Ellis v. State, A06A1500.

• Decision Date: 02 October 2006
• Docket Number: No. A06A1500.,A06A1500.
• Citation: 282 Ga. App. 17,637 S.E.2d 729
• Parties: ELLIS v. The STATE.
• Court: Georgia Court of Appeals

282 Ga. App. 17

637 S.E.2d 729

ELLIS v. The STATE.

No. A06A1500.

Court of Appeals of Georgia.

October 2, 2006.

Reconsideration Denied October 20, 2006.

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E. Paul Stanley, for appellant.

Lee Darragh, District Attorney, Alison W. Toller, Assistant District Attorney, for appellee.

BARNES, Judge.

Ronald Keith Ellis was convicted of kidnapping, kidnapping with bodily injury, aggravated battery, aggravated assault, and false imprisonment. The kidnapping and false imprisonment counts merged with the conviction for kidnapping with bodily injury, and because this was Ellis's second serious violent felony, the trial court sentenced Ellis to life without parole, per OCGA § 17-10-7(b)(2). The court also sentenced Ellis to 20 years on the aggravated assault conviction and 20 years on the aggravated battery conviction. He appeals, contending that (1) the evidence on the kidnapping charges was insufficient; (2) the trial court erred in admitting similar transaction evidence; (3) his pre-trial guilty plea to aggravated assault and aggravated battery was never withdrawn, and thus he cannot be convicted on those counts; (4) the verdict form and the return of the verdict were improper; and (5) his trial and first appeal counsels were ineffective for numerous reasons. For the reasons that follow, we affirm.

1. We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses' credibility but only determine if the evidence is sufficient to sustain the convictions. Campbell v. State, 278 Ga. 839, 840(1), 607 S.E.2d 565 (2005). We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury's verdict. Id.

Viewed in that light, the evidence at trial established that in March 2002, the victim came to the Big Creek Tavern in Hall County to meet friends for dinner. She played a game or two of pool with a friend against Ellis and another man, and then sat at the bar with her friends and ate dinner. When she finished, she walked down a short hallway to the restroom, and when she came out she felt something hit her head from behind. She staggered, dizzy, and realized that a man was striking her in the head with a wooden bat. She tried to get away but he put his hands around her throat and dragged her toward an open window in the hallway as she struggled fiercely, screaming, flailing, and fighting as hard as she could. The attacker told her not to scream or he would cut her throat. She fell to the floor, face up, and saw her attacker's face and clothing. At trial the victim identified her attacker as Ellis.

One of the servers came around the corner to the hall and saw the victim lying on the floor with her skirt hiked up around her hips while a man dressed in a black tee shirt, camouflage pants, and black combat boots stood over her, dragging her toward the open window. The server screamed and Ellis let go of the victim, fleeing through the window. The victim had a gash on her forehead, along with other injuries, and was bleeding profusely.

The server turned and yelled to the manager that someone had attacked the victim, jumped out the window, and was heading down the drive toward the back of the restaurant. She described his clothing, which consisted of a black tee shirt, camouflage pants, and black boots. The manager and a friend ran through the kitchen and out the back door, with the kitchen staff following her, and saw Ellis running through the trees and bushes behind the restaurant. When they reached a fence at the edge of a small wooded area, Ellis was there on the opposite side, and he was the only person out there. He was wearing a black tee shirt, camouflage pants, and combat boots. They asked him if he had seen anyone, and he replied, "What happened to [the victim]?" They had not mentioned the victim, and one of them said, "I know you did it."

A customer who had come outside and who knew Ellis approached him. Ellis told him "I can't go down for this," and the customer talked him into coming back inside the building. While they were talking, the customer noticed that Ellis kept rubbing his hands, and once inside, he saw blood between Ellis's fingers. The manager also saw that Ellis had blood between his fingers, which he was trying to wipe off. Ellis's truck, with the passenger door open, was parked near the open window through which he tried to pull the victim.

A woman who lived in a house just behind the restaurant saw a truck coming down the driveway with its lights out, and she asked her husband to close the gate in the fence between the restaurant and house. The husband testified that he saw Ellis by his truck that evening and exchanged hellos with him. About ten minutes later the couple heard a big commotion outside, followed by police sirens. The wife came outside eventually and saw Ellis in handcuffs. He said, "Tell them I was back there talking to you and [your husband]," and she thought, "Oh no you weren't."

