Hooker v. State, A05A1881.
| Decision Date | 23 March 2006 |
| Docket Number | No. A05A1881.,A05A1881. |
| Citation | 278 Ga. App. 382,629 S.E.2d 74 |
| Parties | HOOKER v. The STATE. |
| Court | Georgia Court of Appeals |
Louis M. Turchiarelli, Marietta, for Appellant.
Garry T. Moss District Attorney, Lawton W. Scott, Assistant District Attorney, for Appellee.
Following the denial of his motion for new trial, Reginald Leonard Hooker appeals his convictions for aggravated assault, criminal trespass, and obstruction of a 911 call. Hooker complains of numerous alleged errors on appeal; however, upon our review we discern no reversible error and affirm his convictions.
1. Hooker challenges the sufficiency of the evidence. On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and a defendant no longer enjoys the presumption of innocence. Walker v. State, 245 Ga.App. 693, 538 S.E.2d 563 (2000).
So viewed, the evidence demonstrates that on April 3, 2003, Hooker approached a Home Depot employee with several brass electrical outlets that he wanted to return. He did not have a receipt for the items, so the employee called a supervisor. Hooker became irate and accused the employee of being racist. The head cashier arrived to handle the transaction, but denied Hooker's return. Hooker was very aggressive and appeared agitated and angry. He demanded to see a manager, so the cashier called Joe Farley, the loss prevention manager, to handle Hooker's complaint. Hooker exchanged words with Farley and called him a "cracker mother-fucker." Farley told Hooker to leave the store and walked away, but Hooker followed him and refused to leave. Farley picked up the telephone to call 911, but Hooker grabbed the phone from him and slammed it down on the counter. Hooker pushed the bag of brass plates in Farley's face, the men fell to the floor and Hooker punched Farley in the face with his fist. The brass plates cut Farley near his eye, and his glasses cut the bridge of his nose after Hooker hit him.
As long as there is some competent evidence to support each fact necessary to make out the state's case, we will uphold the jury's verdict. Grier v. State, 218 Ga.App. 637, 638(1), 463 S.E.2d 130 (1995). Contrary to Hooker's contention, the state's evidence sufficiently established that he was guilty of aggravated assault under OCGA § 16-5-21(a)(2). The indictment alleged that Hooker assaulted the victim "by striking him in the face with metal plates and fists, objects... likely to result in serious bodily injury." It was unnecessary to further allege that defendant used the plates or his fist as deadly weapons or that there was an intent to injure. See Gafford v. State, 240 Ga.App. 251, 252-253(1), 523 S.E.2d 336 (1999). The evidence also supported the convictions for criminal trespass, OCGA § 16-7-21(b)(3) (), and obstruction of a 911 call, OCGA § 16-10-24.3; Weaver v. State, 256 Ga.App. 573, 574(1), 568 S.E.2d 836 (2002).
2. Hooker contends the trial court erred by admitting evidence of a prior aggravated assault as a similar transaction because it was not sufficiently similar to the present charge.
Evidence of independent crimes is admissible
if the state makes three showings: (1) that the evidence is offered, not to raise an improper inference regarding the character of the defendant, but for a proper purpose; (2) that there is sufficient evidence that the defendant committed the independent act; and (3) that there is sufficient similarity between the independent act and the charged offense to demonstrate that the independent act is logically relevant to a material issue in dispute in the trial. See Williams v. State, 261 Ga. 640, 642, 409 S.E.2d 649 (1991).
Mitchell v. State, 265 Ga. 71, 71-72(2), 453 S.E.2d 731 (1995).
After a hearing held pursuant to Uniform Superior Court Rules 31.1 and 31.3, the trial court found, pursuant to Williams v. State, supra, that there was sufficient similarity between the earlier offenses and the present offense so that the former tended to prove the latter, and the former was admissible to show intent, and that the probative value outweighed any of its undue prejudicial effect. We agree. In both cases, Hooker approached a Home Depot employee, accused the employee of being racist, called the employee a "cracker," became aggressive and ended up in a physical altercation with the employee. In the case here, he hit the employee with his fist and brass plates; in the first incident he lunged at the employee with a box-cutter.
Although Hooker contends that the crimes were too dissimilar because the similar transaction involved shoplifting, he was not alone, and he was outside the Home Depot when he was approached by an employee, (Citation and punctuation omitted.) Huff v. State, 248 Ga. App. 233, 546 S.E.2d 24 (2001). A trial court's admission of similar transaction evidence will be upheld on appeal unless the ruling is clearly erroneous. Garrett v. State, 253 Ga.App. 779, 781(3), 560 S.E.2d 338 (2002). Under this standard, there was no error in admission of the similar transaction evidence.
3. Hooker next contends that the trial court erred in refusing to declare a mistral after the state called him a "dangerous man" in its opening statement. According to Hooker, this was an improper comment on his character.
During the opening statement, the state commented that "the evidence will show that [Hooker] is a dangerous man." Hooker objected, and a conference was held outside the presence of the jury that was not transcribed. Both sides then continued with their opening statements, at the conclusion of which, Hooker approached the trial court and requested that the record be perfected with his objection to the state's comment that Hooker was a "dangerous man" because it improperly introduced character evidence. He also moved for a mistrial. The trial court recalled that it had sustained Hooker's objection to the comment because "it was becoming argumentative," not for improperly injecting character. Hooker renewed his motion for mistrial, and asked for a curative instruction. The court asked Hooker what precautionary instruction he would like, and Hooker responded that "I would like the Court to address the fact that Ms. Scott's statements with regard to him being a dangerous man is close to injecting character in this case." The court replied that the statement
does not inject character. It's an inference from the evidence, but we're not supposed to be doing that in opening statements, so I don't think it's really a character issue at all.... [The state's] going to argue the same thing at the end and she would be permitted to do so. So unless you tell me something else that you want to give in precautionary instructions, I don't know that it's really appropriate.
Generally, "[a] prosecuting attorney in an opening statement may state what he expects in good faith the evidence will show during trial of the case." Ross v. State, 233 Ga.App. 26, 27(1), 503 S.E.2d 308 (1998). Moreover,
Counsel is permitted, in the sound discretion of the court, to argue all reasonable inferences and deductions which may be drawn from the evidence.... What the law forbids is the introduction into a case by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair.... [F]igurative speech is a legitimate weapon in forensic warfare so long as the facts upon which it is founded are in evidence.
(Citations omitted.) Haas v. State, 146 Ga. App. 729, 730(2), 247 S.E.2d 507 (1978).
The purpose of the opening statement is to give the jury and the court an outline of the evidence that the party anticipates presenting, whereas the purpose of the closing argument is to recount the evidence presented and suggest the conclusion demanded by that evidence. Williams v. State, 218 Ga.App. 571, 573(2), 462 S.E.2d 457 (1995). While the inference that Hooker was a "dangerous man" was a conclusion that should have been reserved for closing once the evidence was presented, we find that the state's use of the term "dangerous man" was not an improper comment on Hooker's character and drew no unreasonable or improper inferences. Thus, we discern no abuse of discretion in the trial court's refusal to grant Hooker's motion for mistrial.
However, even assuming that the term was improper, reversal of Hooker's conviction is not warranted. The test for reversible error is whether the argument, even if improper, in reasonable probability changed the result of the trial. Bright v. State, 265 Ga. 265, 285(19)(a), 455 S.E.2d 37 (1995). Because of the overwhelming evidence of Hooker's guilt, we conclude that, even assuming the term "dangerous man" was objectionable, there is no reversible error. Id.
4. Hooker also asserts that the trial court erred by not declaring a mistrial when the officer...
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