Thrift v. State

FINAL COPY

                  S20A1182. THRIFT v. THE STATE.


      MCMILLIAN, Justice.

      Craig Lester Thrift was convicted of felony murder in

connection with the death of Terry Rouse.1 On appeal, Thrift

contests the sufficiency of the evidence to support his conviction; the

denial of his motion for new trial on the general grounds; the denial

of five motions for mistrial; the admission of certain evidence

presented by the State; the exclusion of certain evidence offered by

the defense; and the restriction of his attorney’s cross-examination

of one of the State’s witnesses. Additionally, Thrift asserts that he



      1 Rouse disappeared on May 11, 1991, and Thrift was indicted for his

murder by a Ware County grand jury almost 21 years later, on April 3, 2012.
The indictment charged Thrift with one count of malice murder and one count
of felony murder based on aggravated assault. Thrift was tried from April 14
to 17, 2014, and the jury acquitted him of malice murder but found him guilty
of felony murder. The trial court sentenced him to life in prison. Thrift filed a
motion for new trial on April 23, 2014, and amended that motion on January
26, 2017, and again on July 6, 2017. The trial court denied Thrift’s motion as
amended on February 7, 2019, and Thrift timely filed a notice of appeal. The
case subsequently was docketed to the August 2020 term of this Court and
submitted for a decision on the briefs.
is entitled to a new trial under a cumulative error analysis. We

affirm for the reasons set forth below.

     1. Thrift asserts that the evidence at trial was insufficient to

support his conviction for felony murder. In evaluating whether the

evidence at trial was sufficient as a matter of due process under the

Fourteenth Amendment of the United States Constitution, this

Court considers whether a rational trier of fact could have found the

defendant guilty beyond a reasonable doubt. See Jackson v.

Virginia, 

 (III) (B) (

, 61 LE2d 560)

(1979). In performing this evaluation, we view the evidence in the

light most favorable to the verdict, leaving “to the jury the resolution

of conflicts or inconsistencies in the evidence, credibility of

witnesses, and reasonable inferences to be made from the evidence.”

Rodriguez v. State, 

 (1) (

) (2020)

(citation and punctuation omitted).

     Viewed in that light, the evidence at trial showed that Rouse

was Thrift’s cousin and best friend. In 1991, the two men worked

together pouring concrete for Thrift’s father’s company. Rouse

                                   2
customarily picked Thrift up at Thrift’s house, and they rode to work

together. In May 1991, Thrift was married to Rhonda Thrift, and

Rouse was having an affair with her. On the afternoon of Friday,

May 10, 1991, Rouse and Rhonda met up at the home of a friend.

That night, Rhonda and the friend went to a party along with Thrift.

When they arrived at the party, Rouse was already there. The

Thrifts and the friend left the party about 25 to 30 minutes after

arriving and headed to the Thrifts’ home, making a couple of stops

along the way. The party broke up early on the morning of Saturday,

May 11. At around 4:00 that morning, Rouse, who had stayed at the

party, was seen sleeping in his car in front of the house where the

party took place, but his car was gone by 7:00 a.m.

     Thrift, Rouse, and two other men were scheduled to pour

concrete at a jobsite at 7:00 a.m. that Saturday morning. After

attending a different party, the two other men drove to the Thrifts’

house sometime in the early morning hours and slept in their car in

the Thrifts’ front yard so they would not be late to the job site. The

Thrifts’ babysitter, who slept on the Thrifts’ couch that night,

                                  3
reported hearing Rhonda and Thrift arguing during the night; being

awakened later by a loud noise, perhaps the sound of a horn or a

loud muffler; and seeing Rouse there when she woke up between

5:00 and 6:00 a.m. Sometime before 7:00 a.m., the two men who were

sleeping in their car were awakened by either Thrift or Rhonda, and

they left with Thrift, arriving at the job site by 7:00 a.m. Rouse never

showed up to work that day.

     At around 2:00 p.m. that day, Rouse’s car was discovered

outside one of the entrances to the Okefenokee Swamp. The car’s

windows were rolled down, the ignition switch was in the on

position, the battery was dead, and the car was out of gas. Rouse’s

family never saw or heard from him again. In the 20 years following

Rouse’s disappearance, Thrift told a number of people on numerous

occasions that he had killed Rouse by beating him and/or shooting

him because Rouse was having an affair with Rhonda. Thrift said he

then disposed of Rouse’s body in the swamp, sometimes describing

Rouse as “gator bait.”

