Eller v. State

• Decision Date: 16 October 2008
• Docket Number: No. A08A1505.,A08A1505.
• Citation: 294 Ga. App. 77,668 S.E.2d 755
• Parties: ELLER v. The STATE.
• Court: Georgia Court of Appeals

668 S.E.2d 755

294 Ga. App. 77

ELLER v. The STATE.

No. A08A1505.

Court of Appeals of Georgia.

October 16, 2008.

Tina Euginia Maddox, Vidalia, for Appellant.

Tom Durden, Dist. Atty., for Appellee.

ADAMS, Judge.

Following a trial by jury, Alvin Eller was convicted of kidnapping, aggravated sodomy, and simple battery. On appeal he contends the evidence was insufficient to support the verdicts and that his trial counsel was ineffective in several ways. On appeal, we do not assess the weight of the evidence or the credibility of witnesses. Instead, "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." (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The 4' 11" victim had been "partying"— drinking and using cocaine — on the evening of July 3, 2003, and was hitchhiking to get home when Eller and Peggy Smith picked her up. Although she did not know them, she consented to continue partying with them. And after Eller and Smith purchased more drugs, they continued to use it outside Smith's home, which was located near other Eller family homes. Smith went inside, and while Eller and the victim were alone together, Eller got mad because the victim refused to have sex with him. The victim decided to walk home and had begun to do so. The victim testified that Eller then "come on to me and I — my answer is no." She continued walking but Eller, who is six feet, three inches tall and missing one arm, followed and "got me on the ground" and held her there so no one could see them. He threatened to hit her to make her keep quiet. She testified that Eller held her there for 30 or 45 minutes "and told me what he had done to another person, another woman, and I was scared. He had threatened to kill me. He had threatened to rape me and then kill me and then rape me again." But she admitted that he did not touch, fondle or hurt her in any way at this time; he only threatened her. She screamed and two of Eller's relatives came along in a truck with a spotlight.

The victim testified that she ran to the truck begging for help. The men in the truck told her to just keep walking, that they would keep Eller occupied. So she ran on and hid in the woods briefly before continuing down the dirt road. Although she reached the nearby paved road, Eller caught up with her. Then, as she testified, Eller "drug me by the back of my hair across the grass and drug me back into the woods, more or less. It was not too far in the woods because I refused to go into the woods. I was scared." At this point, she took a beer from Eller and drank it. But Eller demanded that she have oral sex with him. She complied for "a minute or two" because she was scared for her life and felt threatened by his actions. The truck from earlier passed by again, and three of Eller's relatives witnessed the oral sex. The police then arrived.

An officer read Eller his Miranda rights, and Eller waived his rights and dictated a statement. Eller admitted to the basic events described by the victim but claimed no wrong-doing and that the victim consented. An officer observed a bruise on the victim's arm, which she claimed resulted from Eller grabbing her. Officers interviewed the three relatives — Paul Eller, Robert Eller and Timothy Hunnicut — who had witnessed some aspects of the encounter between Eller and the victim. Each testified solely for the defense.

The jury found Eller guilty as charged, and he was sentenced as a recidivist to life in prison for kidnapping, concurrent life for aggravated sodomy, and one year on the count of simple battery.

1. The evidence was sufficient to support the verdict of kidnapping. OCGA § 16-5-40(a) provides that "[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will." "Thus, a kidnapping conviction requires evidence of some movement of the victim, but proof of even slight movement will satisfy this requirement. [Cit.]" Gilbert v. State, 291 Ga.App. 898, 899(1), 663 S.E.2d 299 (2008). Here, there was evidence that Eller grabbed the victim by the hair and dragged her into or toward the woods against her will. See Gilbert, and cases cited therein.

