Ashley v. State

• Decision Date: 08 March 2017
• Docket Number: A14A1848
• Citation: 340 Ga.App. 539,798 S.E.2d 235
• Parties: ASHLEY v. The STATE.
• Court: Georgia Court of Appeals

340 Ga.App. 539

798 S.E.2d 235

ASHLEY

v.The STATE.

A14A1848

Court of Appeals of Georgia.

March 8, 2017

Cynthia Wright Harrison, for Appellant.

Emily Kathleen Richardson, Brian Keith Fortner, James David McDade, for Appellee.

McFadden, Presiding Judge.

Thad Lee Ashley was convicted of kidnapping, criminal attempt to kidnap, entering an automobile, and criminal trespass. In our opinion in Ashley v. State , 331 Ga.App. 794, 771 S.E.2d 462 (2015), we reversed his convictions but held that, because the evidence was sufficient, he could be retried. In Division 1 of our opinion we held that the evidence was sufficient to support the convictions. Id. at 794-796 (1), 771 S.E.2d 462. In Division 2 of our opinion we held that the trial court improperly allowed the state to present character evidence against Ashley and that this error required reversal. Id. at 797-800 (2), 771 S.E.2d 462. Given that disposition, in Division 3 of our opinion we declined to address Ashley's remaining claims of error. Id. at 800 (3), 771 S.E.2d 462.

The Supreme Court of Georgia granted certiorari to review Division 2 of our opinion, and in State v. Ashley , 299 Ga. 450, 788 S.E.2d 796 (2016), the Court "reverse[d] [our] judgment as to Division 2 of the majority opinion [ ] and ... remand[ed] the case for consideration of the other enumerations raised by Ashley." Id. at 458 (3), 788 S.E.2d 796.

Because the Supreme Court neither addressed nor considered Division 1 of our opinion in Ashley v. State , supra, 331 Ga.App. 794, 771 S.E.2d 462, and that Division is not inconsistent with the Supreme Court's own opinion, Division 1 "become[s] binding upon the return of the remittitur." Shadix v. Carroll County , 274 Ga. 560, 563 (1), 554 S.E.2d 465 (2001). We vacate Division 2 of our earlier opinion and in place of that Division we adopt as our own the Supreme Court's opinion in State v. Ashley , supra, 299 Ga. 450, 788 S.E.2d 796. Finally, we vacate Division 3 of our earlier opinion and in place of that Division we address Ashley's other enumerations.

As detailed below, none of Ashley's other enumerations require reversal. The holding in Division 1 of our earlier opinion that the evidence was sufficient to support Ashley's convictions disposes of Ashley's claims that the trial court erred in failing to grant his directed verdict and that the verdict is contrary to the evidence. Ashley argues that the trial court made an improper comment on the evidence, but the trial court did not express or intimate an opinion on whether any fact had been proved. Ashley argues that the trial court improperly charged the jury on kidnapping, but he did not object to the charge at trial and has not shown plain error. Ashley argues that the trial court erred by not granting a mistrial following the admission of recordings of Ashley's custodial statements or ordering those statements redacted, but he affirmatively stated at trial that he had no objection to the admission of this evidence. Ashley challenges the constitutionality of his sentence, but he did not raise this challenge at the first available opportunity. Finally, Ashley argues that he received ineffective assistance of counsel, but he has not shown that his trial counsel performed deficiently. For these reasons, we affirm his convictions.

1. Facts.

The earlier appellate decisions set forth in detail the evidence in and procedural posture of this case. See State v. Ashley , supra, 299 Ga. at 450-454 (1), 788 S.E.2d 796 ; Ashley v. State , supra, 331 Ga.App. 794-796 (1), 771 S.E.2d 462. In summary, the evidence viewed in the light most favorable to the verdict showed that Ashley approached a seven-year-old girl and a two-year-old girl, who were inside their family's minivan in front of their residence. He grabbed the older girl by the wrist and pulled her from the vehicle. After the older girl broke away from him, Ashley reached inside the vehicle toward the younger girl. The girls' mother yelled at him and he fled. Ashley contended that, while intoxicated, he had mistaken the minivan for a vehicle belonging to his father, who lived in the same neighborhood as the victims. The state presented similar transaction evidence¹ of Ashley's disturbing behavior around other children at the neighborhood swimming pool.

