Campbell v. State

• Decision Date: 29 April 2021
• Docket Number: A21A0376
• Court: Georgia Court of Appeals
• Parties: CAMPBELL v. The STATE.

359 Ga.App. 391

858 S.E.2d 83

CAMPBELL

v.The STATE.

A21A0376

Court of Appeals of Georgia.

April 29, 2021

Millet & Key, Kayci Nicole Timmons, for Appellant.

Ryan R. Leonard, District Attorney, Aimee F. Sobhani, Assistant District Attorney, for Appellee.

McFadden, Chief Judge.

After a jury trial, Darius Rashun Campbell was convicted of first-degree home invasion ( OCGA § 16-7-5 ), aggravated assault ( OCGA § 16-5-21 ), and possession of a firearm by a convicted felon ( OCGA § 16-11-131 ). On appeal, he challenges the sufficiency of the evidence, but the evidence authorized the jury to find him guilty of the offenses. He argues that the trial court erred in failing, sua sponte, to strike a juror for cause, but he waived that claim of error. He argues that the trial court erred in admitting other acts evidence under OCGA § 24-4-404 (b), but the trial court did not abuse his discretion in this ruling. He argues that the trial court erred in failing to instruct the jury on lesser included offenses as to three of the offenses with which he was charged, but the evidence did not authorize those charges. He argues that the trial court improperly commented on the evidence, but the comment did not violate OCGA § 17-8-57. Finally, he argues that his trial counsel rendered ineffective assistance in several respects, but he has not shown both the deficient performance and prejudice required for this claim. So we affirm.

1. Sufficiency of the evidence.

"On appeal from a criminal conviction, the appellate court views the evidence in the light most favorable to the verdict, and [the] appellant no longer enjoys the presumption of innocence." Walker v. State , 348 Ga. App. 273 (1), 821 (S.E.2d 567) (2018) (citation and punctuation omitted). "We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Rowland v. State , 349 Ga. App. 650 (1), 825 S.E.2d 231 (2019) (citation and punctuation omitted).

So viewed, the evidence shows that on the morning of November 30, 2017, Campbell, a convicted felon, banged on the door of an occupied residence and then forced his way inside while carrying an AR-15 rifle, which he began to raise in the direction of the three persons inside. One of those persons then shot Campbell several times. Campbell fled but was apprehended nearby.

Campbell challenges the sufficiency of the evidence supporting his convictions for first-degree home invasion, aggravated assault against the three persons inside the residence, and possession of a firearm by a convicted felon, but the only argument he makes in support of this challenge is that the evidence of his guilt was contradictory or inconclusive. This argument does not address sufficiency.

It goes to the strength and credibility of the evidence, which were matters for the jury to resolve. Rowland , 349 Ga. App. 650 (1), 825 S.E.2d 231. The evidence authorized the jury to find Campbell guilty of the crimes for which he was convicted.

2. Trial court's failure to strike a juror for cause.

Campbell argues that the trial court erred in failing to strike a juror for cause. But, after the juror was questioned in voir dire, Campbell's trial counsel did not challenge him for cause, so this claim of error is not preserved for appellate review. See Sewell v. State , 302 Ga. App. 151, 154 (2), 690 S.E.2d 634 (2010). This claim of error is not subject to plain error review. See generally Miller v. State , 309 Ga. 549, 552 (2), 847 S.E.2d 344 (2020) (describing the limited types of claims that are subject to plain error review).

3. Other acts evidence.

Campbell argues that the trial court erred in permitting the introduction of other acts evidence under OCGA § 24-4-404 (b) ("Rule 404 (b)"). As our Supreme Court has explained the applicable standard:

In order to be admissible under Rule 404 (b), evidence of an accused's other acts must be (1) relevant to some issue other than character; (2) admissible under OCGA § 24-4-403 ("Rule 403"), in that its probative value is not substantially outweighed by the danger of unfair prejudice; and (3) sufficient to permit the jury to conclude by a preponderance of the evidence that the accused actually committed the other act. A trial court's decision to admit evidence under Rule 404 (b) will be disturbed only if it constitutes a clear abuse of discretion.

Harrison v. State , 310 Ga. 862, 867 (3), 855 S.E.2d 546 (2021) (citations omitted). We find no abuse of discretion here.