     Thrift contends that this and other evidence at trial was

                                   4
insufficient to support the verdict because, although Rouse has not

been seen by his family since May 11, 1991, his body has never been

found, no crime scene was ever discovered to show that Rouse died

as the result of any criminal action, and other evidence showed that

Rouse disappeared of his own volition.2 Thrift argues that even

giving the appropriate deference to the jury, no rational factfinder

could find that Rouse was even dead, much less that he died as the

result of criminal conduct, or that it was Thrift who killed him.

      “It is of course true that the burden was upon the State to prove

the corpus delicti, and to show also that the defendant was the

perpetrator of the alleged offense. Both of these elements, however,

could be shown by circumstantial as well as direct evidence.” White

v. State, 

 (1) (

) (1993) (citation and



      2  One of Rouse’s co-workers testified that the week before Rouse
disappeared, Rouse said that he was about to leave and that no one would be
able to find him. Rouse explained that he had an upcoming court date with the
potential for jail time and he owed people a lot of money. Additionally, on the
afternoon before he disappeared, Rouse asked Rhonda never to forget him.
Three witnesses testified that they knew Rouse and had seen him after his
disappearance. The three witnesses each reported seeing Rouse, or someone
who looked like him, after May 11, 1991, but none of those individuals actually
spoke with the person they identified as Rouse.
                                      5
punctuation omitted). See also Richardson v. State, 

(1) (

) (2003) (proof beyond a reasonable doubt of the

corpus delicti, which means “the body of the crime,” may be

established by indirect as well as direct evidence). Moreover, “[t]o

establish the corpus delicti in a homicide prosecution, the State

must prove that a death occurred, but there is no requirement that

a dead body be produced.” Richardson, 

 (1).

     Here, Thrift stated on a number of occasions to a number of

different witnesses that he killed Rouse by beating him, shooting

him, or both, and then disposed of his body in the swamp, because

Rouse was having an affair with Rhonda. Each of these statements

“made not a mere incriminating admission, but a confession, which

is direct evidence of his guilt, and this is not, therefore, a purely

circumstantial case.” Robinson v. State, 

 (1) (a) (

) (2020) (citation and punctuation omitted) (defendant’s

statement to jailhouse informant that he killed the victim was a

confession and thus direct evidence). See also Muckle v. State, 

 (1) (b) (

) (2017) (defendant’s admission to

                                  6
victim’s brother regarding the main facts of felony murder charge

constituted a confession).

     Thrift’s confessions were also corroborated by evidence that

Rouse was having an affair with Rhonda; Rouse and Rhonda met up

the day before Rouse’s disappearance; Thrift and his wife got into an

argument in the early morning hours on the day Rouse disappeared;

and Rouse and Thrift did not ride to work together, although this

was their usual routine. Evidence at trial also showed that Thrift

knew about the affair and even believed that his daughter was

actually Rouse’s biological child. Rouse was seen at the Thrift house

on the morning of his disappearance, and Rouse’s car was later

discovered abandoned outside the entrance to the swamp where

Thrift said he dumped Rouse’s body. The State introduced evidence

that Rouse had close family connections, yet, uncharacteristically,

he had failed to contact his family or appear at any family events for

more than 20 years. This and other evidence at trial was sufficient

to authorize a rational trier of fact to find Thrift guilty of felony

murder beyond a reasonable doubt. See Hinton v. State, 

,

                                  7
814 (1) (

) (2006) (evidence sufficient to support murder

conviction where defendant made various statements implicating

himself in victim’s murder and the disposal of her body, which was

never found, and other evidence corroborated those statements);

Richardson, 

 (1) (evidence sufficient to support

murder conviction in absence of body where defendant confessed to

victim’s murder and other evidence corroborated that confession);

McIlwain v. State, 

 (1) (

) (1994)

(defendant’s confession along with other evidence sufficient to

support murder conviction although victim’s body never found).

     2. Thrift further contends that the trial court erred in denying

his motion for new trial on the general grounds because the verdict

was against the weight of the evidence and the principles of equity

and was contrary to the evidence. See OCGA §§ 5-5-20 and 5-5-21.

However, “the decision to grant or refuse to grant a new trial on the

general grounds is vested solely in the trial court.” Bundel v. State,

 (1) (

) (2020) (emphasis omitted). And

“[w]hen a defendant appeals the trial court’s denial of a motion for

                                  8
new trial, an appellate court does not review the merits of the

general grounds.” 

 (emphasis in original). See also Wilcox v. State,

, 446 (2) (

) (2020) (declining to review

denial of motion for new trial on the general grounds). Instead, this

Court’s review of a trial court’s ruling on the general grounds is

limited to sufficiency of the evidence under Jackson v. Virginia. See

Lewis v. State, 

 (3) (

) (2014). Because

we have already determined that the evidence was sufficient to

support Thrift’s felony murder conviction, we conclude that this

enumeration is without merit.