A deputy sheriff, who had been close by, arrived at the scene very quickly. He learned that a man in a black tee shirt and camouflage pants had hit the victim in the face, spun her around, and dragged her backward toward the open window. The victim pointed out Ellis as her attacker, who was back inside the bar by that time. The deputy sheriff, the victim's friend, and the manager all testified that Ellis was the only one in the restaurant that night wearing a black tee shirt, camouflage pants, and black boots. Ellis claims, however, that he had been shooting pool all night and he had not left the room. The deputy walked Ellis outside, and found a folding pocketknife in his front pocket and "flexicuffs" in another pocket, which are wire ties that officers use as backup handcuffs. A crime scene investigator found a bloody wooden billy club at the edge of the woods behind the restaurant.

In addition to the gash on her forehead, the victim suffered scraped hands, a bruised ear and shoulder, and lumps on her head. She required eight stitches to close the cut on her face, as well as multiple CAT scans to check for problems due to the blows on her head.

Ellis contends that the State failed to introduce any evidence that he moved the victim, and thus the element of asportation critical to the kidnapping charge was missing. "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." OCGA § 16-5-40(a). For a kidnapping conviction, the State must prove an unlawful asportation of a person against his will. "The determinative factor with regard to the element of asportation is whether appellant even momentarily caused the victim[ ], without lawful authority or warrant, through intimidation and coercion, to engage in actions (including moving from one place to another) against [her] will[ ]." (Citations and punctuation omitted.) Briard v. State, 188 Ga.App. 490, 491(1), 373 S.E.2d 239 (1988). "Only the slightest movement of the victim is required to constitute the necessary element of asportation. [Cits.]" (Punctuation omitted.) Nelson v. State, 278 Ga.App. 548, 551(3), 629 S.E.2d 410 (2006). In this case, several witnesses testified that Ellis dragged the victim toward an open window, outside of which his truck waited with an open passenger door. Evidence he dragged the victim a few feet is sufficient for a rational trier of fact to find Ellis guilty beyond a reasonable doubt of kidnapping with bodily injury. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Ellis claims that both his trial counsel and first appellate counsel were ineffective, pointing to six separate issues. To establish a claim of ineffective assistance of counsel, the appellant must show both that counsel's performance was deficient by making errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment, and that his defense was so prejudiced by the deficient performance that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 695-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also, White v. State, 193 Ga.App. 428, 429-430(2), 387 S.E.2d 921 (1989). As to the first prong, counsel's performance is assessed in light of the totality of the circumstances viewed from counsel's perspective at the time of trial, and Ellis must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct. As to the second prong, Ellis must show a reasonable probability that the outcome of the proceedings would have been different, but for counsel's unprofessional errors. Id. Further, each error must stand or fall on its own merits, "and is not aided or aggravated by the accumulative effect of other claims of error." (Citations and punctuation omitted.) Polk v. State, 225 Ga.App. 257, 259(1)(d), 483 S.E.2d 687 (1997). Finally, "[w]here the issue of trial counsel's effectiveness has been raised on motion for new trial, any claims not raised at that time are waived. Spear v. State, 270 Ga. 628(5), 513 S.E.2d 489 (1999); Bagwell v. State, 270 Ga. 175(1)(f), 508 S.E.2d 385 (1998)." Wilson v. State, 277 Ga. 195, 200(2), 586 S.E.2d 669 (2003).

(a). First, Ellis contends that his appointed attorney was ineffective as a matter of law because he failed to file any motions or appear on Ellis's behalf at any hearing or trial. Because this claim of trial counsel's ineffectiveness was not raised below, it is waived. Moore v. State, 279 Ga. 45, 47-48(8), 609 S.E.2d 340 (2005); Pye v. State, 274 Ga. 839(1), 561 S.E.2d 109 (2002) (failure of post-conviction counsel to raise ineffective assistance in new trial motion waives claim). Even if it had not been waived, the record shows that, while appointed counsel...