Ellis v. State

• Decision Date: 25 June 2012
• Docket Number: No. A12A0232.,A12A0232.
• Citation: 729 S.E.2d 492,12 FCDR 2100,316 Ga.App. 352
• Parties: ELLIS v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 352

729 S.E.2d 492

12 FCDR 2100

ELLIS

v.The STATE.

No. A12A0232.

Court of Appeals of Georgia.

June 25, 2012.

Veronica Evette Brinson, Jimmonique R.S. Rodgers, Fort Gordon, for Appellant.

Tommy Kenneth Floyd, Atha Helen Pryor, for Appellee.

MILLER, Judge.

Following a jury trial, Anthony Ellis was convicted of aggravated assault (OCGA § 16–5–21(a)(2)), aggravated sodomy (OCGA § 16–6–2(a)(2)), rape (OCGA § 16–6–1(a)(1)), and false imprisonment (OCGA § 16–5–41(a)). The trial court denied Ellis's motion for new trial, as amended. Ellis now appeals, contending that (1) the evidence was insufficient to support his convictions; (2) the State failed to provide him with information pertaining to the victim's criminal history or mental health status; (3) the trial court erred in admitting Ellis's custodial statements; (4) the trial court erred in denying his motion for mistrial where certain portions of the jury charge were allegedly interrupted by courtroom distractions; (5) he was denied a fair trial because the courtroom deputy allegedly made inappropriate gestures and facial expressions in front of the jury; (6) the trial court erred in excluding witness testimony regarding the victim's prior false allegations of sexual misconduct; (7) the trial court erred in failing to allow Ellis to present evidence in mitigation of his sentence; and (8) the trial court erred in denying his motion for new trial based on Ellis's claims of ineffective assistance of counsel. For the reasons set forth below, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Footnote omitted.) Goss v. State, 305 Ga.App. 497, 699 S.E.2d 819 (2010). “It is solely within the purview of the factfinder to weigh conflicting evidence and judge the credibility of the witnesses.” (Footnote omitted.) Benyard v. State, 311 Ga.App. 127, 714 S.E.2d 746 (2011).

So viewed, the evidence shows that the victim was Ellis' ex-girlfriend at the time of the relevant incident, April 17, 2008. On that day, the victim was returning to her mother's home, where she resided at the time, when Ellis jumped into her vehicle with a crowbar-type weapon and grabbed the victim's face. When the victim's mother heard her screaming, she came out of the house and proceeded to engage in a “tug-of-war” with Ellis to get the victim out of the vehicle. The victim's mother was ultimately successful, whereupon the victim and her mother ran into the house, and the victim went to call 911. Ellis followed them into the house, kicked the door in, and grabbed a knife from the kitchen. When Ellis raised the knife to the victim's mother, the victim offered to leave with Ellis to prevent him from doing any harm to her mother. Ellis pushed the victim's mother to the ground and left with the victim; the victim's mother then called the police.

Ellis took the victim to his father's house in Henry County. Ellis held the victim in a back bedroom and ordered the victim to take her clothes off. The victim complied because Ellis had a knife in his hand. Ellis initially attempted to have anal intercourse with the victim, but when that proved unsuccessful, Ellis had the victim turn onto her back and held a knife in his hand while he told her to open her legs. Ellis then had vaginal intercourse with the victim against her will. Ellis eventually withdrew his penis from the victim's vagina in order to ejaculate into the victim's mouth. Ellis told the victim to get up and put her clothes back on, and they went into the living room together, where he told the victim to spit out the semen in her mouth. The victim felt that should could not leave the house because Ellis had a knife and she was uncertain about his mental state.

Meanwhile, the police responded to the 911 call placed by the victim's mother. The officers located Ellis and the victim at Ellis's father's house. When an investigator approached the house, Ellis cracked open the door and said he had a gun. Ellis engaged the responding officers in a stand-off that lasted for several hours. Eventually, the officers were able to negotiate the victim's release from the house. Once the victim was released, the police immediately entered the house and took Ellis into custody.

1. Ellis contends that the evidence was insufficient to convict him beyond a reasonable doubt of aggravated assault, aggravated sodomy, rape, and false imprisonment. After viewing the evidence in the light most favorable to the prosecution, the relevant question on appeal is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We address each of Ellis's convictions in turn.

