Butler v. State

• Decision Date: 13 March 2020
• Docket Number: A19A1708
• Citation: 841 S.E.2d 162,354 Ga.App. 473
• Parties: BUTLER v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 473

841 S.E.2d 162

BUTLER

v.The STATE.

A19A1708

Court of Appeals of Georgia.

March 13, 2020

Cara Clark, for Appellant.

Kenneth W. Mauldin, District Attorney, James V. Chafin, Brian V. Patterson, Assistant District Attorneys, for appellee.

Doyle, Presiding Judge.

Following a jury trial, William Maurice Butler was convicted of aggravated assault,¹ aggravated battery,² aggravated stalking,³ possession of a knife during the commission of a felony,⁴ and family violence battery.⁵He appeals the denial of his motion for new trial, arguing that: (1) the evidence was insufficient to support his convictions for family violence battery and aggravated stalking; (2) trial counsel was ineffective for failing to object to the introduction of certain evidence; (3)the trial court erred when instructing the jury on evidence of prior difficulties; and (4)the trial court erred by sentencing him as a recidivist because the State failed to prove that the prior convictions were felonies under Georgia law.For the reasons that follow, we affirm the convictions, vacate the sentences, and remand the case for resentencing.

Viewed in favor of the verdict,⁶ the record shows that some time in 2014, V. W. met Butler in a liquor store in Athens-Clarke County, and the two began dating.V. W. and Butler lived in the same neighborhood, and according to V. W., they lived together.The two dated for approximately a year and a half, during which time they sometimes fought.

On March 6, 2015, V. W. called the police when Butler and her son fought over payment of a cable bill.On the same day, V. W. called 911 again after Butler hit her in the head with his fist, causing two knots.

Butler was charged with family violence battery, and on March 13, 2015, he was ordered as a special condition of his bond issued by the magistrate court to: have no "harassing, intimidating, threatening, provoking, or violent contact with [V. W.]"; not go to her residence, listing her address; and stay away from her person, home, or any other place where she was present.V. W. later tried to obtain dismissal of the charges against Butler arising from the March 6, 2015 incident.

On March 22, 2015, V. W. called police because she and Butler "were arguing."The officer who arrived at V. W.’s apartment found Butler in a bedroom; V. W. was not present.⁷Butler admitted that V. W. had been there with him, and he agreed to gather his belongings and leave.When the officer learned about the March 13, 2015 no-contact order, he obtained a warrant for Butler for violating a family violence order.

On April 25, 2015, V. W. and Butler spent time together at her mother's home.The two argued when another man arrived, and Butler accused her of "messing with" the other man.⁸Ten minutes after Butler left, telling V. W., "you think I'm playing with you," V. W. walked to the liquor store.V. W. entered the store, shaking, and said she needed to call the police because someone was after her.Shortly thereafter, Butler entered the store, pushed a female employee out of the way, followed V. W. behind the counter, and repeatedly stabbed her with a knife.V. W. was able to run outside when an employee grabbed a bat in an effort to stop Butler.Butler pursued her and attempted to stab her again, a witness unsuccessfully attempted to restrain him, and Butler eventually fled.V. W. was taken to the emergency room, where she was treated for a fractured collarbone and multiple lacerations to her upper torso, some of which resulted in permanent scars.

Butler was charged with criminal attempt to commit a murder, aggravated assault, aggravated battery, aggravated stalking, three counts of second degree burglary, three counts of possession of a knife during the commission of a felony, terroristic threats, and family violence battery.At trial, V. W. testified about the April 25, 2015 attack by Butler, but claimed to be unable to recall details of the prior incidents with him.She did concede, however, that she and Butler spent time together after the March 6, 2015 incident, despite knowing that he was prohibited from having contact with her, and she testified that she sometimes called the police in an effort to get him to stop arguing with her.Multiple eyewitnesses testified about Butler stabbing V. W., the surveillance tape from the liquor store was played for the jury, and police officers testified about the 911 calls and interaction with Butler and V. W. on March 6, 2015, and March 22, 2015.

The trial court directed a verdict of acquittal as to the three counts of burglary and terroristic threats.At the conclusion of the trial, the jury found Butler not guilty of attempted murder and one of the counts of possession of a knife during the commission of a felony, but found him guilty of aggravated assault, aggravated battery, aggravated stalking, two counts of possessing a knife during the commission of a felony, and family violence battery.Butler was sentenced as a recidivist pursuant to OCGA § 17-10-7 (c) to serve 35 years without parole with the first 30 in confinement.The trial court denied Butler's subsequent motion for new trial, and this appeal followed.

1.Butler contends that the evidence was insufficient to support his convictions for family violence battery and aggravated stalking.We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.⁹

(a)Family violence battery ."A person commits the offense of battery when he ... intentionally causes substantial physical harm or visible bodily harm to another."¹⁰"If the offense of battery is committed between household members, it shall constitute the offense of family violence battery[.]"¹¹The statute defines "household member" as "past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household."¹²

Here, the State alleged in the indictment that Butler and V. W. "were formerly living in the same household."Butler contends that the State failed to prove that he lived with V. W.We disagree.During her testimony, the State asked V. W. whether she and Butler lived together, and V. W. replied, "Yeah."¹³Construing the evidence in favor of the jury's verdict, as we are required to do, her affirmative testimony that they lived together is sufficient to support a finding that they were "persons living or formerly living in the same household."¹⁴

(b)Aggravated stalking .OCGA § 16-5-91 (a) provides in relevant part:

A person commits the offense of aggravated stalking when such person, in violation of a ... condition of pretrial release ... in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

Butler contends that the State failed to prove that the no-contact order issued by the court as a condition of his pretrial release for the charges arising from his March 6, 2015 arrest was still in effect on April 25, 2015.We disagree.The no-contact order was entered on March 13, 2015.Although V. W. testified that she tried to get the March 6, 2015 charges dropped, Butler pleaded guilty to the March 6, 2015 charges on June 4, 2015.This evidence, construed in favor of the verdict, is sufficient to support the jury's finding that the no-contact order was still in effect on April 25, 2015.¹⁵

2.Butler contends that trial counsel was ineffective for failing to object to the introduction of the March 13, 2015 no-contact bond order and his subsequent guilty pleas to violation of a criminal family violence order and family violence battery arising from the March 6, 2015 incident, arguing that the order and pleas were invalid because there was no evidence that he resided with V. W. on March 6, 2015.We find no basis for reversal.

To prevail on his ineffective assistance claim, [Butler] must prove both that his counsel's performance was professionally deficient and that, but for the unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different.To prove deficient performance, [Butler] must show that his lawyer performed at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms.

This is no easy showing, as the law recognizes a "strong presumption" that counsel performed reasonably, and [Butler] bears the burden of overcoming this presumption.To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not.In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.

To prove prejudice, [Butler] must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.A reasonable probability is a probability sufficient to undermine confidence in the outcome.If [Butler] fails to satisfy either part of the Strickland test, we need not address the other part.¹⁶

Pretermitting whether Butler's attempt to collaterally attack the no-contact order and the guilty pleas is proper, as we concluded in Division 1, there was sufficient evidence — V. W.’s testimony — that she and Butler lived...