The other acts evidence at issue concerned an incident that occurred on November 13, 2017, two weeks before the events at issue in this case. The other-acts witness testified that Campbell came to a hotel room that was serving as the witness's home, knocked on her partially open door, then pushed his way partially into the room and began yelling at one of the other occupants, demanding money that Campbell claimed that person owed him. Campbell was irate and made the witness uncomfortable. At one point, Campbell stepped outside of the room, and the other acts witness attempted to close the door; Campbell then kicked the door, and the witness opened it again and shoved Campbell. The witness testified that, at that point, Campbell "pulled a gun[,] pushed his way the rest of the way into the room and shoved [her] on the bed." Campbell pointed his gun at the witness's face and said, "don't make me use this thing on you." The other people in the room tried to calm Campbell, and the front desk of the hotel called 911; Campbell left shortly thereafter.

The trial court ruled that the state could introduce this evidence to show identity and intent and to rebut any justification defense presented by Campbell. The trial court gave the jury a limiting instruction to this effect both at the time the other acts witness testified and at the close of trial.

(a) Relevance to an issue other than character.

As to the first prong of the Rule 404 (b) analysis, intent was a material issue at trial, both because Campbell entered a plea of not guilty, see Harrison , 310 Ga. at 867 (3), 855 S.E.2d 546 (holding that not guilty plea to burglary charge "made intent a material issue [that] the [s]tate may prove ... by qualifying Rule 404 (b) evidence absent affirmative steps by the defendant to remove intent as an issue") (citation and punctuation omitted), and because Campbell argued at trial that he did not have the intent required to be convicted of home invasion.

The other acts evidence was relevant to the issue of whether Campbell had the necessary intent for home invasion. As our Supreme Court has explained,

[w]here the issue addressed is the defendant's intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant's indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses. The reasoning is that because the defendant had unlawful intent in the extrinsic offense, it is less likely that he had lawful intent in the present offense.

Kirby v. State , 304 Ga. 472, 480 (4) (a), 819 S.E.2d 468 (2018) (citation and punctuation omitted). "The relevance of other acts evidence is established when the prior act was committed with the same state of mind as the charged crime." Harrison , 310 Ga. at 867 (3), 855 S.E.2d 546 (citation and punctuation omitted). The state charged Campbell with committing the crime of home invasion by entering the house "with the intent to commit the forcible felony of [a]ggravated [a]ssault." So the state was required to prove that he entered the house with that intent. See Mackey v. State , 296 Ga. App. 675, 678 (2), 675 S.E.2d 567 (2009) ("If the indictment sets out the offense as done in a particular way, the proof must show it.") (citation and punctuation omitted). The evidence that Campbell previously committed an aggravated assault was relevant to his intent to commit an aggravated assault in this case, satisfying the first prong of the Rule 404 (b) test. See Harrison , supra.

"Because we conclude that [the other acts witness's] testimony was admissible to show [intent], we need not address whether that testimony was admissible to show [identity or absence of justification]." Smart v. State , 299 Ga. 414, 418 (2) (a) n. 3, 788 S.E.2d 442 (2016).

(b) Admissibility under Rule 403.

As to the second prong of the Rule 404 (b) analysis,

we examine both the probative value and the prejudicial effect of the other acts evidence. Probative value depends on the marginal worth of the evidence — how much it adds, in other words, to the proof available to establish the fact for which it is offered. In assessing the probative value of other acts evidence in proving intent, we consider the acts’ overall similarity to the charged crimes, their temporal remoteness, and the prosecutorial need for it.

Harrison , 310 Ga. at 867–68 (3), 855 S.E.2d 546 (citations and punctuation omitted). Campbell argues that the earlier incident was insufficiently similar because it occurred at a hotel rather than a house, involved Campbell's attempt to collect a debt, and involved a different type of firearm. But where, as here,

other acts evidence is introduced to prove intent , ... a lesser degree of similarity between the charged crime and the extrinsic evidence is required [than when other acts evidence is introduced to prove, for example, identity]. The trial court here had discretion to consider the similarities and differences and conclude that the evidence of the [earlier] incident retained substantial probative value.

Kirby , 304 Ga. at 484 (4) (a) (i), 819 S.E.2d 468 (citation and punctuation omitted; emphasis in original).

In addition, the earlier incident occurred only two weeks before the charged crimes, and the prosecution had a need for the other acts...