Khaliq Khan v. State
Khaliq Khan v. State
Opinion of the Court
On June 30, 2011, Khaliq Khan was indicted in the Circuit Court for Montgomery County on two counts of sex offense in the third degree and two counts of second degree assault. These charges were the result of Khan’s alleged assault of two girls in a cosmetics store where Khan worked as a security guard. After a jury trial, Khan was found guilty of one count of second degree assault and found not guilty of all other
Questions Presented
Appellant presents four questions, which we have rephrased as follows:
I. Did the trial court err in reseating a white male juror, struck by the defense, on the basis of a Batson challenge?
II. Did the trial court err in permitting the State to present evidence of prior customer complaints against appellant?
III. Did the trial court err in allowing the State to question appellant regarding possible racial prejudice held by appellant?
IV. Did the trial court err in voir dire by asking potential jurors whether they would be biased by the charges against appellant, without attributing that potential bias to “strong feelings?”
For the reasons that follow, we answer no to each question and affirm the judgment of the circuit court.
Factual and Procedural History
Background
On March 27, 2011, Khaliq Khan was working as a security guard at Ulta, a cosmetics store in downtown Silver Spring, when twelve-year-old Joie Gadsden and thirteen-year-old Jazmyn Parker came into the store. Gadsden and Parker entered the store to look around while Gadsden’s parents were in a nearby bookstore. According to testimony by both Gadsden and Parker, Khan called the girls over to show them perfume. Both girls testified that Khan sprayed perfume on them, including on their chests, and had the girls smell each other. Gadsden testified that during this encounter Khan grabbed her waist and squeezed her buttocks, and Parker
Jury Voir Dire
During voir dire, the court asked the following question: ]T]he State claims that the defendant, Mr. Khan, had sexual contact with two minors. Is there any member of the panel who, by reason of the nature of the charges, that is to say, by reason of what he’s alleged to have been, to have done, will be unable to listen fairly and impartially?
There were no affirmative responses. After the court finished questioning jurors, defense counsel objected to the form of the above question:
The time that I remembered that Your Honor asked it, you used “based on this allegation, does anybody, would anybody be unable to be fair,” or something along those lines. And so, the question that I would, that we had asked in our voir dire is, “does it arouse strong feelings?”
The court overruled the defense’s objection, stating that the question asked by the court was sufficient to discover any bias from potential jurors owing to the alleged crimes.
Batson Challenge
During jury selection for Khan’s trial, the court noted that the defense had exercised five of its seven peremptory strikes against white men. After asking defense counsel to provide race- and gender-neutral reasons for each strike, the court was dissatisfied with counsel’s proffer in regard to one potential juror, number 95, and so reseated this juror. Defense counsel explained the peremptory strike against juror 95 as follows:
*564 [Generally for him, Your Honor, it was he’s an attorney with the federal government. The way he dressed. The way that his grooming was. It was, to me, again, somebody that was very conservative. It had nothing to do with the fact that he was a male or white. It was just the conservative sense[.]
Defense counsel went on to state:
But I’m talking about my vision and my judgment of the way he dresses, the way he grooms, the way he carries himself, he strikes me as a conservative type person.... I’m conservative in many ways. I’m not sure I’m a good juror....
After a discussion regarding this juror, and each of the others, the court concluded:
... the only one I’m finding pretextual is 95, because the others, based on the record, I accept the explanations, not withstanding the five out of seven pattern. I’m going to reseat 95.
Following the court’s ruling, defense counsel continued to assert that his reasons for the strike were not pretextual, to which the judge responded: “I think you’re being candid. I just don’t have to buy it.”
“Bad Acts”
During appellant’s cross-examination of Georgia Kalapothakos, the manager of the store where appellant worked, defense counsel asked about her opinion of appellant as a worker:
Q: What would you say, how would you describe Mr. Khan as a worker at the store?
[At this point, the prosecution objected and was overruled.]
A: ... He was reliable. He was always early. He—
Q: Were you pleased with his work?
A: Yes. Overall, yes.
