Andrews v. State
| Decision Date | 08 September 2005 |
| Docket Number | No. A05A1430.,A05A1430. |
| Citation | 620 S.E.2d 629,275 Ga. App. 426 |
| Parties | ANDREWS v. The STATE. |
| Court | Georgia Court of Appeals |
Carla J. Friend, Atlanta, for Appellant.
Gwendolyn Keyes Fleming, District Attorney, Robert M. Coker, Assistant District Attorney, for Appellee.
Ospen Andrews appeals from his aggravated stalking, burglary, aggravated assault, and false imprisonment convictions,1 contending that: (1) insufficient evidence supports his burglary, aggravated assault, and false imprisonment convictions; (2) the trial court erred by refusing additional voir dire questions; and (3) he received ineffective assistance of counsel. We affirm for the reasons set forth below.
On appeal, we must view the evidence
in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
(Citation and punctuation omitted.) Williams v. State, 217 Ga.App. 636, 638(3), 458 S.E.2d 671 (1995). Because this is a case in which the victim recanted at trial and the state proved its case through her inconsistent pre-trial statements, a detailed summary of the trial testimony follows.
Before the incident at issue in this appeal, the victim accused Andrews, her ex-boyfriend, of raping her in Fulton County. When she first reported the crime to the police, the victim was very afraid of Andrews and seemed visibly shaken as though she had been through a trauma. At the hospital, she reported that Andrews had kicked in the door of her apartment, punched her in the face, tied her up with a telephone cord, had intercourse with her, attempted to have anal intercourse and oral sex with her, and ejaculated on her face and forehead. Andrews then forced the victim to go with him for a ride. After the victim made a surreptitious phone call to police about her location, they apprehended Andrews. A doctor who examined the victim at the hospital testified that she had a cut lip, cuts around her ankle that appeared to be the impression of a phone cord, and seminal fluid on her face and around her hairline.
After Andrews' arrest, the victim moved to an apartment in DeKalb County. When Andrews was later released on bond for the Fulton County charges of kidnapping and rape, one of the conditions of his release was that he have no contact with the victim.
Less than one month after Andrews was released on bond, he called a friend of the victim, City of Atlanta Police Officer Jarvis Jackson, and told him that he had taken the victim to the hospital because she had fallen out of the third-floor window of her apartment while they were joking and playing around. Jackson drove to the hospital and saw the victim in the emergency room. The victim's eyes were swollen shut, her lips were swollen, and she had cuts and bruises on her face, arms, and legs.
Andrews had already left when Jackson arrived, and the victim told Jackson that she had jumped out of her apartment window because she was afraid of Andrews. The victim explained to Jackson that she had not been staying in her apartment because she was afraid, but went there to get a book. When she arrived, Andrews was waiting for her; he had kicked in the door of the apartment and then placed it so that it would appear normal. Andrews told her that he planned to take her to the basement of a friend's house and allow his friends "to do whatever they wanted to do with her" so that she would "understand how it felt to be in prison like a dog." When Andrews told her that the friends were on their way to pick her up, the victim jumped out the third floor window. Andrews then picked her up and took her to the hospital.
After the victim was released from the hospital, Jackson went with her to her apartment to meet with DeKalb County police. The police saw that her door had been kicked in and that her wood furniture had been slashed and scratched. The victim told police that Andrews had caused the damage.
A DeKalb County police officer testified that the victim told him that when she returned to the apartment and found Andrews, she used her pepper spray on him and tried to escape. When her escape effort failed, Andrews forced her into her bedroom and would not let her leave. After several hours, Andrews told her his friends were coming and that they planned to lock her in a basement for several months to teach her a lesson. When the victim tried to escape by climbing out of the third floor window, she fell.
The victim gave a signed, written statement to a DeKalb County detective in which she provided more details about her ordeal. She explained that when she arrived at her apartment, she discovered damage to her furniture and Andrews walked out of the bedroom. She tried to spray him with pepper spray, but he choked her from behind, resulting in her spraying them both. He took her to the bathroom where he flushed both of their skin with cold water and blocked the exit to the bathroom. He then told her to sit in the kitchen while he made dinner. He threatened to kill her if she screamed or tried to leave. When the victim felt sick as a result of the pepper spray, he called the hospital and received instructions to give her fresh air and a cold shower. After she showered under Andrews' supervision, she sat on the window sill in the bedroom. Andrews then told her his friends were coming with a gun and they planned to lock her in a basement for two months so she would know what it felt like to be in jail. He told her he planned to tie her up so that he could sleep until his friends arrived and denied her request for five more minutes of fresh air because he did not want her to yell out the window for help. When he got off the bed and moved toward her, she jumped out the window. He grabbed her shirt and she hung suspended in the air until her shirt ripped and she fell. He came outside and she tried to fight him off with a stick, but he picked her up and took her to the hospital.
