Chapman v. State

• Decision Date: 02 November 2012
• Docket Number: No. A12A0839.,A12A0839.
• Citation: 733 S.E.2d 848,318 Ga.App. 514
• Parties: CHAPMAN v. The STATE.
• Court: Georgia Court of Appeals

318 Ga.App. 514

733 S.E.2d 848

CHAPMAN

v.The STATE.

No. A12A0839.

Court of Appeals of Georgia.

Nov. 2, 2012.

Bernadette Camille Crucilla, Macon, for Appellant.

Layla Hinton Zon, Melanie McCrorey Bell, for Appellee.

DOYLE, Presiding Judge.

Following a jury trial, William Kenny Chapman, II appeals from his conviction of attempted burglary ¹ and attempted rape.² Chapman contends that (1) he received ineffective assistance of counsel because trial counsel (a) failed to file a demurrer to the defective indictment, (b) failed to move for a directed verdict, (c) failed to request jury instructions on lesser included offenses, and (d) opened the door to damaging character evidence. Chapman also argues that (2) the evidence was insufficient to support the guilty verdict, (3) the trial court inappropriately commented on the evidence, and (4) the trial court erroneously admitted similar transaction evidence. For the reasons that follow, we affirm.

Construed in favor of the verdict,³ the evidence shows that at around 1:00 or 2:00 a.m., 15–year–old A.R. was going to sleep in her room in a mobile home. She was disturbed by scratching noises at the air conditioning unit mounted in her bedroom window. She screamed for her mother, who came and reassured her that the sound were probably nothing to worry about. A.R. again heard the noise and called her mother, and they looked out the window to see an unknown male at the window. A.R. and her mother fled to the living room, where the mother called the police as she confronted the stranger who was now looking in the living room window.

As the stranger fled, the mother described his appearance to the police, who responded to scene and discovered Chapman, who matched the description given by the mother. Chapman was arrested, and, police discovered an alcoholic drink, a pornographic magazine, and a pair of women's underwear in his truck.

Based on these events, Chapman was indicted with attempted burglary and attempted rape.⁴ Prior to trial, the State gave notice of its intent to introduce a prior rape conviction as similar transaction evidence, and after a hearing, the trial court ruled that the evidence was admissible. Following a jury trial, Chapman was convicted on both counts, and the trial court denied his motion for new trial, giving rise to this appeal.

1. Chapman argues that the trial court convicted him under a defective indictment as to each count. Because he did not file a timely demurrer to the indictment or a motion in arrest of the judgment, such an argument would normally be waived.⁵ Nevertheless, our analysis does not end there because Chapman filed a motion for new trial asserting a claim for ineffective assistance predicated on his trial counsel's failure to file a timely demurrer to the indictment:

A motion in arrest of judgment or habeas corpus are the only remedies available when no demurrer to the indictment is interposed before judgment is entered on the verdict. Therefore, a motion for new trial is ordinarily not the proper method to attack the sufficiency of the indictment. But, this Court has made an exception [in cases such as this one] when the motion for new trial raises the ground of ineffective assistance of counsel.⁶

Under Strickland v. Washington,⁷ to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.⁸If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong.⁹ In reviewing the trial court's decision, “[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” ¹⁰

(a) Attempted burglary. Chapman contends that his trial counsel performed deficiently by failing to file a demurrer to the indictment because the indictment failed to adequately allege the crime of attempted burglary. We disagree.

Chapman's indictment charged as follows:

[The grand jurors] do hereby charge and accuse: WILLIAM KENNY CHAPMAN II with the offense of: CRIMINAL ATTEMPT TO COMMIT BURGLARY for that the said accused ... did then and there, unlawfully: with intent to commit a specific crime, to wit: burglary, perform an act which constitutes a substantial step toward the commission of that crime, to wit: said accused attempted to remove an air conditioning window unit from the window of a residence occupied by to [sic] [K.S.], in violation of OCGA § 16–4–1 and OCGA § 16–7–1, contrary to the laws of this State, the good order, peace, dignity thereof.

“A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime [prior to judgment]; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” ¹¹ It is well established that the test for determining whether an indictment is sufficient to withstand a general demurrer is

whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Thus, if the accused can admit all the indictment ... charges and still be innocent of having committed any offense, the indictment is ... defective.¹²

The crime charged in this case was criminal attempt to conduct a burglary. Under OCGA § 16–4–1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” The indictment alleged that Chapman had the intent to commit the specific crime of burglary and that he intentionally tried to remove an air conditioning window unit, which act constituted a substantial step toward commission of the burglary. Therefore, the indictment was not subject to a general demurrer because Chapman could not admit these acts and still be innocent of the crime alleged.¹³

To the extent that Chapman's trial counsel should have sought greater specificity in the indictment, such an argument would be made in a special demurrer.¹⁴ But this defense fails in the context of Chapman's ineffective assistance of counsel claim, because Chapman cannot demonstrate prejudice. If a timely special demurrer is granted,

the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Chapman's] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [Chapman]. And [Chapman] does not argue that the imperfect indictment prejudiced his defense in any way[, instead, he argues that the count was void]. Under these circumstances, [Chapman] has failed to show that he was prejudiced by his attorney's failure to file [a special] demurrer.¹⁵

(b) Attempted rape. In the same context, Chapman contends that his trial counsel was ineffective for failing to demur to the attempted rape count. Chapman argues that the count was deficient because it (i) contained an incorrect Code section, (ii) failed to allege each essential element of rape, and (iii) failed to specify the way in which the rape would be committed. We find no reversible error.

The attempted rape count reads as follows, in relevant part:

for that the said accused on February 18, 2007 ... did then and there, unlawfully: with intent to commit a specific crime, to wit: Rape, perform an act which constitutes a substantial step toward the commission of that crime, to wit: said accused attempted to enter the bedroom window of a home occupied by [A.R.] and [K.S.], in violation of OCGA Sec. 16–4–1 [criminal attempt] and OCGA 16–6–4 [child molestation], contrary to the laws of this State, the good order, peace, and dignity thereof.

*Ga.App.518(i) Chapman is correct that the indictment cites OCGA § 16–6–4, which is the Code section for child molestation instead of rape.

It is not the name, but the description of the crime, which characterizes the offense charged. An indictment in which the allegations track the language of the applicable Code section is good as against a general demurrer. An alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment.¹⁶

The form of the indictment may be challenged by a special demurrer, but even if the trial court grants a special demurrer and quashes the indictment, it does not bar the State from re-indicting the defendant.¹⁷ Chapman does not demonstrate a statute of limitations defense or other manner in which requiring the State to re-indict him was reasonably likely to result in a different outcome in this case.¹⁸ Therefore, Chapman has “failed to demonstrate a reasonable likelihood that, but for defense counsel's failure to demur to the [attempted rape charge], the outcome of trial would have differed.” ¹⁹

(ii) Chapman's argument that the indictment should have included each element of the rape charge also fails for the reasons explained in Division 1(a). “Because [Chapman] was charged with criminal attempt, the [S]tate was required to allege that, with an intent to commit the underlying crime, he performed some overt act toward its commission.” ²⁰ The indictment alleged that Chapman tried to enter the bedroom window of a residence occupied by the female victim with the intent of committing a rape. Therefore, the indictment did not fail to charge him with a crime, and Chapman cannot show harm by his trial counsel's...