Following this cross-examination, the prosecution asked for a ruling from the court that this testimony “opened the door” for the prosecution to ask Kalapothakos about a customer
Appellant, appellant’s wife, and appellant’s stepson also discussed this complaint. Appellant’s wife, Chanaz Khan (“Mrs. Khan”), acknowledged that she was aware of the prior complaint, though from her testimony she appeared not to have known its details. Appellant’s stepson, Asman Nasir (“Mr. Nasir”), testified that he had no knowledge of the prior complaint. During the prosecution’s cross-examination of appellant, he was asked whether he remembered the conversation he had with Kalapothakos regarding his boundaries and duties as a security guard, and whether he remembered a prior complaint from a customer regarding appellant “touching her.” The court allowed the above testimony, ruling that the prosecution was allowed to respond to the character evidence and issues introduced by the defense.
Testimony Regarding Racial Prejudice
At trial, Khan testified that Gadsden and Parker had made him nervous, that he intended to “occupy” them to prevent them from misusing products in the store, and that he never intended to offend or touch either girl inappropriately. On direct examination, appellant provided the following response to a question about his duties at the store:
You go according to the books, because the neighborhood of that Silver Spring will, I mean, not a discrimination, but*566 over there you cannot control the (unintelligible) if you don’t have all type of, if you go according to the books, okay, they will play it like that.
During the State’s cross-examination, appellant was asked to clarify' what he meant by his comment “not a discrimination.”
A jury found Khan guilty of one count of second degree assault and acquitted him of the other charges. On February 8, 2012, Khan was sentenced to five years of confinement, with all but sixty days suspended, and placed on supervised probation for three years upon release. Following his sentencing, Khan noted this timely appeal.
Discussion
L
Appellant first contends that the circuit court erred in finding defense counsel’s race- and gender-neutral explanation for one of its peremptory strikes to be pretextual. For the reasons explained below, we do not agree that the circuit court committed reversible error in reseating this juror.
The Supreme Court has laid out a three-part analysis by which a trial court should examine a party’s use of peremptory challenges if contested as unconstitutionally discriminatory. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). First, the trial court must determine whether a prima facie case of racial discrimination against potential jurors exists. Id. If such a finding is made, the party exercising the peremptory strikes must present a race-neutral explanation for each strike. Id. The trial court must then decide whether purposeful discrimination has occurred. Id.
Appellant takes issue with the circuit court’s application of the second and third steps in its Batson analysis. He argues that the race- and gender-neutral reasons proffered by his counsel for striking juror 95 were believable, and that because the trial judge acknowledged that counsel was being “candid,” the court’s finding of pretext was clear error. We disagree.
In completing the second step of a Batson analysis, the question is only whether the reasons offered for the peremptory strike are race-neutral. This step “does not demand an explanation that is persuasive, or even plausible.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769. It is true that the reasons offered by defense counsel for the use of a peremptory strike against juror 95 appear to be race- and gender-neutral. Defense counsel noted that his reasons for striking this juror were based on the conservative appearance of the juror and the fact that the juror was a government attorney. Appellant argues that because these reasons proffered for striking juror 95 were facially valid and race- and gender-neutral, they should be accepted. This is not the final step in a Batson analysis, however, and it does not necessarily establish that the strikes were proper. In Gilchrist v. State, 340 Md. 606, 667 A.2d 876 (1995), defense counsel proffered as his reasons for one challenged peremptory strike the fact that the juror was wearing a blazer and khaki slacks and was a student with sixteen years of education—not unlike the explanation at
Thus, appellant’s real argument is focused on the third step of the Batson analysis: whether the circuit court erred in finding that these race- and gender-neutral reasons for striking this juror were pretextual, and whether the circuit court therefore erred in finding purposeful discrimination in this strike. For each of the other white male jurors who were struck, defense counsel offered reasons for his exercise of peremptory strikes which generally consisted of characteristics that defense counsel had noted on paper prior to the Batson challenge being raised. These characteristics included the juror’s age, the fact that the juror’s spouse was a homemaker, the fact that the juror was closely related to law enforcement, and for one juror the fact that he was a statistician. None of these explanations fit juror 95, prompting defense counsel’s explanation that juror 95 was a young, conservative-looking attorney working for the government. Given these circumstances, the trial court believed this explanation to be pretextual.