The victim testified at trial that Andrews was her current boyfriend and that she was testifying only because she had been subpoenaed. She admitted that they broke up before the Fulton County incident, but denied that he kicked the door in, hit her in the face, tied her up, raped or kidnapped her when she lived in Fulton County. She admitted calling Jackson and telling him that Andrews had raped her, but claimed she made it up to force Andrews to get help for his severe depression. She claimed seminal fluid got on her face because the phone rang while Andrews was ejaculating during sex and he pulled out to answer the phone and semen got on her face when he hopped up onto the bed.
With regard to the incident in DeKalb County, the victim claimed that Andrews was living with her there, that the mace went off accidentally, that they called the hospital for advice, that she sat on the bedroom window sill to get some air and accidentally fell out of it, and that Andrews did not threaten her in any way. She explained that she gave a written statement to the contrary because she was angry at Andrews for calling the police and her mother about her fall, which meant that she would have to live with her parents.
The victim acknowledged that there was an open air front porch on her apartment where she could have obtained fresh air. She acknowledged that Andrews was her first love and that he was mentally, but not physically abusive. She acknowledged writing to the police that she "fit the typical profile of an in-denial female in an abusive relationship," but claimed she only wrote this to satisfy her mother and therapist so that she could return to Atlanta and be near Andrews.
The victim acknowledged allowing a detective to hear tape recorded messages left by Andrews on her cell phone as part of her effort to get him some help for his depression. In these messages, Andrews called the victim a whore and a bi* * *, threatened to beat the f* * * out of her, threatened to kill her, and told her that she better run or hide because he was going to whup her a* *. Many of these messages were left on the day on which the victim reported she had been raped.
Andrews testified and denied committing the offenses with which he was charged. He acknowledged leaving the messages on her cell phone, but explained them as a joke. He admitted that he fled the state two months after the DeKalb County incident because he was scared and did not want to be arrested. He also admitted scratching her furniture because he "didn't have nothing to do" and "cut it just to be doing something."
1. In related enumerations of error, Andrews contends insufficient evidence supports his convictions because the victim changed her story at trial and stated that she had made up her allegations against Andrews. It is well settled, however, that "[t]he jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence." (Citation omitted.) Strong v. State, 265 Ga.App. 257, 258, 593 S.E.2d 719 (2004). This is true even in cases in which the victim recants her previous accusation against the defendant. See Woodford v. State, 240 Ga.App. 875, 876, 525 S.E.2d 408 (1999); Kirby v. State, 187 Ga.App. 88, 89(1), 369 S.E.2d 274 (1988). The reason for this rule is that a victim's prior inconsistent statements are admissible as substantive evidence for the jury's consideration. Kirby, supra. Thus, a "jury [is] authorized to believe the victim's pre-trial statements rather than her in-court disavowal." Lee v. State, 250 Ga.App. 110, 111(1), 550 S.E.2d 696 (2001). In this case, a rational trier of fact could have found that the victim recanted her pre-trial outcry statements based on her self-described status as his current girlfriend, the abusive nature of their relationship, or even out of fear of retaliation from Andrews. Sufficient evidence,...
To continue reading
Request your trial
-
RG4 Holding Co. v. Dennis Eng'g Grp., LLC
...one imposing confidence." RFT Mgmt. Co., LLC v. Tinsley & Adams, LLP, 732 S.E.2d 166, 173 (2012) (citing Davis v. Greenwood Sch. Dist., 620 S.E.2d 629 (2005)).60. To succeed on a claim for breach of fiduciary duty, the plaintiff must prove (1) the existence of a duty, (2) a breach of that d......
-
Gray v. State
...an investigator testify as the state's first witness.25 Judgment affirmed. SMITH, P.J., and ADAMS, J., concur. 1. Andrews v. State, 275 Ga.App. 426, 620 S.E.2d 629 (2005). 2. Id. 3. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accord Kates v. State, 269 Ga.App. 8......
-
Pierre v. State
...§ 24–6–613(b).9 (Punctuation omitted.) Miller v. State, 300 Ga.App. 652, 655, 686 S.E.2d 302 (2009), quoting Andrews v. State, 275 Ga.App. 426, 429(1), 620 S.E.2d 629 (2005).10 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).11 (Punctuation omitted.) Williams v. State, 326 Ga.App. 665, ......
-
Holloman v. State
..."This is true even in cases in which the victim recants her previous accusation against the defendant." Andrews v. State , 275 Ga. App. 426, 429 (1), 620 S.E.2d 629 (2005).The evidence here was sufficient to sustain the jury's verdict of guilty on the charge of family violence battery for i......