     3. Thrift also argues that the trial court erred by denying his

motion for mistrial after the State violated an order by the trial court

and improperly placed Thrift’s character at issue by introducing

testimony from a State’s witness that Thrift previously threatened

him with a gun.

     A trial court’s denial of a motion for mistrial based on the
     improper admission of bad character evidence is reviewed
     for abuse of discretion by examining factors and
     circumstances, including the nature of the statement, the
     other evidence in the case, and the action taken by the

                                   9
     court and counsel concerning the impropriety.

Graves v. State, 

 (3) (

) (2016) (citation

and punctuation omitted).

     Before trial, Thrift filed a motion in limine to exclude evidence

regarding other alleged crimes pursuant to OCGA § 24-4-404 (b),

although the motion did not identify any specific evidence it sought

to exclude. Following an abbreviated pretrial motion hearing,3 the

trial court issued an order stating that the State represented that it

did not intend to introduce evidence of other alleged crimes, that

Thrift’s motion thus need not be heard, and that the hearing was

vacated. At trial, during the direct examination of one of Thrift’s

friends, who was called as a witness for the State, the prosecutor

asked whether Thrift had talked with the friend about Rouse’s

disappearance. After the friend said that he and Thrift had spoken

about it, the prosecutor asked where this conversation occurred.


     3 The trial court’s order indicates that the hearing on this motion was

held on March 18, 2014, but the transcript of that hearing shows that it was
adjourned a short time after it began, when the trial court announced that
“there’s a combination of things going on right now that make it necessary to
adjourn these proceedings for today, matters beyond all our control.”
                                     10
Thrift’s friend replied that Thrift had a gun in his hand, although

he never pointed it at his friend, and said, “I’ll kill you like I killed

[Rouse] if you tell anybody I f****d a n****r.”

     Thrift’s attorney objected, and during the subsequent

discussion outside the jury’s presence, he moved for a mistrial on the

ground that the State had put Thrift’s character at issue by

introducing evidence of an unrelated criminal act — e.g., terroristic

threats “at the very least.” The trial court sustained the objection to

the evidence, but denied the mistrial. With the court’s permission,

defense counsel renewed his motion for a mistrial outside the

presence of the jury, rather than wait until after the curative

instruction was given, and the trial court again denied the motion.

When the jury returned, the trial court instructed the jurors to

disregard any testimony regarding a threat by Thrift or his

possession of a gun. Thrift did not raise a specific objection to the

trial court’s curative instruction.

     (a) Thrift argues that the State intentionally introduced this

testimony in contradiction of its earlier representation that it would

                                      11
not introduce evidence of other crimes. He further asserts that this

testimony was prejudicial as it was the only evidence purporting to

show that Thrift had committed a violent act and it was particularly

harmful given the “circumstantial nature” of the State’s case. Thrift

asserts that no curative instruction could overcome the prejudice

that this testimony caused.

     However, the record does not support Thrift’s assertion that

the State intentionally sought to introduce this evidence as a prior

criminal act. It is apparent that the witness’s answer regarding

what Thrift said was nonresponsive to the prosecutor’s question

about where his conversation with Thrift occurred. The trial court

took immediate corrective action in response to the witness’s

testimony, instructing the jury to disregard any mention of a threat

or a gun, and Thrift’s trial counsel did not object to that instruction.

Under these circumstances, we conclude that the trial court did not

abuse its discretion in denying Thrift’s motion for mistrial. See, e.g.,

Graves, 

 (3) (no abuse of discretion in denying mistrial

based on nonresponsive answer to prosecutor’s question); Walker v.

                                  12
State, 

 (2) (

) (2007) (“[A] nonresponsive

answer that impacts negatively on a defendant’s character does not

improperly place his character in issue.” (citation and punctuation

omitted)); Hansley v. State, 

 (3) (

) (1996)

(same).

     (b) Thrift further asserts that the trial court erred by denying

his motion for a mistrial after the prosecutor referenced the friend’s

inadmissible testimony during closing argument.

     During the State’s closing, the prosecutor stated, “The only

person you’ve heard testimony about that was dangerous with a gun

was Craig Thrift.” Thrift’s attorney moved for a mistrial arguing

that this statement was improper because it was based on the

excluded testimony that Thrift had threatened his friend with a gun.

The prosecutor countered, however, that the argument was based on

testimony from another witness, one of Thrift’s co-workers, who

testified that Thrift said on a number of occasions that he shot Rouse

before throwing his body in the swamp.