The judge’s statement here that he believed that defense counsel was being “candid” does not indicate error in the judge’s ruling. The fact that the court believed defense counsel was partially motivated by certain characteristics he observed does not mean that the court was required to exclude the challenged juror. The trial court’s determination is whether “intentional discrimination was a substantial or motivating factor in the decision to exercise the strike.”
As a reviewing court, we give the trial court’s finding “great deference.” Bridges v. State, 116 Md.App. 113, 134, 695 A.2d 609 (1997) (“The trial judge is able to get the ‘feel’ of the opposing advocates-to watch their demeanor, to hear their intonations, and to spot their frequently unspoken purposes.” (quoting Bailey v. State, 84 Md.App. 323, 328, 579 A.2d 774 (1990))). In the present case, the trial court noted a pattern of strikes against white male jurors, and the explanation proffered for the defense’s strike against juror 95 was offered when his previously-noted explanations for this series of strikes did not apply to this juror. The explanation given was different from any of the other explanations accepted by the trial court. Given these circumstances, we do not see clear error in the court’s finding that this particular explanation was pretextual and that purposeful discrimination had occurred.
Appellant next argues that testimony regarding a prior customer complaint was inadmissible “prior bad acts” evidence, and that because the circuit court erroneously ruled that appellant “opened the door” to the State’s questions, the court should not have admitted testimony on that subject from appellant, his manager, and his wife and stepson.
According to the testimony of several witnesses, the prior complaint was from a customer who alleged that appellant inappropriately touched her, but it was never verified.
We need not delve into the intricate standard of review for prior bad acts,
First, Kalapothakos’s testimony was relevant according to the “open door” doctrine, which “is based on principles of fairness and permits a party to introduce evidence that otherwise might not be admissible in order to respond to certain evidence put forth by opposing counsel.” Mitchell v. State, 408 Md. 368, 388, 969 A.2d 989 (2009) (citing Conyers v. State, 345 Md. 525, 545, 693 A.2d 781 (1997)). “If one party has introduced irrelevant evidence, over objection, or, indeed, even ‘admissible evidence which generates an issue,’ the trial court may rule that the first party has ‘opened the door’ to evidence offered by the opposing party that
On direct examination, the prosecution asked only whether Kalapothakos had a prior conversation with appellant regarding the boundaries and duties of a security guard. The scope of that question was limited to the fact that this discussion occurred, and not the impetus for it. On cross-examination, it was defense counsel who raised the issue of appellant’s past work in general by asking how Kalapothakos would “describe him as a worker” and whether she was “pleased with his work.” In response to these questions, Kalapothakos answered that appellant was “reliable” and that she was pleased with his work “overall.” This testimony regarding appellant’s past work performance—elicited by the defense over objection—“opened the door” for the State to clarify Kalapothakos’s statement that she was pleased with appellant’s work “overall” by asking whether she had been informed of any specific misconduct.
Second, the testimony of the remaining witnesses about the prior complaint was relevant to impeach evidence of
While the proverbial door was opened to the disputed testimony, it remained for the trial court to balance its probative value against its prejudicial nature, see Rule 5-403, and here we see no abuse of discretion. The evidence in question was not presented to prove that an untoward incident actually had occurred, and the complaint’s substance was never addressed in detail. The testimony elicited from Kalapothakos during the State’s redirect examination was narrowly tailored to respond to her testimony during the defense’s cross-examination. As soon as the State attempted to elicit testimony regarding the details of the prior complaint, defense counsel’s objections were sustained. Kalapothakos did not discuss the details of this complaint; her testimony was only that a complaint had been made. Similarly, neither Mrs. Khan nor Mr. Nasir testified as to details of the prior complaint. Mrs. Khan acknowledged that she was aware of the prior complaint
III.
Appellant next argues that the trial court erred in allowing the prosecution to question him regarding racial prejudice. We review whether such evidence was admissible under an abuse of discretion standard. Robinson v. State, 151 Md.App. 384, 394, 827 A.2d 167 (2003) (“It is ordinarily within the sound discretion of the trial court to determine the admissibility of evidence.” (citing Conyers v. State, 354 Md. 132, 176, 729 A.2d 910 (1999))). Though we agree with appellant that evidence of racial prejudice is generally inadmissible and caution against its use, we conclude that there was no reversible error in the case before us.
