Grant v. State

• Decision Date: 12 March 2014
• Docket Number: No. A13A1794.,A13A1794.
• Citation: 756 S.E.2d 255,326 Ga.App. 121
• Court: Georgia Court of Appeals
• Parties: GRANT v. The STATE.

326 Ga.App. 121

756 S.E.2d 255

GRANT

v.The STATE.

No. A13A1794.

Court of Appeals of Georgia.

March 12, 2014.

Steven Lee Sparger, Savannah, for Appellant.

Margaret Heap, Dist. Atty., Anna Guardino, Asst. Dist. Atty., for Appellee.

BARNES, Presiding Judge.

Michael Grant appeals his convictions for aggravated assault and fleeing or attempting to elude a police officer. He enumerates five errors, contending first that the State failed to prove venue on the fleeing or eluding count. Grant also argues that the trial court erred in sustaining the State's objection to evidence about the victim's acts of violence against third parties, in allowing the State to present evidence of the witnesses' prior consistent statements, and in sentencing Grant to serve time without parole as a recidivist. He also argues that his trial counsel was ineffective for failing to object to one of the guilty pleas that served as the basis for his recidivist sentence. For the reasons that follow, we reverse the conviction for fleeing and eluding for insufficient evidence of venue, affirm the aggravated assault convictions, and remand for resentencing.

Once a defendant has been convicted, the evidence is construed to support the jury's verdict, and “the defendant no longer enjoys the presumption of innocence.” (Footnote omitted.) Powell v. State, 310 Ga.App. 144, 712 S.E.2d 139 (2011). Furthermore, we do not weigh the evidence or determine witness credibility but only resolve whether “the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” Id. As long some competent evidence supports the essential elements of the State's case, we must uphold the jury's verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence showed that Grant was a restaurant manager and got into an argument with the short order cook, who was the restaurant co-owner's son. After Grant and the cook exchanged words, Grant said, “Now I got [sic] something for you,” and walked out of the front door. He got into his car, drove around the restaurant, and came in the back door holding a handgun behind his leg, covered with a towel. When the cook turned to look at him, Grant shot him in the hand, then shot him several more times in the legs. Grant pistol-whipped the cook until both men fell to the ground. After a struggle, the cook got to his feet and Grant shot him twice more as the cook made his way out the front door and again fell to the ground.

A customer intervened as Grant approached the victim again and Grant got into his car and drove away. The cook was transported to the emergency room, where he was treated for multiple gunshot wounds in his hand, arm, pelvis, and leg. He underwent immediate “damage control” surgery to repair his bladder, his intestine, and a large vein in his pelvis that was bleeding into his abdominal cavity. After 36 hours in the ICU, the cook underwent further abdominal surgery, followed by numerous additional operations to repair other damage.

A police officer with the Savannah–Chatham Metro Police Department (SCMPD) testified that he was looking for Grant's car in response to a be-on-the-lookout when Grant drove past him traveling in the opposite direction. The officer turned around, caught up with Grant at a red light, and hit his blue lights and siren for one “quick whoop” to make a traffic stop. Grant turned and looked at the officer, then took off at a high rate of speed with the officer following. The officer finally lost sight of the car briefly in a residential neighborhood. Shortly after that, Grant stopped his car, got out, and was apprehended by other SCMPD officers.

After Grant was arrested, he indicated to one of the officers that he wanted to talk about the incident. After being advised of his rights, Grant told the officer in a recorded discussion played for the jury that he did not know why he shot the cook and did not want to do it, but the cook had been coming into the restaurant every day angry about something. A few weeks before the cook had “jumped on his girlfriend” in the store, Grant said, and the day before he had been “cussing and hollering at his mama.” The day of the shooting, the cook began talking about Grant to his mother and the two men began to argue. He told the arresting officer that he shot the cook four or five times, and he emphasized, “I shot him low. I didn't shoot him in the groin. I just put some lube in his ass.”