     It is well settled that “a prosecutor is granted wide latitude in

                                 13
the conduct of closing argument, the bounds of which are in the trial

court’s discretion; within the scope of such latitude is the

prosecutor’s ability to argue reasonable inferences from the

evidence[.]” Styles v. State, 

 (4) (

)

(2020) (citation and punctuation omitted). The prosecutor’s

argument was a reasonable inference drawn not only from the co-

worker’s testimony, but also from the testimony of two other

witnesses who each testified that Thrift said he shot and killed

Rouse. Therefore, the trial court did not abuse its discretion in

denying Thrift’s motion for a mistrial on this ground.4

      4. Thrift next contends that the trial court erred by denying

Thrift’s motion for mistrial after the prosecutor placed Thrift’s

character in issue in violation of the motion in limine order by

stating in closing argument: “You heard from Tonya Searcy, another



      4 Thrift argues on appeal that the State had the burden to make sure

that its argument could not be misinterpreted as referring to the stricken
testimony, but it failed to do so. However, Thrift did not raise this argument
at trial; thus, he has waived the issue for appellate review. See Corley v. State,

 (5) (

) (2020); Gates v. State, 

(4) (

) (2016) (alleged errors arising from remarks during closing
argument not raised below are not subject to plain error review).
                                       14
person in Camden County, who was a known associate of [Thrift],

knew him well. . . . And she testified to his intimidation and that she

was scared of him and that he had admitted that he had killed his

cousin.” Thrift’s attorney moved for a mistrial on the ground that

the State was trying to introduce evidence of terroristic threats or

was arguing an extrinsic criminal act. The trial court denied the

motion.

     The trial court properly exercised its discretion in denying

Thrift’s motion for mistrial on the ground asserted. The prosecutor

did not state that Thrift had threatened the witness but only

asserted that the witness found Thrift intimidating. Moreover,

although Thrift notes, and the State concedes, that Searcy never

testified that she was intimidated by or scared of Thrift and, in fact,

said that she continued to socialize with him even after he admitted

to killing Rouse, Thrift’s sister-in-law, who testified right after

Searcy, told the jury that Thrift “intimidate[d]” the sister-in-law.

Also, Thrift’s wife Robyn Thrift5 testified that Thrift told her about


     5 Thrift married Robyn after divorcing Rhonda.

                                   15
Rouse’s murder “to keep [her] in line, to keep [her] afraid.”

Therefore, even though the prosecutor misidentified the source of

the evidence,6 Thrift’s counsel did not object to the misidentification,

and this improper identification likely had little impact on the

verdict because the argument that Thrift had intimidated a witness

was based on evidence admitted at trial. See Styles, 

(4). Therefore, the trial court did not abuse its discretion in denying

a mistrial on this ground.

        5. Thrift also argues that the trial court erred by denying his

counsel’s repeated and continuing objections to the State’s

introduction of irrelevant testimony regarding personal matters

involving Rouse’s family in an attempt to incite the passions of the

jury.

        “Decisions regarding relevance are committed to the sound



        6 Thrift also asserts on appeal that the prosecutor’s argument was not

based on evidence at trial because Searcy never testified to being scared or
intimidated by Thrift, but rather the argument was part of the State’s pattern
of improperly prejudicing the jury, by painting Thrift as a violent person who
threatened and intimidated others. However, Thrift did not object on this basis
at trial, and it is therefore waived for appellate review. See Corley, 

 (5).
                                       16
discretion of the trial court.” Smith v. State, 

 (2) (b)

(

) (2016).

     To evaluate relevancy, this Court relies on OCGA § 24-4-
     401 (“Rule 401”), which defines “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.”

Lofton v. State, 

, 355 (2) (b) (

) (2020) (citation

and punctuation omitted). See also Ragan v. State, 

(3) (

) (2016). “The standard for relevant evidence is a

‘liberal one,’ and such evidence is generally admissible even if it has

only slight probative value.” McClain v. State, 

 (3) (

) (2018).

     However, relevant evidence may be excluded under
     OCGA § 24-4-403 (“Rule 403”) “if its probative value is
     substantially outweighed by the danger of unfair
     prejudice, confusion of the issues, or misleading the jury
     or by considerations of undue delay, waste of time, or
     needless presentation of cumulative evidence.” The major
     function of Rule 403 is to exclude matter of scant or
     cumulative probative force, dragged in by the heels for the
     sake of its prejudicial effect.

Lofton, 309 Ga. at 355 (2) (b) (citation and punctuation omitted).


                                  17
Therefore, we have concluded that “the exclusion of relevant

evidence under Rule 403 is an extraordinary remedy that should be

used only sparingly.” Pike v. State, 

 (3) (

) (2018) (citation and punctuation omitted).

