Collins v. State

• Decision Date: 05 January 2007
• Docket Number: No. A06A1652.,A06A1652.
• Citation: 641 S.E.2d 208,283 Ga. App. 188
• Parties: COLLINS v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 188

641 S.E.2d 208

COLLINS v. The STATE.

No. A06A1652.

Court of Appeals of Georgia.

January 5, 2007.

Garland, Samuel & Loeb, William C. Lea, Atlanta, for appellant.

W. Kendall Wynne, Jr., District Attorney, Layla V. Hinton, Asst. District Attorney, for appellee.

BERNES, Judge.

A Newton County jury convicted Kevin Jay Collins of aggravated battery and reckless conduct after he broke his girlfriend's neck during an argument. On appeal from the denial of his amended motion for new trial, Collins contends that there was insufficient evidence to convict him and that he received ineffective assistance of counsel. For the reasons discussed below, we reject Collins' sufficiency of the evidence and ineffective assistance claims. However, because the trial court should have merged Collins' conviction for reckless conduct into his conviction for aggravated battery, we vacate Collins' conviction and sentence for reckless conduct.

1. Collins contends that there was insufficient evidence to support his convictions. 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 the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations omitted.) Milton v. State, 272 Ga. App. 908, 909, 614 S.E.2d 140 (2005).

Viewed in this light, the evidence presented at trial reflects that Collins and the victim were dating at the time of the incident. On August 8, 2004, Collins, the victim, and several others made plans to celebrate the birthday of the victim's oldest sister. That evening, the group departed in a rented limousine for a comedy club in Atlanta for the birthday celebration. On the way to the club, the victim "took some sips of [her] cousin's wine" but attempted to conceal it from Collins, who had "some concerns" about being around drinking based on his prior problems with alcohol. Collins soon realized that the victim was drinking wine, became angry, and began to argue with the victim.

Collins and the victim continued to argue about her alcohol use after they arrived at the comedy club. Nevertheless, Collins bought the victim wine and began consuming alcohol himself. Even so, Collins remained mad at the victim "the entire night" over the fact that she was drinking alcohol, to the point that "it became obvious to the rest of [the] group that he was angry." As the argument continued, Collins "grabb[ed] and squeez[ed]" the victim, causing bruises on her arm and leg. By the end of the birthday celebration, the argument had become so "heated" that the victim began to cry.

Once the birthday celebration concluded, the group rode in the limousine back to the home of the victim's sister. After reaching the sister's residence, Collins agreed to drive the victim back to her apartment in Newton County. During the drive, Collins began yelling at the victim about her alcohol use. As they neared the apartment, the argument escalated to the point that Collins intentionally threw tobacco juice from his dipping cup into the victim's face. The juice went into the victim's eye, causing her eye to burn and for her to temporarily lose sight. As Collins stopped the car outside the victim's apartment, he punched the rearview mirror, breaking it. The victim then grabbed Collins' face "to say stop." In response, Collins grabbed the victim by the face, twisted her head "all the way around" to the left, and "slammed" her turned head toward the floorboard.

In severe pain and unable to move her neck, the victim began to scream "you broke my neck, you broke my neck." The victim repeatedly pled for Collins to take her to the hospital or call her mother, but Collins refused and took away her cell phone. After Collins carried the victim into her apartment, the victim sat on the couch, crying hysterically and rocking back and forth. She asked Collins to retrieve some pain medication that had recently been prescribed to her for tooth trouble. Collins retrieved the medication, and the victim took one of the pills. Collins then carried the victim to her bedroom, laid her on the bed, took off her clothes, and had sex with her.

At approximately 9:00 a.m., after sleeping for three hours, the victim awoke "shaking [so] badly that [her] teeth were chattering." The victim was unable to move her right arm. As Collins continued sleeping, the victim made it to her cell phone and called her mother, who drove over to the victim's apartment and took her to the hospital. Collins left the apartment separately in his own truck.

Testing at the hospital revealed that the victim's neck was broken, necessitating surgery. The victim remained at the hospital for six days and thereafter had to wear a neck brace for two months. Collins never visited the victim at the hospital.

