Davis v. the State.

• Citation: 706 S.E.2d 710,308 Ga.App. 7
• Decision Date: 17 February 2011
• Docket Number: No. A10A2072.,A10A2072.
• Parties: DAVISv.The STATE.
• Court: Georgia Court of Appeals

308 Ga.App. 7

706 S.E.2d 710

11 FCDR 342

DAVIS

v.The STATE.

No. A10A2072.

Court of Appeals of Georgia.

Feb. 17, 2011.

John G. Edwards, Valdosta, for appellant.Clifford Paul Bowden, District Attorney, Kevin Eugene Hutto, Assistant District Attorney, for appellee.PHIPPS, Presiding Judge.

Michael Leonard Davis was convicted of burglary, aggravated assault, and misdemeanor obstruction of an officer. He contends that the evidence was insufficient and that a variance between the allegata and the probata was fatal. Davis also contends that the trial court erred by refusing to give his requested charge on impeachment, denying his motion for a mistrial, and denying his motion for a new trial based upon his claim of ineffective assistance of counsel. Because Davis has shown no reversible error, we affirm.

1. When an appellant challenges the sufficiency of the evidence, “ the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ¹

The events underlying this case began at a house with street address “308 Alder Street.” Ricky Hill was renting the house, where he and his family had lived until a fire damaged the upstairs level in July 2007. Because Hill continued to pay rent, store almost all of the family's belongings inside the house, and receive his mail there, he checked on the house each day.

When he drove to the property at about noon on September 19, 2007, it was immediately apparent to him that someone had opened an exterior door. Hill went into the house and found a man, who dove out a bedroom window and fled on foot. Hill exited the same window and chased the man. Hill noted that the man had anchored on his shoulders a red book bag that belonged to his (Hill's) child. The man also was carrying a plastic bag, which he soon abandoned while trying to escape Hill.

When Hill was very close to catching the man, the man stopped, turned around, and “took a swing” at Hill, which “swing” Hill demonstrated at trial. Hill further recounted that he took a few steps backward, then brought up his hands and “got ready for the fight.” Hill testified, “[The man] looked at me like I was stupid and looked over towards his right hand.... He had a funny look on his face, so he looked over at his hand again; and I looked over to see what he kept looking at and he had a screwdriver in his hand.” The screwdriver was seven to eight inches long. At that point, Hill retreated backward, and the man began to flee. Hill “stayed behind him ... without getting too close” because he was concerned that the man had a screwdriver. Meanwhile, Hill used his cell phone to report the burglary to police, describing further the location of his ongoing foot pursuit of the perpetrator, as well as the perpetrator's gender, race, and clothing.

Within about 15 minutes of the start of the foot chase, a POST-certified investigator with the City of Tifton Police Department arrived in the area in response to a dispatch report. The investigator immediately noted a man who matched the description in the lookout report, including having in his possession a red bag. Hill pointed the investigator to the man as the perpetrator. In addition, onlookers in the area began pointing at the man, shouting that he was the one who had been chased. The investigator, who was not in full uniform, but was wearing a badge and his sidearm, stopped his car in the middle of the street, activated its strobe lights, identified himself to the man as “Police,” and commanded the man to put the red bag down and to show his hands.

The man, Hill testified at trial, was “completely defiant,” persistently denying that he had done anything wrong. Similarly, the investigator testified that the man turned his body toward him in an aggressive stance, became “very loud and aggressive” with him, and demanded that the officer tell him what he wanted with him. The investigator ordered the man to “get down”; the man did not. The investigator noted that the man kept his left hand near the red bag that was on his left side. Recalling information supplied in the lookout report that the suspect might be armed, the investigator drew his gun and again ordered the man to put his hands in the air. The man disregarded the order and continued to be loud and argumentative. Soon thereafter, approaching sirens could be heard; the man moved his hand away from the red bag; and the investigator returned his gun to its holster. The investigator seized the opportunity to grab the man and put him on the hood of his police car for handcuffing. The man continued to be verbally argumentative and repeatedly tried to snatch his arms free of the investigator's grasp. Finally, with the help of backup officers who arrived, the investigator was able to handcuff the man.