     As previously noted, the State had the burden of showing that

“[Rouse] is dead, that [his] death was caused by violence or the direct

criminal agency of another human being, and that [Thrift] caused

the death in the manner charged.” Sheffield v. State, 

(1) (

) (2006) (citation and punctuation omitted). In the

absence of a body, the State was forced to present other evidence to

carry this burden.

     At trial, the State introduced the testimony of Rouse’s brother,

Shannon, that Rouse had close ties to his large extended family, who

all lived in the same area as Rouse at the time of his disappearance.

Although Rouse spoke with his family regularly and customarily

attended family events, his family had not seen or heard from him

since May 11, 1991. Thrift’s attorney objected on the ground that

Shannon’s testimony was irrelevant, prejudicial, and intended “to

                                  18
substitute sympathy for evidence” after the prosecutor asked

Shannon about his mother and other family members who passed

away in the years since Rouse’s disappearance and whether Rouse

had visited them during their extended illnesses or attended their

funerals. The trial court overruled Thrift’s objections but later

granted Thrift a continuing objection to this line of testimony.7

      We conclude that Shannon’s testimony regarding Rouse’s 20-

year absence; his lack of communication with his family, with whom

he had previously shared close relations; and his failure to attend

family events he usually attended in the past had the tendency to

make the fact of Rouse’s death (as opposed to his voluntary




      7 Thrift contends on appeal that the evidence of all the intervening family

events was an impermissible form of victim impact evidence introduced into
the merits of the trial. However, he never objected on this basis at trial and he
does not argue, and has not carried his burden of demonstrating, plain error
on this ground on appeal. See Denson v. State, 

 (2) (

) (2019) (“To establish plain error, [the appellant] must point to an
error that was not affirmatively waived, the error must have been clear and
not open to reasonable dispute, the error must have affected his substantial
rights, and the error must have seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” (citation and punctuation omitted));
Reed v. State, 

 (2) (

) (2018) (no reversible error
where appellant fails to show even one of the mandatory prongs of the plain
error test).
                                       19
disappearance, as the defense contended) more probable, and thus

it was relevant within the meaning of Rule 401 to a fact that was of

consequence to the case. Additionally, although Shannon testified to

a number of family events that occurred over the 20-year period for

which Rouse was absent, his testimony merely recited the events

and did not belabor them or address the emotional impact of Rouse’s

absence on the family. Under these circumstances, we discern no

abuse of discretion in the trial court’s determination that the

probative value of Shannon’s testimony was not outweighed by the

danger of unfair prejudice. Cf. Benson v. State, 

(1) (

) (2014) (concluding under former Evidence Code

that “in cases in which a victim’s body has not been found, evidence

that the victim was a person with personal relationships that

uncharacteristically seemed to have been abandoned supports a

finding that the victim has died” (citation and punctuation omitted));

Hinton, 

 (4) (same).

     6. Thrift also asserts that the trial court erred by allowing the

State to introduce irrelevant, prejudicial evidence that constituted a

                                 20
comment on his exercise of his constitutional right to remain silent

and by denying Thrift’s motion for a mistrial after the State elicited

such evidence. We discern no abuse of discretion in the trial court’s

admission of the evidence and denial of a mistrial because the

disputed evidence was not a comment on Thrift’s invocation of the

right to remain silent. See Jones v. State, 

 (3) (

) (2019) (whether to grant a mistrial based on improper

comment on defendant’s invocation of the right to remain silent is

within the trial court’s discretion, which an appellate court will not

disturb “unless there is a showing that a mistrial is essential to the

preservation of the right to a fair trial” (citation and punctuation

omitted)).

     Before trial testimony began, Thrift’s attorney requested a

hearing on the voluntariness of a statement Thrift made to a former

chief deputy at the Ware County Sheriff’s Office. After hearing

argument and receiving evidence as to the admissibility of the

statement, the trial court found that Thrift was not in custody when

he asked the deputy if Rouse’s body had been found and ruled that

                                 21
the State would be allowed to introduce evidence of Thrift’s question

about the body. The trial court further instructed the prosecutor,

“you may go so far as to say that the conversation ended at that

point, but you cannot say that he refused to talk after that or that

he invoked his right to silence.” The trial court then ruled that the

probative value of this evidence outweighed the prejudicial impact.