(a) Aggravated assault. The indictment alleges that Ellis committed aggravated assault by making an assault upon the victim with a knife, a deadly weapon, by holding the knife in a threatening manner toward the victim. Ellis claims that the evidence was insufficient to support his conviction on this count because there was no corroboration that Ellis used the knife in a threatening manner and because there was no evidence of a wound to the victim's thighs. Ellis's claims are without merit.

A person commits the offense of aggravated assault when he assaults ¹ with a deadly weapon, when used offensively against a person, is likely to or actually does result in serious bodily injury. OCGA § 16–5–21(a)(2).

The victim testified that Ellis held a knife in his hand when he told her to take her clothes off, and when he told her to open her legs so that he could have vaginal intercourse with her against her will. This testimony alone was sufficient to support the conviction. See OCGA § 24–4–8. The fact that there was no evidence of a wound to the victim's thighs does not change our conclusion. See Gilbert v. State, 209 Ga.App. 483, 484(1), 433 S.E.2d 664 (1993) (“[T]here is no requirement that the victim actually be injured by the deadly weapon before a conviction for aggravated assault is authorized.”) (citation and punctuation omitted).

Ellis also contends that venue was not proven on the aggravated assault charge because some of the evidence was from a different county. This argument is likewise without merit. “Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citation and punctuation omitted.) White v. State, 312 Ga.App. 421, 423(1)(a), 718 S.E.2d 335 (2011). Here, the victim testified that the aggravated assault offense occurred at Ellis's father's house, which was located in Henry County. The responding officer likewise testified that the house was located in Henry County. This testimony was sufficient evidence to prove venue in Henry County.

Finally, Ellis contends that the victim's testimony should be discounted as incompetent because of the victim's potential mental illness.² Even assuming Ellis's claim as true,

a mental disease does not necessarily render a witness incompetent to testify.... If the allegedly incompetent person understands her obligation to tell the truth and is capable of giving material evidence upon the subject matter in question, she is competent to testify, and it is then up to the jury to determine the appropriate weight to give her testimony.

(Citations and punctuation omitted.) Dorsey v. State, 206 Ga.App. 709, 713(3), 426 S.E.2d 224 (1992). Here, there was no indication that the victim did not understand her obligation to tell the truth, and it was therefore up to the jury to determine the credibility of her testimony. See id. Moreover, “absent an objection to competence, [as is the case here,] it is not error to allow a witness to testify without first determining her competence.” (Citation and punctuation omitted.) Austin v. State, 286 Ga.App. 149, 151(1) n. 3, 648 S.E.2d 414 (2007).

Therefore, the evidence was sufficient to support Ellis's aggravated assault conviction.

(b) Aggravated sodomy. The indictment alleges that Ellis committed aggravated sodomy by unlawfully performing a sexual act involving his sexual organ and the victim's mouth. Ellis contends that the evidence was insufficient to sustain his conviction on this count because there was “no evidence of physical trauma or sexual assault to that area.” We disagree.

Sodomy is any sexual act involving the sex organs of one person and the mouth or anus of another. See OCGA § 16–6–2(a)(1). “A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person[.]” OCGA § 16–6–2(a)(2). The victim testified that while holding a knife in his hand, and after having vaginal intercourse with her against her will, Ellis put his penis into her mouth to ejaculate. The victim also testified that she did everything Ellis wanted her to do because she did not feel like she had a choice, specifically pointing to the fact that he had a knife and that she was unsure as to his mental state. Her testimony alone was sufficient to support a finding of guilt beyond a reasonable doubt. See Summerour v. State, 242 Ga.App. 599, 601(1), 530 S.E.2d 494 (2000); Thompson v. State, 203 Ga.App. 339(1), 416 S.E.2d 755 (1992) (citing OCGA § 24–4–8). Contrary to Ellis's contentions, “evidence of physical trauma or sexual assault” to the victim's mouth was not necessary to sustain Ellis's conviction for aggravated sodomy. Cf. Green v. State, 249 Ga.App. 546, 549(1)(b), 547 S.E.2d 569 (2001) (“Proof of penetration is not required for a conviction of sodomy. All that is required is some contact.”) (citations and punctuation omitted). As there is sufficient evidence to support the jury's verdict as to this count, we will not disturb it.

(c) ...