Bray v. State

• Citation: 294 Ga. App. 562,669 S.E.2d 509
• Decision Date: 14 November 2008
• Docket Number: No. A08A1349.,A08A1349.
• Parties: BRAY v. The STATE.
• Court: United States Court of Appeals (Georgia)

669 S.E.2d 509

294 Ga. App. 562

BRAY v. The STATE.

No. A08A1349.

Court of Appeals of Georgia.

November 14, 2008.

Sharon Lee Hopkins, Augusta, for appellant.

Daniel J. Porter, Dist. Atty., Jodi Lynn Harter, Richard Allen Vandever, Asst. Dist. Atty., for appellee.

BERNES, Judge.

A jury convicted John Anthony Bray of aggravated stalking and burglary. On appeal, Bray argues that the evidence was insufficient to sustain his conviction and that his trial counsel rendered ineffective assistance. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict to determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt. Kennedy v. State, 279 Ga.App. 415, 631 S.E.2d 462 (2006). We do not weigh the evidence or assess witness credibility, a task which lies exclusively within the province of the jury. Id.

So viewed, the evidence adduced at trial showed that at approximately 1:30 a.m. on the night in question, after drinking in a bar for nearly eight hours, Bray entered uninvited into the residence of his ex-wife. After kicking open the bedroom door where his ex-wife was asleep with her boyfriend, Bray laid across the victims' bodies, grabbed both of their throats, and threatened that, "If I ever catch you [(the boyfriend)] in this house again you're a dead man." Bray's conduct directly violated the terms of a special condition of bond that had been issued in a previous case, which required that he "stay away, absolutely, directly or indirectly" from his ex-wife.¹

1. This evidence was sufficient to sustain Bray's conviction for both aggravated stalking and burglary. See OCGA §§ 16-5-91(a) ("A person commits the offense of aggravated stalking when such person, in violation of a [condition of] bond² . . . contacts another person at or about a place . . . without the consent of the other person for the purpose of harassing and intimidating the other person."); 16-7-1(a) ("A person commits the offense of burglary when, without authority and with the intent to commit a felony . . . therein, he enters or remains within the dwelling house of another."); Williams v. State, 293 Ga.App. 193, 194(1), 666 S.E.2d 703 (2008) (affirming a burglary conviction based upon the defendant's entry into the victim's home, without authority, with the intent to commit an aggravated stalking). Although Bray testified that he and his ex-wife had spoken earlier in the day and she had invited him to come over and have "an intimate relation" with him, the jury clearly rejected his version of events. "A jury is authorized to believe or disbelieve all or any part of the testimony of witnesses and it serves as the arbiter of conflicts in the evidence before it." (Citation and punctuation omitted.) Bilow v. State, 279 Ga.App. 509, 511-512(1), 631 S.E.2d 743 (2006).

2. Bray next argues that his trial counsel rendered ineffective assistance because she failed (a) to admit Bray's cell phone records from the night in question; and (b) to object to an officer's in-court identification of Bray. In order to establish a claim for ineffective assistance of counsel, Bray must prove both that his counsel's performance was deficient and that the deficiency prejudiced his defense. Williams, 293 Ga.App. at 196(3), 666 S.E.2d 703. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Prejudice must be established by showing that a reasonable probability exists that the result of the trial would have been different but for the deficiency." (Citation and punctuation omitted.) Williams, 293 Ga.App. at 197(3), 666 S.E.2d 703.

(a) Bray contends that the phone records should have been admitted because they would have reflected a call between himself and his ex-wife earlier in the day, thereby supporting his claim that she had invited him over on the night in question. Both Bray and his ex-wife, however, testified that they had indeed spoken on...