Harris v. State

• Decision Date: 01 February 2007
• Docket Number: No. A06A1904.,A06A1904.
• Citation: 283 Ga. App. 374,641 S.E.2d 619
• Parties: HARRIS v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 374

641 S.E.2d 619

HARRIS v. The STATE.

No. A06A1904.

Court of Appeals of Georgia.

February 1, 2007.

Jonathan R. Melnick, Atlanta, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

BERNES, Judge.

A DeKalb County jury found Melvin Harris (a.k.a., Melvin Parks) guilty of rape, two counts of aggravated assault, and possession of a firearm by a convicted felon. Following the denial of his motion for new trial, Harris appeals his conviction, arguing that there was insufficient evidence to convict him, and that the trial court erred in allowing testimony that he had previously been in prison and expert testimony concerning common misconceptions associated with rape. Harris also argues that he was denied effective assistance from his trial counsel. For the reasons discussed below, we affirm.

"It is well established that on appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility." (Citation and punctuation omitted.) Massey v. State, 278 Ga.App. 303(1), 628 S.E.2d 706 (2006).

Viewed in this light, the evidence adduced at trial shows that Harris raped the victim in order to intimidate her and get revenge for allegations she made to the police that he had inappropriately touched her minor daughter. At the time of the alleged incident, the victim lived in a private residence in DeKalb County with her three children, including her ten-year-old daughter, Sonia. While Harris and the victim had previously been involved in a brief intimate relationship, they were no longer seeing each other romantically at that time.

On Monday, February 9, 2004, Harris and the victim spoke on the phone, and the victim invited Harris to ride around with her as she took her children to dance class and basketball practice, since she wanted to tell him about her new job. Harris accepted the invitation, and the victim along with her three kids picked him up in her van.

Harris and Sonia subsequently got into an argument over who would sit in the front passenger seat. When Sonia would not move from the seat, Harris began poking and touching her. Sonia eventually moved to the back of the van, and Harris got into the front passenger seat. Following the altercation, the victim dropped Sonia off at her dance class and her son at basketball practice. The victim then dropped Harris off at her house while she ran an additional errand.

When the victim picked up Sonia from her dance class, Sonia told the victim that during the argument over who would sit in the front passenger seat, Harris had touched and rubbed her backside. The victim then picked up Harris from her house and drove him home after he denied having inappropriately touched Sonia. After dropping off Harris, the victim asked Sonia what she wanted to do. Sonia said that Harris was lying and that "she wanted to go tell the police." Consequently, the victim took Sonia to the police station, where Sonia and she spoke with an officer. The victim told the officer Harris' first name and cell phone number, but she did not know his last name or address. In the victim's presence, the officer called Harris on his cell phone. During the call, the officer informed Harris that the victim was at the police station making a police report on him.

The victim got back home around 11:00 p.m., put her children to bed, and talked for a while on the phone. Suddenly, the victim saw Harris in the hallway with a gun in his hand, and she began to scream. Harris looked at the victim and said, "Shut up, shut up, don't move, you do, I shoot you, I kill you." Quickly approaching her, Harris then put the gun up to the victim's head, threatened to kill her and her children, and told her "I'm fixing to have sex with you." When the victim said no, Harris "clicked the gun back like he [was] fixing to shoot it," and out of fear for her life, the victim said "all right." Harris then had sex with the victim, keeping the gun to her head the entire time.

During the rape and assault, Harris told the victim that he was doing this because he was "just not fixing to go back to jail." The rape and assault were to let her know that and to get her back for the allegations made to the police. Harris also told the victim that he was going to get away with the rape because her children had not heard anything and there was no other evidence showing that a rape had occurred. Harris also told her that he had lawyers and sheriffs in his family, that his family had lots of money, that he had family members who were "behind him" no matter what he did, and that as a result he would win in court if she tried to have him prosecuted.

Harris stayed at the victim's home the entire night and had her drive him home the next morning. Later that morning, the victim went to the police station and reported what had happened. The victim then went to the hospital for a physical examination. Analysis of samples taken from her vagina revealed the presence of sperm. The DNA of the sperm matched the DNA of blood samples later taken from Harris.

