testifies to.” Kirby v. State, 304 Ga. 472,

478 (3) (b) (819 SE2d 468) (2018) (citation and punctuation omitted).

Morgan’s testimony made clear the limit of her personal

knowledge, i.e., that her knowledge of Finch’s unfulfilled

opportunity for a visitation plan with her daughter was based

entirely on a conference call in which someone from the office of

Finch’s attorney participated. Morgan did not state an opinion or

inference about Finch’s knowledge or actions. To the contrary,

Morgan’s testimony was “not impermissible opinion testimony” but

was “straightforward factual testimony regarding matters within

[her] personal knowledge,” Cooper v. State, 317 Ga. 676, 685 (2) (895

SE2d 285) (2023), only about what she “actually perceived,” Kirby,

304 Ga. at 478 (3) (b). Thus, we see no violation of Rule 602, much

27
less a violation that is obvious beyond reasonable dispute.

(b) Rule 608 (b) generally prohibits proof by extrinsic evidence

of “[s]pecific instances of the conduct of a witness, for the purpose of

attacking or supporting the witness’s character for truthfulness,”

except for a conviction of a crime as provided in OCGA § 24-6-609 or

“conduct indicative of the witness’s bias toward a party.” Sconyers’s

argument about what Morgan’s testimony proved goes to its

relevance to meet the exception in Rule 608 (b) for “conduct

indicative of the witness’s bias toward a party.” The value of

Morgan’s testimony lay in its tendency both to disprove Finch’s

testimony denying any offer or opportunity for visitation and to

prove bias on her part in favor of Sconyers. See OCGA § 24-4-401

(“Rule 401”) (defining “relevant evidence” as “evidence 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”). Morgan’s testimony – that Finch

knew about the conference call and her attorney had a

representative on the call – permitted the natural, reasonable

28
inference that Morgan accurately reported the substance of the

conference call in which she participated in her official role as

guardian ad litem, that Finch’s attorney performed her duty to

ascertain what happened on the call and inform Finch of the

visitation offer, and that Finch therefore was offered and declined a

visitation plan if she stopped seeing Sconyers. In other words,

Morgan’s testimony established that – contrary to Finch’s own

testimony – Finch was offered a visitation plan with her older

daughter, but declined to go along with that plan because it required

her to stop seeing Sconyers. See Fitts v. State, 312 Ga. 134, 142 (3)

(859 SE2d 79) (2021) (“When considering circumstantial evidence,

jurors are entitled to draw reasonable inferences based on their own

common-sense understanding of the world that are ordinarily drawn

by ordinary people in the light of their experience in everyday life.”

(citation and punctuation omitted)).

In its ruling, the trial court properly relied on OCGA § 24-6-

621 (“Rule 621”), which provides that “[a] witness may be impeached

by disproving the facts testified to by the witness.” It is true that

29
this statute does not authorize the use of “extrinsic evidence to

impeach a witness by contradiction” on a matter that is “wholly

immaterial” or “purely collateral” to the material issues at trial.

Scott v. State, 309 Ga. 764, 770-771 (3) (c) (848 SE2d 448) (2020).9

But the nature and depth of Finch’s relationship with Sconyers was

relevant to the jury’s assessment of the material issue of her

potential bias. See McNabb v. State, 313 Ga. 701, 715 (2) (b) (i) (872

SE2d 251) (2020) (“[T]he nature of the relationships between the

witnesses and defendants was relevant, as the jury’s understanding

of a familial relationship between a defendant and a witness could

affect the jury’s assessment of the witness’s credibility or potential

bias and provide context for the witness’s testimony.”).10

Consequently, it was within the trial court’s discretion to admit

9 Scott properly relied on case law under former OCGA § 24-9-82, in

addition to current Rule 621, because that current rule was carried over from
the old Evidence Code and has no federal corollary.
10 See also OCGA § 24-6-622 (“Rule 622”) (“The state of a witness’s

feelings towards the parties and the witness’s relationship to the parties may
always be proved for the consideration of the jury.”); Virger v. State, 305 Ga.
281, 295 (7) (c) (824 SE2d 346) (2019) (holding under Rule 622 that evidence of
a prior statement by a girlfriend of the defendant to a detective was admissible
to show that her testimony, which was beneficial to the defendant, may have
been motivated by bias in his favor).
30
Morgan’s testimony “as a relevant contradictory statement.” See

Corley v. State, 308 Ga. 321, 325 (3) (840 SE2d 391) (2020) (“[I]t is

within a trial court’s discretion to determine if a party is improperly

attempting to use extrinsic evidence to impeach a witness by

contradiction under [Rule ]621 on a matter collateral to the relevant

issues at trial.”).

Accordingly, the trial court did not err by allowing the State to

impeach Finch with the extrinsic evidence of Morgan’s testimony

that both contradicted Finch’s testimony about visitation and

showed a bias on the part of Finch in favor of Sconyers.

Judgment affirmed. All the Justices concur.

318 Ga. 855
FINAL COPY

S24A0139. SCONYERS v. THE STATE.

ELLINGTON, Justice.

Charles Michael Sconyers appeals his convictions for malice

murder and cruelty to children in the first degree in connection with

the death of Chelsea Finch’s 23-month-old son, Lincoln Davitte,

from blunt-force trauma to his skull.1 The State presented evidence

at trial showing that Sconyers and Finch lived together and that

while Lincoln was at home in the sole care of Sconyers, Lincoln

1 The crimes occurred on May 1, 2019. On November 5, 2020, a Columbia

County grand jury indicted Sconyers for malice murder, two counts of felony
murder, and one count each of aggravated assault and cruelty to children in
the first degree. After a jury trial that ended on May 13, 2022, Sconyers was
found guilty on all counts. On that same day, Sconyers was sentenced to serve
life in prison for malice murder and concurrent 20-year prison terms for
aggravated assault and cruelty to children. The felony murder counts were
vacated by operation of law. The trial court later conducted a resentencing
hearing and, on May 25, 2022, entered a new sentence that merged the
aggravated assault count into the malice murder conviction but did not change
the other sentences. Sconyers filed a timely motion for new trial, which he
amended on September 12, 2022. After a hearing on February 27, 2023, the
trial court denied the amended motion for new trial on March 20, 2023.
Sconyers filed a timely notice of appeal, and the case was docketed in this Court
to the term beginning in December 2023 and submitted for a decision on the
briefs.
sustained a severe head injury that several medical experts testified