2. Failure to grant directed verdict; verdict contrary to the evidence.

Ashley argues that the trial court erred in failing to grant his motion for directed verdict. He also argues that the verdict was contrary to the evidence, an argument he raised in his motion for new trial, which the trial court denied.

[W]hether an appellant is asking [an appellate] court to review a trial court's refusal to grant a new trial on the general grounds or its refusal to grant a motion for directed verdict, this court can only review the case under the standard espoused in Jackson v. Virginia , [443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ], to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.

Lewis v. State , 296 Ga. 259, 261-262 (3), 765 S.E.2d 911 (2014) (citation and punctuation omitted). Consequently, our analysis of the sufficiency of the evidence in Division 1 of our earlier decision in Ashley v. State , supra, 331 Ga.App. at 794-796 (1), 771 S.E.2d 462, which was not affected by the Supreme Court's decision in State v. Ashley , supra, 299 Ga. 450, 788 S.E.2d 796, resolves both claims of error in favor of the state.

3. Trial court's alleged improper comment.

Ashley argues that the trial court made an improper comment on the evidence in violation of OCGA § 17-8-57 while instructing the jury on similar transaction evidence. The version of that statute in effect at the time of Ashley's 2012 trial provided:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or the Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or the Court of Appeals may lawfully give.

Former OCGA § 17-8-57. (The current version of OCGA § 17-8-57 also prohibits the court from expressing or intimating an opinion on whether a fact has been proved but precludes appellate review of that error, beyond plain error review, if there is no timely objection to the error.)

Ashley argues that the following statement by the trial court violated OCGA § 17-8-57 :

And my expectation is that, if you'll recall, [the prosecutor] made an opening statement about things going on in the swimming pool, and Mr. Ashley allegedly staring at little girls in the pool, and that sort of thing; and I'm assuming that this evidence relates to what [the prosecutor] described in his opening statement that he would prove. And so the law requires me to tell you that you have to limit your consideration of that solely to the issue of, what was Mr. Ashley's intent at the time the alleged incident at the van occurred. Is everyone clear on that?

This statement notified the jury that the prosecutor was about to present certain evidence mentioned in his opening statement; it did not express or intimate the trial court's opinion as to whether any fact had been or had not been proved. "There is a wide difference between saying that a particular thing has been proved and saying that there has [or will be] testimony on that thing." Slaton v. State , 224 Ga.App. 422, 423 (3) (b), 480 S.E.2d 872 (1997) (citation and punctuation omitted). See Foster v. State , 290 Ga. 599, 600-601, 723 S.E.2d 663 (2012) (trial court's statement in pre-evidentiary charge that state would "introduce evidence in support of the charges contained in the indictment" did not address credibility of witnesses or any fact at issue and did not violate OCGA § 17-8-57 ). Moreover, immediately before making the statement, the trial court told the jury that, "by giving this instruction, the Court in no way suggests to you that the defendant has or has not committed any other acts, nor whether such acts, if committed, prove anything." We find no violation of OCGA § 17-8-57. See Bryant v. State , 226 Ga.App. 135, 138 (3) (b), 486 S.E.2d 374 (1997) (trial court's jury charge on similar transactions did not violate OCGA § 17-8-57 where it was "obvious from the court's charge that the jury was instructed it could itself determine whether the alleged incident took place").

4. Jury charge on kidnapping.

Ashley argues that the trial court improperly charged the jury on the offense of kidnapping because the trial court did not instruct the jury on the principle, stated in OCGA § 16-5-40 (b) (1), that "slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense." Although Ashley raised the issue in his motion for new trial, he did not object to the charge at trial. Consequently, under OCGA § 17-8-58 (b) we apply plain error review to this claim. State v. Kelly , 290 Ga. 29, 32 (1), 718 S.E.2d 232 (2011).

Ashley cannot meet the first requirement for plain error, that there be "an error or defect ... that has not been intentionally relinquished or abandoned, i. e., affirmatively waived, by the appellant." Kelly , supra, 290 Ga. at 33 (2) (a), 718 S.E.2d 232 (citation omitted). The record shows that Ashley intentionally relinquished any claim of error related to the charge on kidnapping by inducing the alleged error. At the charge conference the trial court stated his intent to instruct the jury on the entire statutory definition on kidnapping, including the language that Ashley now argues was erroneously omitted, but Ashley objected and specifically asked the trial court not to include that language in the...