After the man was arrested, Hill traced the path taken back to the house. Along the way, he found various articles that belonged to him. At trial, Hill identified Davis as the man he had found in his house and pursued until the police caught and arrested him.

Davis elected not to testify and not to call any witnesses. However, his lawyer advised the court that the defense wanted to present to the jurors, for impeachment purposes, a video recording of Hill's statement to the police on the date of the incident.² Defense counsel did not seek to redact any portion of the video recording, and the prosecutor announced that the state had no objection to playing the entire video recording.³ Immediately before the defense played the recording for the jurors, the trial court informed them, “[T]he parties have stipulated and agreed to exhibit to you an interview that was conducted on [the date of the incident] at the police department.” The video recording showed Hill describing and demonstrating his encounter with Davis, including Davis fleeing the house and then taking a swing at Hill with a screwdriver in his hand.⁴

(a) Burglary is committed “when, without authority and with the intent to commit a felony or theft therein, [a person] enters or remains within the dwelling house of another or any building ... or other such structure designed for use as the dwelling of another or enters or remains within any other building ... or any room or any part thereof.” ⁵ The indictment alleged that Davis committed that offense by entering “the dwelling house of James Ricky Hill without authority, located at 308 Alder Street, Tifton, Tift County, with the intent to commit a theft therein.”

(i) Davis argues that there was no proof that the structure at issue was a “dwelling house” because Hill was no longer living there.⁶ This argument is controlled adversely to Davis by cases such as Waldrop v. State ⁷ and Sanders v. State.⁸ As recognized therein, Georgia's burglary statute is very broad and “does not limit its application to buildings of any particular type or in any particular condition.” ⁹ Here, the evidence showed the house at issue to be a building under the burglary statute.¹⁰ And in the final charge to the jury, the trial court instructed that the burglary statute proscribed unauthorized entry into or remaining in “any building or dwelling place of another.”

Davis argues that the house at issue here did not fall within the term “building” under the burglary statute, asserting that it was not sufficiently enclosed and secured. Citing Redfern v. State, ¹¹ Davis points to evidence that Hill and his family had moved out due to fire damage, a window was broken out, and prior to the date of the incident, the house had been broken into on several occasions. Davis's reliance upon Redfern is misplaced because that case, which determined that a 2,000–foot–high broadcast tower did not fall within the broad meaning given to the term “ building” under the burglary statute,¹² is factually inapposite. Here, the evidence showed that the damage caused by the fire was primarily on the upper floor. And while Hill and his family had moved out, Hill nevertheless had continued to pay rent, continued to store most of their belongings there, and checked each day that the house remained locked. There is no merit in Davis's argument.¹³

(ii) Davis also argues that there was no showing that he was not authorized to enter the structure, because the property owner (Hill's landlord) did not testify. Given that Hill was still paying rent to the property owner, still storing his belongings there, and still receiving mail there, his testimony that Davis was not authorized to be in the house was sufficient to show that Davis's entry was “without authority.” ¹⁴

(b) Aggravated assault is committed when a person “assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” ¹⁵ Simple assault is committed when a person, inter alia, “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” ¹⁶ The indictment alleged that Davis “did make an assault upon the person of James Ricky Hill, with a screwdriver, which when used offensively against a person is likely to or actually does result in serious bodily injury.”

Davis argues that the evidence showed that he was merely holding the screwdriver, rather than using it to attack or threaten Hill. He also argues that there was insufficient proof that Hill was placed in reasonable apprehension of receiving a violent injury, given Hill's continued pursuit of him despite knowing about the screwdriver.

The jury was not required to view the evidence as Davis urges. ¹⁷ Here, the evidence showed that Davis had a seven- to eight-inch-long screwdriver in his hand; that he “took a swing” at Hill when Hill caught up to him; that Hill assumed a fighting stance until he noticed the screwdriver; that Hill then immediately retreated;...