Harris was arrested on February 18, 2004. At the time of his arrest, Harris had a loaded handgun on his person, although he had previously been convicted of voluntary manslaughter.

1. Harris claims that there was insufficient evidence to convict him of rape and possession of a firearm by a convicted felon.¹ We disagree. Viewed in a light most favorable to the verdict, the evidence adduced at trial was sufficient to authorize a rational trier of fact to find Harris guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(a) Rape. "Under OCGA § 16-6-1(a)(1), a person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will." (Punctuation omitted.) Jenkins v. State, 259 Ga.App. 87, 88(1), 576 S.E.2d 68 (2003). At trial, the victim testified that Harris held a gun to her head and forced her to have sex with him against her will. This testimony was sufficient, in and of itself, to sustain Harris' conviction of rape. See Perry v. State, 154 Ga.App. 385, 268 S.E.2d 747 (1980).

(b) Possession of a Firearm by a Convicted Felon. Pursuant to OCGA § 16-11-131(b), "[a]ny person who has been convicted of a felony by a court of this state and who possesses any firearm commits a felony." (Citation and punctuation omitted.) Simpson v. State, 213 Ga.App. 143, 144(1), 444 S.E.2d 115 (1994). During the guilt/innocence trial on the rape and aggravated assault charges, the victim testified that Harris pointed a loaded handgun at her head as he raped her, and the arresting officer testified that Harris had a loaded handgun on his person at the time of his arrest. After Harris was found guilty of those offenses, a separate guilt/innocence trial was held on the firearm possession charge, where the state introduced into evidence, without objection, a certified copy of Harris' guilty plea and sentence for the crime of voluntary manslaughter. This testimonial and documentary evidence from the combined proceedings sufficiently established that Harris was guilty of possession of a firearm by a convicted felon. See Walker v. State, 281 Ga. 157, 165(10)(c), 635 S.E.2d 740 (2006); Morrison v. State, 272 Ga.App. 34, 44(8)(a), 611 S.E.2d 720 (2005).

2. Harris argues that the trial court erred in allowing the state to elicit testimony from a detective that Harris had previously been in prison, which he contends constituted improper character evidence. Again, we disagree.

As noted above, the victim testified that Harris told her that he was raping her in order to let her know that he was not going to go back to jail and to get her back for the report she and Sonia made to the police. Later during the trial, the state called one of the detectives involved in the case, who was asked whether she had determined from a background check that Harris had been in prison. The detective answered in the affirmative. Defense counsel objected to this testimony and moved for a mistrial. The trial court denied the motion but gave a limiting instruction to the effect that the detective's testimony could only be considered for purposes of showing Harris' motive and the victim's credibility.

We conclude that the trial court properly allowed the detective's testimony and denied the request for a mistrial. The testimony supported the state's theory that Harris' fear of returning to prison motivated him to rape the victim in order to intimidate her and "get back at [her]" for the report made to the police. As such, the testimony "was relevant to show motive[,] and such evidence was not rendered inadmissible by the fact that it may have incidentally placed [Harris'] character[ ] at issue." (Footnotes omitted.) Napier v. State, 276 Ga. 769, 773(3), 583 S.E.2d 825 (2003) (evidence that defendant had been in prison and had escaped was admissible to prove motive). See also Loughridge v. State, 201 Ga. 513, 515-516(3), 40 S.E.2d 544 (1946) (same); Ware v. State, 273 Ga. 16, 17(2), 537 S.E.2d 657 (2000) (evidence of defendant's disciplinary problems was admissible to prove motive).

Harris relies upon Racquemore v. State, 204 Ga.App. 88, 418 S.E.2d 448 (1992), to support his argument that the detective's testimony was inadmissible. In that case, a store manager testified that after he caught the defendant shoplifting, the defendant told him that he was on probation and was living at a half-way house. Id. at 88(2), 418 S.E.2d 448. There was no evidence that the defendant's probationary status was a motive for the shoplifting. Id. at 88-89(2), 418 S.E.2d 448. We therefore held, among other things, that the store manager's testimony was not material or...