Edwards v. State

• Decision Date: 09 September 1988
• Docket Number: No. 76570,76570
• Citation: 374 S.E.2d 97,188 Ga.App. 667
• Parties: EDWARDS v. The STATE.
• Court: Georgia Court of Appeals

Page 97

374 S.E.2d 97

188 Ga.App. 667

EDWARDS v. The STATE.

No. 76570.

Court of Appeals of Georgia.

Sept. 9, 1988.

Rehearing Denied Oct. 4, 1988.

E. Gordon Staples, Jr., Carrollton, for appellant.

William G. Hamrick, Jr., Dist. Atty., Agnes McCabe, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

Boyd Edwards appeals his conviction for the offenses of theft by deception, bigamy and recidivism.

1. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal on the charge of theft by deception on the general grounds that the State failed to prove the elements of the crime.

"The gravamen of [OCGA § 16-8-3(a) ] lies in obtaining the property of another by intentionally creating a false impression as to an existing fact or past event." Mathis v. State, 161 Ga.App. 251, 288 S.E.2d 317 (1982). Viewing the evidence in the light most favorable to the prosecution, testimony was adduced that appellant, after marrying Louise Flournoy (hereinafter "Flournoy"), obtained at least $55,459 from her over the course of several months by representing to her that he would get her a "double return" on the money by investing it in several companies he allegedly owned. Lieutenant Mike Bradley of the Carrollton Police Department testified that appellant admitted to him that a back-dated agreement appellant had Flournoy sign after she had given him the money, in which she agreed to provide appellant's company, Edwards Enterprises of Charlotte, North Carolina, with $56,000 in exchange for 20 percent interest on that money as insured by "Global Insurance Co., Inc., bonding agents," contained "mostly fictitious" information. Appellant admitted that the insurance company did not exist, and Lt. Bradley's own investigations revealed that appellant's company did not exist either in Georgia or in North Carolina. Flournoy did not recover the money or receive any return on it.

"The weight of the evidence and credibility of witnesses are questions for the jury. [Cit.] We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) [ (1979) ]." Davis v. State, 180 Ga.App. 299, 300(1), 349 S.E.2d 29 (1986).

2. Appellant asserts the trial court erroneously denied his motion for a directed verdict of acquittal on the charge of bigamy on the general grounds, as well as because venue was not proper in Carroll County. At trial, Flournoy testified that she married appellant on September 4, 1985 in Dillard, South Carolina; that they returned that day to her home in Carroll County where appellant spent the night; and that appellant was "home" later on the December day that Lt. Bradley visited her in order to speak to appellant. Lt. Bradley testified that appellant told him that he (appellant) married Ruby Mallett in Marshall, Texas; that Lt. Bradley went to Texas and obtained a certified copy of the marriage license dated August 28, 1985; that after talking to Mallett, Lt. Bradley obtained a certified copy of the annulment decree obtained by Mallett which was not entered until October 7, 1985.

Although appellant argues venue is proper only in South Carolina, the cases supporting this position, see Pitts v. State, 147 Ga. 801, 802-803(2), 95 S.E. 706 (1918) and McBride v. Graeber, 16 Ga.App. 240(3), 85 S.E. 86 (1915), were rendered prior to the enactment, in Ga.L.1968, p. 1249, § 1, of the current statute, OCGA § 16-6-20(a), which provides: "A person commits the offense of bigamy when he, being married and knowing that his lawful spouse is living, marries another person or carries on a bigamous cohabitation with another person." (Emphasis supplied.) Thus, Pitts and McBride, supra, construing earlier bigamy statutes, no longer have the force of law and we agree with the State that under OCGA § 16-6-20(a), venue is proper for the offense of bigamy in the county where a person, being married and knowing the lawful spouse is living, carries on a bigamous cohabitation with another person. We hold that the evidence presented by the State was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt both that appellant had committed the offense of bigamy and that venue for the prosecution properly lay in Carroll County. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Felton v. State, 184 Ga.App. 570, 571(1), 362 S.E.2d 107 (1987).

3. Regarding appellant's general grounds objection to his conviction of recidivism, we find the evidence of appellant's felony convictions in Virginia, Arizona, and Alabama sufficient to meet the standard of proof required by Jackson, supra, so as to support appellant's conviction under OCGA § 17-10-7.

4. Appellant contends he was denied the right to a thorough voir dire of prospective jurors when the trial court sustained the State's objection to two voir dire questions requested by appellant. Appellant argues the questions had a direct bearing on testimony to be presented during trial, asserting that his Question No. 4 related to evidence that appellant was being sued for divorce by inquiring whether the jurors felt an individual should be subject to criminal prosecution and civil liability for the same set of circumstances, and that his Question No. 5 related to appellant's defense of mistake of fact by inquiring whether the jurors felt that "a person should be convicted of a crime and face the possibility of a prison sentence due to a mistake in belief of facts, which if the facts had been as the person thought, there would have been no crime?"

"The purpose of voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. [Cit.]" Mathis v. State, 176 Ga.App. 362, 363, 336 S.E.2d 299 (1985). " 'Conduct of voir dire is within the discretion of the trial court and the court's rulings are presumed proper in the absence of some manifest abuse of discretion. [Cit.]' [Cit.]" Ridgeway v. State, 174 Ga.App. 663, 665(3), 330 S.E.2d 916 (1985). Since Question No. 4 dealt with matters beyond the specific case and Question No. 5 required a response from a juror which might amount to a prejudgment of the case, there was no abuse of the trial court's discretion in refusing these questions. See generally Curtis v. State, 224 Ga. 870, 871(2), 165 S.E.2d 150 (1968); Bowens v. State, 116 Ga.App. 577, 578-580(4) and (6), 158 S.E.2d 420 (1967).

5. Appellant asserts the trial court erred by overruling his motion for a continuance, thereby denying him his right to be present during the course of the trial. The transcript reveals that after trial commenced on October 20, 1986, appellant complained of chest pains and on the recommendation of appellant's physician, the trial court continued the trial until the following day. When court reconvened, appellant was not present and the court was informed appellant had missed his doctor's appointment scheduled for that morning; that appellant's hotel room had been "cleaned out"; and that appellant's attorney had not heard from him since the previous evening and did not know where he was. The motion for continuance made by appellant's counsel was denied by the trial court.

This case is factually indistinguishable from Byrd v. Ricketts, 233 Ga. 779, 213 S.E.2d 610 (1975), in which it was held that "[c]onfrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial. [Cits.]" Id. at 780, 213 S.E.2d 610. Pollard v. State, 175 Ga.App. 269, 333 S.E.2d 152 (1985), cited by appellant, is distinguishable from the case sub judice in that the defendant therein voluntarily absented himself prior to trial before jeopardy attached. We find no error in the trial court's denial of the motion for continuance.

6. Appellant contends the trial court erred by admitting statements appellant made to the police because the statements were elicited from appellant with a "hope of benefit" that the charges against appellant would be prosecuted in a federal district court rather than a Georgia superior court. Even if we were to accept appellant's contention that it was not he who first raised the idea of federal court prosecution (see Dickey v. State, 157 Ga.App. 13, 14(1), 276 S.E.2d 75 (1981)), "we conclude that the benefit involved was not 'hope of lighter punishment (induced by one other than the defendant)' [cit.], but was a collateral benefit which does not render a confession inadmissible. OCGA § 24-3-51...." Patrick v. State, 169 Ga.App. 302(1), 312 S.E.2d 385 (1983). Compare Johnson v. State, 238 Ga. 27-28(1), 230 S.E.2d 849 (1976). Appellant's statements were properly submitted to the jury.

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