Hall v. State

• Decision Date: 08 July 2008
• Docket Number: No. A08A1318.,A08A1318.
• Citation: 664 S.E.2d 882,292 Ga. App. 544
• Parties: HALL v. The STATE.
• Court: Georgia Court of Appeals

292 Ga. App. 544

664 S.E.2d 882

HALL v. The STATE.

No. A08A1318.

Court of Appeals of Georgia.

July 8, 2008.

Charles H. Frier, Smyrna, for appellant.

Paul L. Howard Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Terry Hall (a/k/a Bernard McCoy) was convicted of rape,¹ kidnapping,² aggravated assault,³ terroristic threats,⁴ and two counts of theft by taking (one felony and one misdemeanor).⁵ He appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in (i) denying his motion for directed verdict of acquittal as to the charges of aggravated assault and terroristic threats; (ii) failing to merge his convictions of aggravated assault and theft by taking of a motor vehicle; (iii) failing to merge his convictions of theft by taking of a motor vehicle and theft by taking of the victim's purse; (iv) sentencing him to life without parole on the rape conviction; and (v) failing to find that his trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm Hall's convictions but vacate his sentence on the misdemeanor theft by taking count and remand the case for resentencing.

"On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction." (Punctuation omitted.) Chambers v. State.⁶ In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State.⁷ We do not weigh evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia.⁸

So viewed, the evidence shows that around 12:30 a.m. on June 25, 2002, J.V. exited a MARTA train at the Lindbergh station after having ridden the train from the airport. Upon reaching her car in the MARTA parking deck and opening the car's door, Hall tackled her from behind and pushed her facedown across the front seats. As J.V. struggled, Hall demanded her car keys. As she continued to struggle, Hall put his hands over her mouth and nose and around her neck and began choking her until she momentarily lost consciousness. When she awoke a few moments later, Hall forced J.V. into the car's trunk and drove out of the parking deck. After driving around for some time, Hall parked in a remote area behind a building, pulled J.V. out of the trunk, and raped her. He then forced her back into the trunk and began driving again.

A few hours later, Hall stopped a second time, opened the trunk, and demanded that J.V. tell him the PIN for her credit card so that he could use it to withdraw cash from her account. When she responded that the credit card did not have a PIN, Hall accused her of lying and threatened to lock her in the trunk and set her car on fire if she did not give him the number. J.V. gave Hall the PIN to her bank card, but when he was unable to withdraw cash using that card, she convinced him to let her call her credit card company to set up an emergency PIN for her credit card account. Using that number, Hall made two large withdrawals from that account.

As daylight approached, Hall drove to an abandoned house, forced J.V. inside, and bound her with tape. He then told her that he was leaving but that he would return. Within minutes of Hall leaving, J.V. managed to free herself and exit the house. Eventually, she found a busy road and called the police from a convenience store. When the police arrived, J.V. was visibly upset and appeared to have several minor injuries, but she was able to give the police a description of her car and was also able to lead them to the abandoned house where Hall had left her. Later that day, the police spotted Hall driving J.V.'s car. Upon his arrest, Hall was found to be in possession of J.V.'s cell phone, her credit card, and over $400.

Hall was indicted on charges of rape, kidnapping, aggravated assault, terroristic threats, theft by taking of the victim's motor vehicle, and theft by taking of the victim's purse. At trial, J.V. recounted the entire incident, and a Georgia Bureau of Investigation forensics expert testified that DNA samples obtained from a physical examination of J.V. conclusively matched DNA samples taken from Hall after his arrest. After the State rested its case, Hall moved for a directed verdict of acquittal, but the court denied his motion. Hall testified in his own defense and denied all charges. At the trial's conclusion, the jury found Hall guilty on all counts of the indictment, and he was sentenced, under the recidivist statute (OCGA § 17-10-7), to life imprisonment without parole, plus 60 years. Subsequently, Hall obtained new counsel and filed a motion for new trial, which the court denied after a hearing. This appeal followed.

