Fleming v. State

• Decision Date: 02 October 2013
• Docket Number: No. A13A1203.,A13A1203.
• Citation: 749 S.E.2d 54,324 Ga.App. 481
• Parties: FLEMING v. The STATE.
• Court: Georgia Court of Appeals

324 Ga.App. 481

749 S.E.2d 54

FLEMING

v.The STATE.

No. A13A1203.

Court of Appeals of Georgia.

Oct. 2, 2013.

Reconsideration Denied Nov. 6, 2013.

James Kenneth Luttrell, Woodstock, for Appellant.

Jeffrey Matthew Gore, Asst. Dist. Atty., James David McDade, Dist. Atty., for Appellee.

MILLER, Judge.

Following a jury trial, John Fleming was convicted of battery ( OCGA § 16–5–23.1(a) ) and criminal damage to property in the second degree ( OCGA § 16–7–23(1) ). Fleming appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions, the trial court erred in failing to charge on justification as a defense to the crime of criminal damage to property, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

"On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict." (Punctuation omitted.)

Philpot v. State, 311 Ga.App. 486, 716 S.E.2d 551 (2011). So viewed, the evidence showed that the victim lived across the street from Fleming in the Golden Estates Mobile Home Park located in Douglas County. The victim testified that Fleming would frequently play music from his car stereo at a high volume. At first, Fleming would only play loud music on the weekends, but later, he also began playing loud music in the morning during the work week. The victim, who usually got home from work around 4:30 a.m. and went to sleep at about 6:00 a.m., stated that Fleming's loud music would often wake him up around 8:00 a.m.

One morning in January 2007, the victim was awakened by loud music coming from Fleming's car. The victim became irritated and decided to move his truck onto the street directly in front of Fleming's driveway in order to block Fleming's car. About 15 minutes later, Fleming went to the victim's trailer and confronted the victim about his truck. Fleming told the victim to "move your f'ing truck," that he would bust the truck's windows if the victim refused, and then said, "Never mind, I'll move it myself."

Fleming then ran back to his trailer. The victim walked out the front door of his trailer and toward Fleming's trailer in order to keep an eye on Fleming. When the victim saw Fleming trying to pick up a brick, he thought Fleming was going to throw the brick at his truck. The victim then ran toward his truck in an attempt to move it before Fleming damaged it. Just as the victim neared the driver's side rear door, Fleming threw a brick at the truck, hitting the front passenger door and step rail. The victim suffered more than $500 in damages to the truck.

Fleming and the victim then got into a heated argument, whereupon Fleming punched the victim in the face. The victim retreated to his truck, entered the driver-side door, and moved the truck back to his trailer. The victim then called the police and later received medical attention for his injuries, which included cuts on his nose and under his eye.

1. Fleming contends that the trial court erred by failing to charge the jury on justification

as a defense to the offense of criminal damage to property in the second degree because it was his sole defense. We disagree.

Although Fleming refers to a "justification defense" in his brief, he cites to OCGA § 16–3–23, which is the statute that sets out the defense of habitation. While Fleming made a request for a charge on justification, he did not specifically request a charge on the defense of habitation and did not object to the court's instruction that the defense of justification had no relevance to the issue of criminal damage to property.¹ Consequently, we review Fleming's enumeration of error only to determine whether the trial court's failure to include a specific instruction on defense of habitation constitutes plain error. See OCGA § 17–8–58(b) ("Failure to object ... shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties[.]"); Allen v. State, 290 Ga. 743, 744–745(3), 723 S.E.2d 684 (2012).

In determining whether plain error exists, we apply a four-part test. Allen, supra, 290 Ga. at 745(3), 723 S.E.2d 684.

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity [,] or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Id.

Here, although Fleming argues that the trial court was required to charge on his sole defense, even without a request to charge, this requirement only applies where there is slight evidence supporting the theory of the charge. See Arnold v. State, 303 Ga.App. 825, 827(1), 695 S.E.2d 299 (2010). OCGA § 16–3–23 provides: "A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation[.]" (emphasis supplied). The clear language of the statute states that the authorized use of force is to be directed against another person, not against property. Since there is no authority that the defense of habitation applies to the use of force against another person's property, Fleming cannot show that the trial court's failure to include an instruction on defense of habitation was a clear and obvious error.

Even if the habitation defense permitted the use of force against another person's property, as opposed to the person, the charge was nevertheless unwarranted.

[C]ritical to the application of the defense of habitation is the moment in time at which the defendant resorts to ... force and the act being performed by the victim at that moment.... Where there is no evidence that the victim was attempting to enter or attack the habitation at the time he was injured by the defendant, the defense of habitation is not available.

(Citations and punctuation omitted.) Coleman v. State, 286 Ga. 291, 298(6), 687 S.E.2d 427 (2009) ; see also Fair v. State, 288 Ga. 244, 254(2)(a), 702 S.E.2d 420 (2010) ("[G]enerally the use of force in defense of habitation is justified only where there is an unlawful entry.") (emphasis in original). In this case, at the time Fleming threw the brick at the victim's truck, the victim was moving from his trailer toward his truck that was parked in front of Fleming's driveway in an attempt to move it. There was no evidence that the victim was attempting to enter or attack Fleming's habitation at the time Fleming threw a brick at the victim's truck. Indeed, Fleming testified at trial that the reason he threw the brick was to get the victim to move his truck. Therefore, the charge on defense of habitation was not warranted. See, e.g., Coleman, supra, 286 Ga. at 298(6)(a), 687 S.E.2d 427; Philpot, supra, 311 Ga.App. at 489(3), 716 S.E.2d 551. Accordingly, the trial court did not err, much less plainly err, in failing to charge on the defense of habitation.

2. Fleming contends that the evidence was insufficient to support his convictions for battery and criminal damage to property in the second degree, arguing that his actions were justified under the circumstances. We disagree.

(a) "A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another." OCGA § 16–5–23.1(a). The term "visible bodily harm" means "bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts." OCGA § 16–5–23.1(b).

In support of his argument that he was justified in his actions, Fleming cites his own trial testimony in which he stated that after the victim noticed the damage to his truck, the victim called Fleming a racial slur. Fleming testified that he and the victim then approached each other, that he ducked when the victim swung at him, and that he then punched the victim in self-defense.

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself against such other's imminent use of unlawful force. OCGA § 16–3–21(a). But a person is not justified in using force in self-defense if he is the initial aggressor or engages in mutual combat, unless he withdraws from the encounter and notifies the other participant that he is doing so.

(Citation and punctuation omitted.) Muckle v. State, 307 Ga.App. 634, 637(1)(a), 705 S.E.2d 721 (2011). Once evidence of self-defense is presented, the burden is on the State to disprove that defense beyond a reasonable doubt. Id. at 637(1)(a), 705 S.E.2d 721. The question of whether a defendant acted in self-defense is for the jury to resolve. Holmes v. State, 273 Ga. 644, 645(1), 543 S.E.2d 688 (2001).

Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the State disproved Fleming's self-defense claim as to the battery offense. The victim's testimony alone was sufficient to support a finding that Fleming was the aggressor and that he punched the victim without provocation. See OCGA § 24–1–8 ("The testimony of a single witness is generally sufficient to...