Grant was acquitted of criminal attempt to commit murder. He was convicted of aggravated assault by shooting the cook with the intent to murder him, of aggravated assault by shooting the cook with a deadly weapon, and for fleeing and eluding a police officer.¹

1. Although Grant did not specifically challenge the sufficiency of the aggravated assault convictions, the evidence as outlined above was sufficient to sustain them. To authorize a conviction for aggravated assaultwith intent to murder, the State must show that the defendant acted with the deliberate intent to kill at the time of the assault, which the jury may infer from “the nature of the instrument used in making the assault, the manner of its use, and the nature of the wounds inflicted.” (Citations and punctuation omitted.) Tanner v. State, 86 Ga.App. 767(1), 72 S.E.2d 549 (1952). In this case, evidence that Grant deliberately shot the cook in the back multiple times as the cook tried to get away was sufficient to authorize the jury to find Grant guilty of assault with intent to murder. Moody v. State, 279 Ga.App. 440, 443(1), 631 S.E.2d 485 (2006).

As to the second assault count, the State is not required to prove specific intent when charging someone with aggravated assault by means of a deadly weapon; rather, the State need only prove a general intent to injure. Barnes v. State, 296 Ga.App. 493, 495, 675 S.E.2d 233 (2009). The evidence in this case was sufficient for a rational trier of fact to find that Grant had the requisite intent to commit aggravated assault based on his words, conduct, and demeanor.

2. Grant argues that the State failed to present evidence of venue to sustain the conviction for fleeing or attempting to elude a police officer. Grant was charged with and convicted of the offense of fleeing or attempting to elude in Chatham County in violation of OCGA § 40–6–395(a), which makes it “unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.”

The evidence showed that the shooting occurred at a restaurant located in Chatham County, and that afterward Grant left the scene in his car. Several police officers gave extensive testimony identifying the streets over which they traveled in their successful pursuit of Grant. After his arrest, Grant told a detective which streets he had driven down and the location where he threw his gun from the car window. But neither Grant nor the officers identified the county where Grant refused to stop when signaled to do so or the county or counties through which the chase occurred.

Criminal actions must generally be tried in the county where the crime occurred. OCGA § 17–2–2(a). When a defendant pleads not guilty, the State must prove every element of the charged crime, including venue, beyond a reasonable doubt. Jones v. State, 272 Ga. 900, 902–903(2), 537 S.E.2d 80 (2000). It may prove venue “by whatever means of proof are available to it,” including both direct and circumstantial evidence. Id. When a crime is committed in a vehicle traveling within this state, “and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the ... vehicle ... has traveled.” OCGA § 17–2–2(e).

The State argues here that it proved venue for this count under OCGA § 17–2–2(h), which provides: If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” “The purpose of [subsection (h) ] is to provide for establishment of venue in situations in which there is either some doubt as to which county was the scene of the crime or where the crime in fact occurred in more than one county.” Bundren v. State, 247 Ga. 180, 180(1), 274 S.E.2d 455 (1981).

But the offense of eluding an officer is complete when a defendant refuses to stop his vehicle despite visual and audible signals to do so. Mack v. State, 283 Ga.App. 172, 173(1), 641 S.E.2d 194 (2007). In this case, the location where Grant refused to stop when signaled to do so was known. The officer from whom Grant fled could have established which county they were in when Grant refused to stop his car, and any of the officers could have identified the county or counties through which Grant was pursued and taken into custody, but they were never asked to do so. The evidence did not establish that it was difficult to determine where the crime was committed, or that the crime could have been committed in more than one county; the State simply failed to present any evidence about counties except that the shooting took place in Chatham County.

The State argues that testimony identifying which streets Grant traveled and that the officers worked with the SCMPD was sufficient, noting that Grant did not move for a directed verdict on the issue of venue. It also argues that the evidence of venue was not conflicting and that under these circumstances slight evidence was sufficient to prove venue. But our Supreme Court in Jones specifically held in 2000 that “slight evidence” is not sufficient to prove venue, that venue is an...