Appellant cites Eiler v. State, 63 Md.App. 439, 492 A.2d 1320 (1985), to argue that evidence of a criminal defendant’s racial prejudice is inadmissible. In Eiler, the prosecution asked the defendant to explain how he had described a particular neighborhood in a previous hearing. Id. at 451, 492 A.2d 1320. During this testimony, the prosecution quoted extensively from the defendant’s testimony in a previous trial, where the defendant had referred to the neighborhood in question as “Spade Area,” then explained that by “Spade Area” he meant “colored,” and stated that “[being called spade] is better than being called black or colored....” Id. at 452, 492 A.2d 1320. On appeal, the Court of Special Appeals held that the prosecutor’s cross-examination of the defendant regarding the defendant’s testimony in a previous hearing was “prejudicial, irrelevant, and collateral” to the case. Id. at 454, 492 A.2d 1320.
In Eiler, the prosecution introduced racially-charged testimony from the defendant’s prior trial. In the present case, however, appellant himself had testified about the store’s neighborhood, and he made a follow-up comment that he did not intend to sound discriminatory. This vague testimony left considerable room for misinterpretation, and the State’s questioning was a relevant attempt to clarify these comments. Appellant’s remarks pertaining to “discrimination” and how this affected his conduct as a security guard were relevant to the case, because in appellant’s testimony he attempted to explain his conduct toward both girls by testifying that they made him nervous and that he therefore sought to engage and “occupy” them. See Thomas v. State, 143 Md.App. 97, 111, 792 A.2d 368 (2002) (“Generally, evidence is relevant and admissible if it tends either to establish or disprove issues in the case.” (citing Snyder v. State, 361 Md. 580, 591, 762 A.2d 125 (2000))); Snyder, 361 Md. at 592, 762 A.2d 125 (“[T]he relevancy determination is not made in isolation. Instead, the test of relevance is whether, in conjunction with all other relevant evidence, the evidence tends to make the proposition asserted more or less probable.” (citing Spector v. State, 289 Md. 407, 434, 425 A.2d 197 (1981))). In short, the fact that the prosecution was attempting to clarify appellant’s own remarks made previously in the same trial distinguishes the testimony here from that in Eiler, in which the prosecution injected issues of racial prejudice by asking the defendant to testify about remarks made prior to his current trial.
Furthermore, we note that the testimony in the present case does not appear to be as racially charged as that in Eiler. In Eiler, the prosecution quoted extensively testimony from the defendant’s previous trial and repeated the defendant’s racial slurs. Therefore, the defendant’s racial prejudice was in
Therefore, while we caution against questioning similar to that at issue in this case, the evidence elicited here was relevant to appellant’s prior testimony and did not cause unfair prejudice. For these reasons, the admission of this evidence at trial was not an abuse of discretion.
IY.
Appellant’s final argument is in regard to the following question asked at voir dire:
[T]he State claims that the defendant, Mr. Khan, had sexual contact with two minors. Is there any member of the panel who, by reason of the nature of the charges, that is to say, by reason of what he’s alleged to have been, to have done, will be unable to listen fairly and impartially?
Appellant argues that the trial court erred because this question did not ask potential jurors whether the crime might arouse “strong feelings” causing bias against the defense. We disagree.