1. Hall contends that the trial court erred in denying his motion for directed verdict of acquittal on the aggravated assault charge. Based on the insufficiency of the evidence supporting this conviction, Hall argues that the State failed to prove that he intended to injure the victim, or that he choked her. He further contends that the State failed to prove that his actions were likely to result in serious bodily injury to the victim. We disagree.

OCGA § 16-5-21(a)(2) provides in relevant part: "[a] person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury...." "The use of hands to choke a victim satisfies the deadly weapon or dangerous object element of the aggravated assault statute." Crider v. State.⁹

In this matter, the indictment charged Hall with committing an "assault upon the person of [J.V.], by choking [J.V.] with [his] hands, a means likely to cause serious bodily injury when used offensively against a person...." Contrary to Hall's contention, J.V. testified that Hall had a hand around her neck and was strangling her in addition to placing his hand over her mouth and nose. "[T]he victim's testimony on this issue was sufficient to sustain the conviction, and the jury was authorized to resolve the evidentiary conflicts in the victim's favor." Moody v. State.¹⁰

Hall's argument that the State failed to prove that he intended to injure the victim is also without merit. "Aggravated assault committed by means of a deadly or offensive weapon, unlike aggravated assault committed with the intent to murder, rape, or rob, does not require a specific criminal intent." (Punctuation omitted.) Riels v. State.¹¹ "[T]he state was required to prove only a general intent to injure." (Punctuation omitted.) Id. J.V.'s testimony that during the altercation with Hall, she could not breathe and, in fact, briefly lost consciousness, was evidence of such intent. Thus, the evidence was sufficient to support Hall's conviction of aggravated assault, and the trial court did not err in denying Hall's motion for directed verdict of acquittal on that charge. See Moorer v. State.¹²

2. Hall contends that the trial court erred in denying his motion for directed verdict of acquittal on the terroristic threats charge, arguing that the evidence was insufficient to support his conviction. Specifically, Hall contends that the State failed to prove that his threats were intended to terrorize the victim and failed to corroborate the victim's testimony. We disagree.

OCGA § 16-11-37(a) provides: "A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence ... with the purpose of terrorizing another.... No person shall be convicted [of the offense] on the uncorroborated testimony of the party to whom the threat is communicated." In this matter, the indictment accused Hall of committing terroristic threats specifically by threatening to burn J.V.'s car with her locked in the trunk. The State was therefore required to prove two elements: (1) that Hall made the alleged threat and (2) that he did so with the purpose of terrorizing her. Nelson v. State.¹³ Here, J.V. testified that Hall threatened to lock her in the trunk and burn her car if she did not provide him with the PIN for her credit card account. "If properly corroborated, this evidence was sufficient to prove both elements of the charged offense beyond a reasonable doubt." Id.

Contrary to Hall's argument, J.V.'s testimony was corroborated despite the fact that no one other than J.V. heard Hall's threats. "[S]light circumstances may provide sufficient corroborating evidence. The quantum of corroboration need not in itself be sufficient [evidence], but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged." Denson v. State.¹⁴ See Pringle v. State.¹⁵ "Corroboration can consist of the victim's demeanor after the threat is communicated." (Punctuation omitted.) Nelson, supra, 277 Ga.App. at 97(1)(c), 625 S.E.2d 465. Here, the police officer who responded to J.V.'s 911 call testified that she was upset and nervous, and that he tried to calm her down when he arrived on the scene. He also testified that J.V. had bruises and scratches on her body and that her clothes were dirty. In addition, the fact that J.V. called her credit card company to set up the emergency PIN, and the fact that Hall made actual withdrawals from that account, were evidence of Hall's threat. The officer's testimony and the records of her call to her credit card company amply corroborated J.V.'s testimony, and thus the evidence was sufficient for a rational trier of fact to find Hall guilty beyond a reasonable doubt of making terroristic threats. See ...