Hicks v. State

• Decision Date: 27 June 2016
• Docket Number: A16A0071
• Citation: 337 Ga.App. 567,788 S.E.2d 502
• Parties: Hicks v. The State.
• Court: Georgia Court of Appeals

337 Ga.App. 567

788 S.E.2d 502

Hicks

v.The State.

A16A0071

Court of Appeals of Georgia.

June 27, 2016

Weldon Terry Haygood Jr., Rome, for Appellant.

Herbert E. Franklin, Dist. Atty., La Fayette, Leonard Charles Gregor Jr., Asst. Dist. Atty., for Appellee.

Miller

, Presiding Judge.

Following a jury trial, Ernest Lee Hicks was convicted of aggravated assault (OCGA § 16–5–21 (a) (2)

(2013)) and simple battery (OCGA § 16–5–23 (2013)) as a lesser included offense of the aggravated battery charge.¹ Hicks appeals from the denial of his motion for new trial, contending that the trial court erred in (1) admitting his statements to police; (2) admitting evidence of the warrantless search of his residence; and (3) failing to merge his convictions. Hicks also contends that his trial counsel was constitutionally deficient for failing to object to venue for two separately indicted offenses. Upon review, we affirm Hicks's convictions. For the reasons set forth below, however, we vacate Hicks's sentence for simple battery and remand this case for resentencing.

Viewed in the light most favorable to Hicks's convictions,² the evidence shows that Hicks and the victim were involved in a romantic relationship and they lived together for a few months. Hicks had a history of violence and had previously hit the victim in the face and blackened her eye. The victim reported Hicks's violence to police, obtained a temporary restraining order (“TRO”), and stayed away from Hicks for about six months.

In early December 2012, even though the TRO was still in effect, the victim returned to Hicks's residence in Dade County for a few days with the understanding that they would just be friends. On the night of December 11, 2012, the victim gathered her belongings and told Hicks that she was leaving. When the victim started to walk out the door, Hicks, who was very intoxicated, pulled her back by the hair and started beating her with his fists.

Hicks knocked the victim down and choked her until she lost consciousness and started having seizures. Over the next several hours, Hicks beat and choked the victim, resulting in several broken bones in her face

. Hicks also told the victim he had a gun, threatened to kill her, and told her that she was not leaving alive. The victim tried to get away from Hicks, but he would drag her back and continue beating her. Hicks also blocked the front door with a pallet or mattress, and he prevented the victim from using her phone to call for help. Eventually, Hicks took a handful of the victim's prescription Klonopin and passed out. The victim then called 911.

Dade County Sheriff's Officer McCloud received the 911 dispatch call shortly after 9:00 a.m. on December 12, 2012, and responded to the scene. Officer McCloud had previously served the TRO at Hicks's residence and knew about the prior incident between Hicks and the victim. When Officer McCloud arrived at Hicks's residence, he knocked on the door. Hicks heard the knock, pushed the victim back, and opened the door. After Hicks quickly slammed the door closed without saying anything, Officer McCloud radioed for backup and knocked a second time. The door then opened a second time and the victim walked out of the residence. The victim's face was bruised, she had black eyes, and she looked like she had been used as a punching bag. The victim told Officer McCloud what happened and he called for an ambulance. Officer McCloud then walked the victim to his patrol car to wait for the ambulance because it was freezing outside.

Investigator Cole, who also knew Hicks, and who heard the 911 dispatch call, responded to the scene, spoke to Officer McCloud, and observed the victim's injuries. After Investigator Cole arrived, Hicks finally came out of the residence and Officer McCloud spoke to him. Hicks had what appeared to be blood on his hands, as well as blood stains on his shirt, and he smelled of alcohol.³

Hicks asked Officer McCloud if he could go back into the residence to get a few things and lock up. Officer McCloud followed Hicks into the house to make sure no one else was inside. When they came back out, Officer McCloud asked Hicks about the stains on his clothing, and Hicks replied that the stains on his clothing were spaghetti sauce.

1. Hicks contends that the trial court erred in admitting his pre-Miranda⁴

statements to the officers. In his appellate brief, however, Hicks fails to include a single citation to the record, and he points to no specific incriminating statement that he made to the officers. “[Hicks] bears the burden of proving error affirmatively by the record. It is not the function of this court to cull the record on behalf of a party in search of instances of error.” (Citations and punctuation omitted.) Wade v. State , 305 Ga.App. 382, 383, 700 S.E.2d 827 (2010).

The only “statement” Hicks challenged at his suppression hearing was his “spaghetti sauce” comment. On appeal, Hicks failed to argue, and we fail to see, the incriminating nature of this statement. Accordingly, Hicks has not shown that the trial court erred in denying his motion for new trial.

2. Hicks contends that the trial court erred in admitting testimony or evidence concerning a warrantless search of his residence. We discern no error because Hicks has failed to point to evidence showing that the officers searched his home, much less any evidence that was illegally obtained during such a search. Notably, the record shows that Officer McCloud only followed Hicks into the residence to make sure that no one was there after Hicks asked if he could go back inside to get a few things and lock up. Accordingly, this enumeration of error is meritless.

3. Hicks contends that the trial court should have merged his convictions for aggravated assault and simple battery, which was the lesser included offense of the aggravated battery charge. Under the circumstances of this case, we agree.

“Georgia law prohibits multiple convictions if one crime is included in the other.” (Citations and punctuation omitted.) Ledford v. State , 289 Ga. 70, 71, 709 S.E.2d 239 (2011)

. In Drinkard v. Walker , 281 Ga. 211, 636 S.E.2d 530 (2006), the Supreme Court of Georgia set forth the required evidence test for determining whether convictions merge “because one of the crimes was established by proof of the same or less than all the facts that were required to establish the other crime.” (Punctuation omitted.) Id. at 216, n. 32, 636 S.E.2d 530

; see also Regent v. State , 299 Ga. 172, 175, 787 S.E.2d 217, 220 (2016) ; OCGA § 16–1–6. Moreover, under OCGA § 16–1–6 (2), one crime is included in the other where the only difference involves a “less serious injury or risk of injury to the same person ... or a lesser kind of culpability.”

In this case, the aggravated assault charge⁵ required the State to prove that Hicks used his hands as deadly weapons to choke the victim and beat her about the head and face in a manner that was likely to cause or actually resulted in serious bodily harm. As charged, the aggravated battery count required the State to prove that Hicks seriously disfigured the victim's body by striking her about the head and face. The jury, however, found Hicks guilty of the lesser included offense of simple battery, which only required proof that Hicks intentionally made physical contact with the victim or intentionally caused her harm when he struck her about the head and face.⁶ These two...