2. The evidence was sufficient to support the verdict of aggravated sodomy. OCGA § 16-6-2(a)(2) provides that "[a] person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person...." First, "[l]ack of resistance, induced by fear, is not legally cognizable consent but is force." (Citation omitted.) Long v. State, 241 Ga.App. 370, 371(2), 526 S.E.2d 875 (1999). Here, the victim testified that Eller threatened to kill her and that she had oral sex with him as a result. "[A] trier of fact could conclude that [Eller's] words and actions were sufficient to instill in his victim[ ] a reasonable apprehension of dangerous consequences if [she] resisted his demands." Dasher v. State, 281 Ga.App. 326, 329, 636 S.E.2d 83 (2006). See also Raines v. State, 191 Ga.App. 743, 744(1), 382 S.E.2d 738 (1989). There is also circumstantial evidence consistent with the victim's lack of consent. Defense witnesses testified that she screamed "rape" and "stop" several times, which caused the witnesses to twice respond to see what was happening. And on one of those occasions, she jumped into the back of a truck in order to get away from Eller. See Davis v. State, 278 Ga.App. 628, 629-630, 629 S.E.2d 537 (2006).

3. The evidence was also sufficient to support the verdict of simple battery. "A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another." OCGA § 16-5-23(a). The defendant grabbed the victim by the hair and dragged her by the hair. See, e.g., McFalls v. State, 260 Ga.App. 578, 579, 580 S.E.2d 328 (2003) (defendant's conviction of simple battery for pulling victim's hair affirmed); Carroll v. State, 255 Ga.App. 230, 231, 564 S.E.2d 833 (2002) (same).

4. Eller claims his trial counsel was ineffective in several regards.

(a) First, he asserts counsel was ineffective when he failed to object to prejudicial hearsay statements made by the State's witnesses during the State's case-in-chief. Sergeant Kevin Keyfauver, who responded to the emergency call, testified that either Paul Eller or Robert Eller told him that the defendant and a woman were involved in a dispute; that they had heard screaming and therefore pursued and "found him on top of her and were concerned about what had gone on"; and that they called the sheriff's office as a result.

Special Agent Charles Sullenger of the Georgia Bureau of Investigation, who also responded to the scene, essentially read into evidence three witness statements. He testified that officers informed him that Eller had attempted to rape the victim. He testified that Paul Eller told him that Timothy Hunnicut had witnessed a rape. And he testified that Robert Eller told him that at one point the victim had walked away from Eller but that Eller had followed her, and she yelled "stop" at least five times; that he and Hunnicut responded to the victim's cries and found the defendant on top of her; that they drove to find the couple and it did not appear to him and Hunnicut that the defendant "had been successful in removing her clothes" that he attempted to distract the defendant so that the victim could get away; that the victim left while they talked to the defendant, but the defendant then went looking for her; that he and Hunnicut later heard the victim yell a second time; that this caused him, Hunnicut and Paul Eller to again drive a short way to find out what was happening, whereupon they found the defendant standing up with the victim performing oral sex on him; that he asked the defendant if he was raping the victim; and that Paul called the sheriff's department and remained until deputies arrived.

Defense counsel did not object to any of this hearsay testimony. When the three witnesses testified for the defense, the State impeached them with the same information taken from the officer's notes each time they contradicted what the officer had recorded therein.

Under the standard for assessing whether trial counsel rendered constitutionally effective assistance as set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a criminal defendant must show both that his counsel's performance was deficient and but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Id. "The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. The trial court's findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous." (Citations omitted.) Domingues v. State, 277 Ga. 373, 374(2), 589 S.E.2d 102 (2003).

Testimony by an officer as to statements made by witnesses during the course of a police investigation is hearsay. OCGA § 24-3-1(a). Furthermore, the admission of such evidence can be a violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which makes clear that testimonial hearsay, as in the present case, is only admissible if the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. Nevertheless, if defense counsel, "based on reasonable strategic and tactical grounds," elects not to object to such evidence then a claim of ineffective assistance is precluded. Beck v. State, 292 Ga.App. 472,...