     At trial, the deputy testified that he asked Thrift to come to his

office   in   connection   with   his   investigation   into   Rouse’s

disappearance, and Thrift did so. The prosecutor then asked,

“During your conversation with Mr. Thrift . . . , did you request to

have additional conversation with him?” After the deputy replied, “I

did,” the prosecutor began to ask, “What was his response to —”

when Thrift’s attorney asked to approach the bench. Thrift’s counsel

then moved for a mistrial, stating “he’s getting into whether my

client refused to have further statements . . . contrary to the Court’s

order.” The trial court denied the mistrial and reiterated its earlier

ruling, making sure the deputy understood that ruling. When the

examination continued, the prosecutor asked the deputy what

                                  22
Thrift’s response was to his question, and the deputy replied “his

response to me was did I have a body and I said no.” The prosecutor

then asked, “And that was the end of the conversation?” The deputy

replied, “Yes, sir, that ended it.” Thrift’s counsel renewed his motion

for mistrial, which was denied.

     Contrary to Thrift’s argument, this testimony complied with

the trial court’s initial ruling, which properly excluded any comment

about Thrift’s invocation of his rights. Because the State did not

elicit testimony that Thrift refused to answer any of the deputy’s

questions, nor was there any testimony as to who ended the

conversation, the deputy’s testimony did not implicate Thrift’s

invocation of his right to remain silent. For the same reason, there

is no merit to Thrift’s argument that any probative value in the

deputy’s testimony was outweighed by the prejudice resulting from

the deputy’s testimony that the conversation ended after Thrift

asked a question about the body. Therefore, the trial court did not

abuse its discretion in admitting the evidence and denying Thrift’s

motion for mistrial on this ground.

                                  23
      7. Thrift contends that the trial court erred in denying his

motion for mistrial after the State improperly asked a law

enforcement officer whether another witness opined as to whether

Thrift was capable of killing another person.

      After the witness in question testified for the State, the defense

presented testimony from a captain with the Ware County Sheriff’s

Department to impeach the witness. On cross-examination, the

prosecutor asked the captain, “Did you ask [the witness] is [Thrift]

capable of killing somebody and she said yes?” Thrift’s attorney

objected and moved for a mistrial. The trial court directed the

captain not to answer the question. During the subsequent bench

conference, Thrift’s attorney objected on the ground that “that’s just

ridiculous, absurd opinion evidence. It has nothing to do with

anything. It’s a totally improper question.”8 He then asked for the

jury to be instructed to forget the question and for the prosecutor to


      8 Although Thrift argues on appeal that the question was improper
because it placed his character at issue, his counsel failed to object on this basis
at trial, and he does not argue, and has not carried his burden of
demonstrating, plain error on this ground on appeal. See Reed, 

(2).
                                        24
be rebuked. After hearing argument, the trial court sustained the

objection, but denied the motion for mistrial. Back in front of the

jury, the trial court sustained the objection and asked the prosecutor

if he had any more questions. The prosecutor replied in the negative,

and the witness was excused. Therefore, the witness was never

allowed to answer the prosecutor’s question. The trial court did not

issue a curative instruction, nor did it rebuke the prosecutor.

     Although the State asked a question that could have elicited

improper testimony, Thrift’s counsel immediately objected, and the

trial court sustained counsel’s objection before the witness could

answer. Pretermitting whether this unanswered question amounted

to an improper prejudicial statement under OCGA § 17-8-75,9 we

find that any error by the trial court in failing to rebuke the

prosecutor or to give a curative instruction as required under that


     9 OCGA § 17-8-75 provides:

           Where counsel in the hearing of the jury make statements of
     prejudicial matters which are not in evidence, it is the duty of the
     court to interpose and prevent the same. On objection made, the
     court shall also rebuke the counsel and by all needful and proper
     instructions to the jury endeavor to remove the improper
     impression from their minds; or, in his discretion, he may order a
     mistrial if the prosecuting attorney is the offender.
                                     25
statute was harmless because a statement that one witness believed

Thrift was capable of killing somebody added little to the evidence

from a number of other witnesses that Thrift admitted on multiple

occasions that he had killed Rouse. See Davenport v. State, 

 (3) (

) (2020); Anglin v. State, 

(2) (

) (2017) (“[T]he erroneous admission of hearsay is

harmless   where    substantial,    cumulative,   legally   admissible

evidence of the same fact is introduced.”).

     8. Thrift also argues that the trial court erred by restricting his

counsel’s cross-examination of a State’s witness concerning

statements Rouse made prior to his disappearance that he was going

to disappear because he owed money for drugs.

     During the cross-examination of one of the State’s witnesses,

who was a friend of both Rouse and Thrift, Thrift’s attorney elicited

testimony that Rouse told the witness approximately four to five

times during the week before May 11, 1991 that he was going to go

missing and that nobody would ever find him. When defense counsel

asked if Rouse said why he was leaving town, the State objected and

                                   26
asked to approach. The prosecutor stated that he anticipated that

Thrift’s attorney was trying to bring in improper character evidence

against the victim. Rouse’s expressed reasons for leaving town were

to avoid going to jail at a court date the following Monday and

because he owed some people money for drugs. The defense made a

proffer that the purpose for the testimony was to explain Rouse’s

stated motive for disappearing, not for the truth of the matter

stated. The trial court allowed the witness to testify that Rouse told

him Rouse was leaving because Rouse faced possible jail time at a

court date the following Monday and because Rouse owed a lot of

money, but the trial court excluded any reference to the fact that the

money was owed for drugs.

