Austin v. State

• Decision Date: 06 June 2007
• Docket Number: No. A07A0507.,A07A0507.
• Parties: AUSTIN v. The STATE.
• Court: Georgia Court of Appeals

286 Ga. App. 149

648 S.E.2d 414

AUSTIN v. The STATE.

No. A07A0507.

Court of Appeals of Georgia.

June 6, 2007.

Reconsideration denied June 26, 2007.

Shon Robert Austin, pro se.

Kelly R. Burke, Dist. Atty., Jason Edward Ashford, Timothy Michael Marlow, Asst. Dist. Attys., Perry, for Appellee.

ELLINGTON, Judge.

A Houston County jury found Shon Robert Austin guilty of false imprisonment, OCGA § 16-5-41; kidnapping, OCGA § 16-5-40; and battery, OCGA § 16-5-23.1. Austin appeals pro se from the order denying his motion for new trial, challenging, among other things, the sufficiency of the evidence, the admission of certain evidence, the conduct of the prosecutor, and the effectiveness of his trial counsel. Finding no error, we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record reveals the following relevant evidence. On July 31, 2005, a police officer arrested Austin on domestic violence charges. Austin had beaten his 18-year-old, mentally disabled, live-in girlfriend, bruising her nose. As a result of the charges, the court issued a "no contact" bond, directing Austin to stay away "absolutely, directly or indirectly, by person and telephone, from the person, home and job of [the victim]."

During the late evening of August 29, 2005, Austin spoke on the telephone with the victim's landlord's daughter. During the lengthy conversation, the daughter discovered that Austin was still living with the victim despite the no-contact bond. Austin complained to the daughter that he was upset that the victim had been going out on dates and staying out late and that she was not appreciative of the clothes he bought her. But he said he could not leave because "the money was too good." Austin had been acting as the victim's "payee," receiving and cashing her disability income checks. During the conversation, Austin called the victim his "slave," said he feared losing control of her, and said he was going to "teach her a lesson" by beating her with an extension cord. The daughter, concerned that Austin would physically harm the victim, called 911 and told the police that Austin, who was subject to a "no contact" bond, had threatened to beat the victim with an extension cord.

During the morning of August 30, 2005, several police officers responded to the victim's home on an "endangered person" call. The officers understood, based on the call, that Austin had threatened the victim and that he was forbidden by the court order from being with her. They also believed, based on reports from neighbors and the presence of Austin's pickup truck in the driveway, that Austin and the victim were both inside the house.

The officers knocked at the front door, but, when no one answered, they entered through the rear door with a key provided by the landlord. Once inside the home, the police found Austin and the victim hiding in a closet. Austin was clothed, but the victim was nude. The victim was upset and confused, her lip was bruised, and her wrists were red. The police arrested Austin for violating the no-contact bond.

The victim told the police, and also testified at trial, that Austin took away her clothing, punched her in the face, and handcuffed her to the bathroom door all night. She described how, when the police arrived, Austin dragged her from the bathroom and threw her into the closet and held her there against her will. When she tried to cry out, Austin held his hand over her mouth and told her to be quiet.

Based on the evidence of the victim's statements and injuries, the police obtained a search warrant for the home, and when they searched it, they found two pairs of handcuffs. The State also introduced evidence that, while the defendant was in jail on these charges, he wrote the victim a letter, stating: "[T]ell them that you [are] my girlfriend and you don't want to press charges and that you will sign an affidavit saying you was just upset with me and that I never put my hands on you."

1. In several enumerations of error, Austin challenges the sufficiency of the evidence to support his convictions.² When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 318-319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. Id. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832, 546 S.E.2d 524 (2001).

Austin was convicted of false imprisonment, kidnapping, and battery. The essential elements of the crime of false imprisonment are: violating the personal liberty of another, by arresting, confining or detaining a person, without legal authority. OCGA § 16-5-41(a); Laredo v. State, 253 Ga.App. 155, 157(1), 558 S.E.2d 742 (2002). Here, the victim testified³ that she was held against her will, handcuffed all night long, and then shoved into a closet and held there, also against her will. The evidence was sufficient to authorize the jury to find that the defendant "deprived the victim of personal liberty by confining and detaining her without legal authority to do so." (Citation and footnote omitted.) Laredo v. State, 253 Ga. App. at 157(1), 558 S.E.2d 742.

OCGA § 16-5-40(a) provides that a "person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will." Under Georgia law, "[t]he distance which a kidnapper abducts his victim is without legal significance[.] Only the slightest movement of the victim is required to constitute the necessary element of asportation." (Footnotes omitted.) Boykin v. State, 264 Ga.App. 836, 839(1), 592 S.E.2d 426 (2003). In this case, the victim testified that Austin unchained her from the bathroom door and then dragged her to the closet and held her there against her will. This evidence is sufficient for the jury to find, beyond a reasonable doubt, that Austin committed the offense of kidnapping. See Giddens v. State, 190 Ga.App. 723, 725(3), 380 S.E.2d 274 (1989) (evidence sufficient to support kidnapping when defendant pushed the victim, who was standing in front of a car door, into the driver's seat).

OCGA § 16-5-23.1(a) provides that a person "commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another." Visible bodily harm is defined as "bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts." OCGA § 16-5-23.1(b). Here, the victim testified that Austin punched her in the face and handcuffed her to a door. She and the police testified as to her visible injuries, her bruised and swollen lips and her reddened wrists. Further, the State introduced photographic evidence of the victim's injuries. Given this evidence, the jury was authorized to find, beyond a reasonable doubt, that Austin committed the offense of battery. See Kuykendoll v. State, 278 Ga.App. 369, 370(1), 629 S.E.2d 32 (2006).

2. Austin challenges the sufficiency of the affidavits supporting his arrest warrants for the offenses of kidnapping and false imprisonment, implying that there was not enough evidence for a judge to determine independently that a crime had occurred. Pretermitting whether the arrest warrants were valid, a new trial would not be required because the sanction for an unconstitutional arrest is the exclusion of the evidence obtained as a result of that arrest. The sanction is not the suppression of the prosecution. Lackey v. State, 246 Ga. 331, 333(2), 271 S.E.2d 478 (1980); Ricks v. State, 204 Ga. App. 441, 442(1), 419 S.E.2d 517 (1992). Austin has not identified any evidence obtained as a result of his arrest under these warrants.

3. Austin contends his trial attorney was ineffective because he failed to challenge the admission of certain evidence, to file motions, to make objections, or to introduce allegedly exculpatory evidence. As we have held, to prevail on this claim, an appellant must prove that counsel's performance was deficient and that, but for the deficient performance, there is a reasonable likelihood that the jury would have returned a different verdict. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Furthermore, there is a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy." (Citations and punctuation omitted.) Clay v. State, 232 Ga. App. 656, 657(1), 503 S.E.2d 560 (1998). "As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel." (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365(4), 541 S.E.2d 369 (2001). Finally, in reviewing a trial court's determination of a claim of ineffective assistance of counsel, we defer to the court's factual findings, which are upheld unless clearly erroneous; we review de novo the court's legal conclusions. Bales v. State, 277 Ga. 713, 715(2), 594 S.E.2d 644 (2004).

(a) Austin contends the prosecutor made an improper remark during his opening statement when he said: "A meal ticket and a slave, that's . . . exactly how [Austin] felt about the...