In reviewing a trial court’s voir dire rulings, we examine the record “as a whole for an abuse of discretion, that is, questioning that is not reasonably sufficient to test the jury for bias, partiality, or prejudice.” Stewart v. State, 399 Md. 146, 160, 923 A.2d 44 (2007) (citing White v. State, 374 Md. 232, 243, 821 A.2d 459 (2003)). “The scope of voir dire and the form of questions propounded rest firmly within the discretion of the trial judge.” Stewart, 399 Md. at 159, 923 A.2d 44 (citing Curtin v. State, 393 Md. 593, 603, 903 A.2d 922 (2006)). The primary purpose of voir dire is “to ensure a fair and impartial jury by determining the existence of cause for
Appellant cites State v. Thomas, 369 Md. 202, 798 A.2d 566 (2002), and Sweet v. State, 371 Md. 1, 806 A.2d 265 (2002), to argue that a trial court abuses its discretion when it denies a defendant’s request to include the words “strong feelings” in a voir dire question targeting juror bias from the nature of the crime alleged. We do not believe that such a literal reading of these cases is accurate. In both of these cases, as well as the more recent case State v. Shim, the Court of Appeals held that a question aimed at uncovering the bias of potential jurors based on the defendant’s alleged crimes must be asked if requested. In Shim, the court wrote: “we recognize today that the potential for bias exists in most crimes, and thus we will require voir dire questions which are targeted at uncovering these biases.” 418 Md. at 54, 12 A.3d 671. The court noted that a question targeted at biases related to the crime must be asked “regardless of the crime.” Id.
We believe that the voir dire question that was asked in the present case was sufficiently “targeted at uncovering these biases.” Id. Appellant’s contention is solely based on the absence of two words: “strong feelings.” We do not believe that, simply because the requested questions in Thomas, Sweet, and Shim happened to contain these two words, their presence was a necessa/ry part of the court’s holdings in those cases. In Thomas, on which appellant relies, the trial court had refused to ask a question targeting biases related to the crime, stating that he had covered the requested question through other questions asked during voir dire. In holding
When a required question is asked, and the objection is related to the form of the question asked, we will give great deference to the trial court. Stewart, 399 Md. at 159, 923 A.2d 44 (“The scope of voir dire and the form of questions propounded rest firmly within the discretion of the trial judge.” (citing Curtin, 393 Md. at 603, 903 A.2d 922)). The court in Shim was asked to determine whether the defense’s requested question targeting bias based on the alleged crime was too broad, as it contained the language “violent death,” rather than “murder” or “the criminal charges in this case.” The Shim court held that such a departure from the general question targeting bias based on the crime was acceptable, explaining as follows:
To hold differently ... would make voir dire an exercise in semantics and a minefield for criminal defendants and the State. We decline to make such fine distinctions or create more uncertainty. A proposed voir dire question need not be in perfect form, and the court is free to modify the proposed question as needed.
Shim, 418 Md. at 55, 12 A.3d 671 (citing Casey v. Roman Catholic Archbishop, 217 Md. 595, 606, 143 A.2d 627 (1958)).
To find reversible error in the failure to include “strong feelings” in the voir dire question before us would similarly be an exercise in mere semantics. Moreover, as the State persuasively argues, the question asked at voir dire was more favorable to the defendant, because it did not frame bias as defendant solely on “strong” feelings. As a broader question, it potentially excluded more jurors unfavorable to the defense,
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
. Appellant is not a native English speaker, and an interpreter was used to assist with some questions.
. In appellant’s brief, he states that the circuit court also denied improperly his later motion to reconsider the court’s reseating of this juror. However, the substance of appellant’s argument concerns the judge’s finding of pretext made during jury selection.
Even if appellant's argument that the court denied improperly his motion to reconsider were made in full, there was no error. Defense counsel, after jury selection, noted to the court that juror 95 stared at
. The federal circuits have split in their analyses of Batson challenges in which both race-based and race-neutral reasons have motivated peremptory strikes. Some circuits have adopted the "mixed-motive” test:
*570 [W]here both race-based and race-neutral reasons have motivated a challenged decision, a supplementary analysis applies. In these situations, the Court allows those accused of unlawful discrimination to prevail, despite clear evidence of racially discriminatory motivation, if they can show that the challenged decision would have been made even absent the impermissible motivation, or, put another way, that the discriminatory motivation was not a "but for” cause of the challenged decision.
Cook v. LaMarque, 593 F.3d 810, 814 (9th Cir. 2010) (quoting Kesser v. Cambra, 465 F.3d 351, 372 (9th Cir. 2006)). See also, e.g., Gattis v. Snyder, 278 F.3d 222, 232-35 (3d Cir. 2002); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996) (per curiam); Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir. 1995); United States v. Darden, 70 F.3d 1507, 1530-32 (8th Cir. 1995); Howard v. Senkowski, 986 F.2d 24, 27-30 (2d Cir. 1993).