After her release from the hospital, the victim was interviewed by an investigator with the Newton County Sheriff's Office. The victim related to the investigator how she had been injured, and the investigator took out warrants for Collins' arrest. However, the investigator was unable to locate Collins, who had turned off his cell phone and had left his residence and checked into a hotel. Collins also had left his truck at his residence and instead was using a taxi for transportation. A week later, law enforcement officers spotted Collins walking toward the interstate and arrested him. Collins was subsequently tried and convicted of aggravated battery and reckless conduct.

(a) Aggravated Battery. "A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body. . . ." OCGA § 16-5-24(a). The indictment alleged that Collins committed aggravated battery in that he maliciously caused bodily harm "by depriving [the victim] of a member of her body, to-wit: her neck, by grabbing her head with his hands and twisting her neck." On appeal, Collins does not contest that he grabbed the victim and caused her to break her neck, or that she was deprived of use of her neck as a result of her injury. Rather, he contends that the evidence presented at trial failed to prove that he acted with the requisite criminal intent to be convicted of aggravated battery as charged in the indictment. We disagree.

"The intention with which an act is done is peculiarly for the finder of fact," who "may infer that a person acted with criminal intent after considering the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." (Citation and punctuation omitted.) In the Interest of C.L.B., 267 Ga.App. 456, 458, 600 S.E.2d 407 (2004). Such an inference clearly was permissible in this case. In particular, Collins' malicious intent could be inferred from the act itself of twisting the victim's head "all the way around" to the left and "slamm[ing]" it toward the car floorboard.¹ See Strozier v. State, 254 Ga.App. 528, 529(1), 562 S.E.2d 832 (2002) (jury may infer "that persons of sound mind and discretion intend the natural and probable consequences of their acts") (citation omitted). His intent also could be inferred from the fact that the incident occurred during a heated argument that had extended over several hours and had previously resulted in physical violence toward the victim, as shown by the bruising on her arm and leg; by his refusal to take the victim to a hospital or call her mother after the incident; and by his subsequent flight from law enforcement. See Green v. State, 277 Ga.App. 867, 869(1), 627 S.E.2d 914 (2006) (efforts to avoid police detection can serve as evidence of defendant's consciousness of guilt); Johnson v. State, 277 Ga.App. 499, 503(1)(a), 627 S.E.2d 116 (2006) (defendant's flight can serve as circumstantial evidence of guilt). Finally, Collins' intent could be inferred from evidence of two prior similar transactions in which Collins had assaulted a previous girl-friend. See Johnson v. State, 276 Ga.App. 505, 510(4), 623 S.E.2d 706 (2005) (similar transaction evidence can be admitted to prove the defendant's bent of mind and intent).

It is true that Collins testified, in contrast to the victim, that the incident occurred while they were still en route to the victim's apartment complex, and that he was only attempting to push the victim away from him in order to avoid a car accident. The jury, however, was entitled to disbelieve Collins' self-serving version of events. See Lee v. State, 275 Ga.App. 93, 95, 619 S.E.2d 767 (2005); Nelloms v. State, 273 Ga.App. 448, 450(1), 615 S.E.2d 153 (2005). Moreover, even if the jury believed Collins' testimony that he was reacting to the victim's aggression, the jury nevertheless was entitled to conclude that his reaction was excessive and therefore was not justified. See, e.g., Clark v. State, 271 Ga. 27, 29(2), 518 S.E.2d 117 (1999) ("The use of excessive force or unlawful force while acting in self defense is not justifiable. . . ."). And, although Collins attempts to call into question the credibility of the victim's testimony by emphasizing that she had been drinking before the incident and had made a prior inconsistent statement in a letter addressed to the trial court, it is the province of the jury, not this Court, to assess witness credibility and weigh conflicting evidence. Odett v. State, 273 Ga. 353, 353-354(1), 541 S.E.2d 29 (2001).

Finally, Collins asserts that his acquittal on a separate count of aggravated assault "generates real concern as to whether [the jury] reached a decision supported by the evidence." His assertion is without merit. "Georgia does not recognize the inconsistent verdict rule, and thus [Collins] may not use his acquittal on one count to...