     We see no abuse of discretion. “Like most questions about the

admissibility of evidence, the scope of cross-examination is

committed in the first instance to the sound discretion of the trial

court, and we review a limitation of cross-examination only for an

abuse of that discretion.” Lucas v. State, 

 (2) (

) (2018). Here, the trial court acted within its discretion in

                                  27
allowing Thrift to present evidence that Rouse disappeared

voluntarily because he did not want to serve jail time and because

he owed a lot of money, without further impugning Rouse’s

character by presenting evidence that the debt in question was for

drugs. See OCGA §§ 24-4-404 and 24-4-405.10

     9. Thrift further asserts that the trial court erred by denying

his motions under OCGA § 24-8-80711 (“Rule 807”) to introduce


     10 Although    Thrift also argues that the State opened the door to the
evidence that Rouse owed money for drugs when it introduced Shannon’s
testimony regarding what a good son and grandson Rouse had been, he did not
make this argument at trial, nor does Thrift argue, or carry his burden of
demonstrating, plain error on this ground on appeal. See Reed, 

(2).
      11 OCGA § 24-8-807 provides:

             A statement not specifically covered by any law but having
      equivalent circumstantial guarantees of trustworthiness shall not
      be excluded by the hearsay rule, if the court determines that:
             (1) The statement is offered as evidence of a material fact;
             (2) The statement is more probative on the point for which it
      is offered than any other evidence which the proponent can procure
      through reasonable efforts; and
             (3) The general purposes of the rules of evidence and the
      interests of justice will best be served by admission of the
      statement into evidence.
      However, a statement may not be admitted under this Code section
      unless the proponent of it makes known to the adverse party,
      sufficiently in advance of the trial or hearing to provide the adverse
      party with a fair opportunity to prepare to meet it, the proponent’s
      intention to offer the statement and the particulars of it, including
      the name and address of the declarant.

                                     28
evidence of out-of-court statements given to law enforcement by two

witnesses Thrift asserted were unavailable for trial. Thrift sought to

introduce a 1991 out-of-court statement by one witness regarding a

conversation she had after Rouse’s disappearance with an individual

she later identified as Rouse and a 1997 statement given by the

other witness about a conversation she had with an individual who

said that he and another man killed Rouse and disposed of his body.

     Rule 807 sets out the residual hearsay exception, which is

     to be used very rarely and only in exceptional
     circumstances, and only when there exists certain
     exceptional guarantees of trustworthiness and high
     degrees of probativeness and necessity. . . . A trial court’s
     decision to admit [or exclude] hearsay evidence under
     Rule 807 is reviewed for an abuse of discretion. This Court
     is particularly hesitant to overturn a trial court’s
     admissibility ruling under the residual hearsay exception
     absent a definite and firm conviction that the court made
     a clear error of judgment in the conclusion it reached
     based upon a weighing of the relevant factors.

Davenport, 

 (3) (citations and punctuation omitted).

See also State v. Hamilton, 

 (4) (

)

(2020) (trial court’s decision to admit hearsay under Rule 807

reviewed for an abuse of discretion, considering the totality of the

                                  29
circumstances). The requisite guarantees of trustworthiness

     must be equivalent to cross-examined former testimony,
     statements under a belief of impending death, statements
     against interest, and statements of personal or family
     history. These categories of hearsay have attributes of
     trustworthiness not possessed by the general run of
     hearsay statements that tip the balance in favor of
     introducing the information if the declarant is
     unavailable to testify. And they are all considered
     sufficiently trustworthy not because of the credibility of
     the witness reporting them in court, but because of the
     circumstances under which they were originally made.

Jacobs v. State, 

 (2) (

) (2018) (citations

and punctuation omitted). Moreover, Rule 807 “has a built-in

requirement of necessity, and its probativeness requirement

necessitates, by its plain terms, some determination by the court

that the statement at issue is ‘more probative on the point for which

it is offered than any other evidence which the proponent can

procure through reasonable efforts.’” Hamilton, 

 (4)

(b) (citation omitted) (quoting OCGA § 24-8-807 (2)).