Although the Supreme Court is aware of the "mixed-motives” test, it has not adopted a specific stance beyond the basic rule of law in Batson. In Snyder v. Louisiana, 552 U.S. 472, 485-86, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), the Court noted that it has held, in non-Batson scenarios:
Once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context.
Thus, the "substantial motivating factor” language from Batson remains the prevailing standard, and it does not require a specific causative analysis. See Cook, 593 F.3d at 814-15.
Although we are not the final authority on this matter, we would echo the Ninth Circuit Court of Appeals’ observation that the mixed-motives test presents severe conceptual problems. Id. at 814-15. The Supreme Court itself "alluded to the difficulty of determining on collateral review which of the prosecutor’s motives were ‘but for’ causes." Id. at 815 (citing Snyder, 552 U.S. at 485-86, 128 S.Ct. 1203).
More importantly, we doubt that a trial court could actually make such a subtle causal distinction in any given trial. The mixed-motives test applies by definition when "both race-based and race-neutral reasons have motivated a challenged decision.” Cook, 593 F.3d at 814 (emphases added). If equal protection is violated only when the challenger’s race-based reason was a but-for cause of the challenge, then the rae e-neutral reason for a challenge must have been an insufficient cause, standing alone (otherwise, the race-based reason could not be a causative factor). Thus, the entire mixed-motive analysis is premised upon the challenger’s race-neutral reason being a motivating factor, but somehow not motivating enough to cause the strike when the race-based reason is "subtracted” from the decision to challenge. As a practical matter, we cannot imagine how a trial court could make such a determination, and as a constitutional matter, we believe it is fair to disallow a strike where racial bias plays any part in the decision to strike a juror.
. Appellant cites Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), for the proposition that an appellate court must make a more extensive inquiry into a race- and gender-neutral explanation offered for a peremptory strike when a Batson ruling is contested. But Miller-El merely reaffirmed the holding in Batson that a challenger may rely on “all relevant circumstances” to raise an inference of purposeful discrimination, Miller-El, 545 U.S. at 240, 125 S.Ct. 2317 (quoting Batson, 476 U.S. at 96-97, 106 S.Ct. 1712); it does not require any additional inquiry beyond what was contemplated in Batson:
*572 "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging ... jurors” within an arguably targeted class. Id., at 97, 476 U.S. 79, 106 S.Ct. 1712. Although there may be "any number of bases on which a prosecutor reasonably [might] believe that it is desirable to strike a juror who is not excusable for cause ..., the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challeng[e].” Id., at 98, n. 20, 106 S.Ct. 1712 (internal quotation marks omitted). "The trial court then will have the duty to determine if the defendant has established purposeful discrimination.” Id., at 98, 106 S.Ct. 1712.
Miller-El, 545 U.S. at 239, 125 S.Ct. 2317. So while the trial court was free to consider additional facts, it was not required to do so, sua sponte. If appellant had more to offer by way of argument or evidence, he should have done so—or at least attempted to do so—at trial.
. Evidence was never presented regarding the details of the complaint, or to show that the incident in fact occurred.
. When deciding whether evidence of prior bad acts is admissible, a trial court must determine whether such evidence fits within an exception to Md. Rule 5-404(b), then decide whether such acts are established by clear and convincing evidence, and finally weigh the probative value of such evidence against any undue prejudice as a result of its admission. State v. Faulkner, 314 Md. 630, 634-35, 552 A.2d 896 (1989). While no deference is given to the trial court in the determination of the first of these three steps, an appellate court reviews the second step to determine if "the evidence was sufficient to support the trial judge’s finding,” and the third step is reviewed using an abuse of discretion standard. Id.
An attempt to apply this standard of review shows the flaw in appellant's argument that, because the State never proved that he had touched a customer, there was no clear and convincing evidence of the admitted evidence. The State did not inquire as to whether appellant had in fact previously touched customers inappropriately. Rather, the witnesses’ testimony was only that a complaint had been made, and it was elicited specifically to refute relevant evidence presented by the defense. Given that both appellant and his manager acknowledged the prior complaint had been made, there was nothing further to prove.
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