     (a) Prior to trial, Thrift filed a notice of intent under Rule 807

to introduce evidence of the first witness’s unsworn, out-of-court



                                  30
statement,12 given to law enforcement on May 15, 1991, that

between 9:30 and 10:30 p.m. on May 11, 1991, when the witness was

working at a convenience store in Florida, she spoke to a young,

male customer. The young man said that he had worked nearby

pouring concrete foundations for the apartments under construction

down the road from the store. The witness told police that she later

recognized the man as Rouse after seeing a missing person poster in

the store window. The witness did not know Rouse, and thus she did

not know he was a concrete worker. The trial court conducted a

pretrial hearing on the admissibility of the witness’s statement and

later heard argument on the issue during trial before ruling that the

evidence was not admissible.

     We find no abuse of discretion in the trial court’s decision to

exclude this witness’s statement. First, Thrift failed to show the

requisite guarantees of trustworthiness to support the statement’s

admission. The witness’s statement was given to, and put in written



     12    Thrift’s counsel asserted that he had been unable to locate this
witness.
                                     31
form by, law enforcement. In that statement, the transcribing officer

noted that law enforcement had investigated the witness’s

information—including by showing Rouse’s picture to workers at the

apartment construction site, where no one recognized Rouse—but

had been unable to corroborate it. Although Thrift points to other

circumstances—the witness’s apparent lack of interest in the

matter, the temporal proximity of the statement to Rouse’s

disappearance, and the statement that the man said he had poured

concrete despite the witness’s apparent unfamiliarity with Rouse’s

work history—to argue that the statement was trustworthy, we

conclude that, considering the totality of the circumstances, the trial

court was authorized to find that these factors alone did not provide

sufficient guarantees of trustworthiness to support the statement’s

admission.

     (b) Thrift also filed a notice of intent under Rule 807 to

introduce the statement of a second witness, after introducing her

obituary to show she was deceased. This witness made her

statement in a 1997 interview with law enforcement, in which she

                                  32
said that on one occasion, when she and her then-husband were at

her house drinking beer with a friend, the friend stated that he and

another man killed Rouse “and fed him to the gators.” During the

pretrial argument     addressing this    matter,   Thrift’s   counsel

represented that he intended to call the friend who made this claim

as a witness at trial not for the purpose of showing the truth of the

statement but only to show that someone else made wild statements

about Rouse. Thrift’s counsel said that he only intended to introduce

the witness’s statement if the friend denied telling the witness that

he killed Rouse. The trial court reserved ruling on the admissibility

of the witness’s statement until after the friend testified. After

further discussion at trial regarding the admission of this evidence,

the trial court ruled, without explanation, that the witness’s

statement was inadmissible.

     Thrift points to no facts or circumstances surrounding this

witness’s statement that he contends provide guarantees of its

trustworthiness, and he failed to demonstrate at trial that the

witness’s statement was more probative than other evidence that he

                                 33
could produce at trial for the stated purpose of showing that

someone other than Thrift made a drunken boast about killing

Rouse.13 Accordingly, we discern no abuse of discretion by the trial

court in excluding this witness’s statement.

     10. Thrift argues that the trial court’s errors, when considered

collectively, require a new trial because the errors allowed the State

to introduce improper evidence to bolster its case while also

preventing Thrift’s ability to introduce relevant and admissible

evidence in his defense. See State v. Lane, 

 (1) (

) (2020) (adopting the cumulative error doctrine). See also

United States v. Benjamin, 

 (II) (F) (11th Cir.

2020) (“The cumulative error doctrine provides that an aggregation

of non-reversible errors . . . can yield a denial of the constitutional

right to a fair trial, which calls for reversal.” (citations and



     13  When the trial court revisited the issue during the trial, an
unidentified person stated on the record that he believed that the friend was
dead, but the person said that he did not have anything to prove the friend’s
death. Thrift’s counsel made no further argument supporting the admission of
the witness’s statement based on the apparent unavailability of the friend’s
testimony and asserted no basis other than Rule 807 for the statement’s
admission. The defense never called the friend as a witness.
                                     34
punctuation omitted)). However, in order to establish a claim of

cumulative error, a defendant must show, inter alia, that “at least

two errors were committed in the course of the trial.” Lane, 

 (4) (citation and punctuation omitted). Because we have found

only one potential error at trial on the grounds asserted by Thrift,

which error we determined to be harmless, Thrift’s claim of

cumulative error fails.

     Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Bethel, and Ellington, JJ., concur. Warren, J., not
participating.



                    Decided December 7, 2020.

     Murder. Ware Superior Court. Before Judge Gillis.
     Timothy C. Head, Jr., for appellant.
     George E. Barnhill, District Attorney, Michelle C. McIntire,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Elizabeth Rosenwasser,
Assistant Attorney General, for appellee.




                                35