Howard v. State

• Decision Date: 01 February 2017
• Docket Number: A16A1817
• Parties: HOWARD v. The STATE.
• Court: Georgia Court of Appeals

340 Ga.App. 133

796 S.E.2d 757

HOWARD

v.The STATE.

A16A1817

Court of Appeals of Georgia.

February 1, 2017

Jonathan Perry Waters, for Appellant.

Karl David Cooke Jr., Dist. Atty., Jason Michael Wilbanks, Asst. Dist. Atty., for Appellee.

Dillard, Presiding Judge.

In 1987, following a trial, Ernest Howard was convicted on two counts of aggravated assault, one count of kidnapping with bodily injury, and one count of rape. Howard appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting his convictions, arguing that the State failed to prove venue, and maintaining that the trial court erred in denying his claims of ineffective assistance of counsel. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that around 1:00 a.m. on November 8, 1986, C. B. and G. H. set out with a group of friends to a popular unlicensed bar called Jay Wright's in Lizella, Bibb County, Georgia. While there, a young man, ultimately identified as Howard, asked G. H. to dance and offered to buy her a drink, which she refused. After an hour or so, a fight broke out amongst some of the bar's patrons, and, in the confusion that ensued, the friends who had driven C. B. and G. H. to the bar left without them. Seeing that C. B. and G. H.'s friends had stranded them at the bar, Howard offered to drive the women home. The two women accepted Howard's offer and accompanied him to his car, at which point C. B. sat in the front passenger's seat and G. H. sat in the back of the vehicle.

Within a few minutes of leaving the bar, the women realized that Howard was not driving in the direction of their homes. When they asked him to explain this unexpected detour, Howard claimed that he needed to inform his mother that he would be late getting home. But shortly thereafter, Howard drove into some nearby woods via an unpaved, gravel road and stopped the car. Once parked, he reached under the driver's seat to retrieve a large knife, held the knife close to C. B.'s neck, and ordered both women to undress. The women complied, but after doing so, C. B. told Howard that she needed to go to the bathroom and asked if she could exit the vehicle. After finishing, C. B. started toward the car but then suddenly slammed the passenger door shut and fled into the brush.

Howard immediately ordered G. H. to yell for her friend to return to the vehicle, and G. H. complied. But after several minutes, it became apparent that C. B. was not going to return, so Howard left the area and drove around for about three minutes before again parking. Once there, he raped G. H. and afterward told her to put her clothes back on. Howard then drove away from the area, stopped near a school, told G. H. to get out of his car, and then drove off. Eventually, G. H. waved down a passing motorist, who coincidentally had just assisted a police officer in changing another motorist's flat tire. The motorist helped G. H. into his vehicle and returned to where he had assisted the police officer, who at this point was still aiding the other motorist. After G. H. recounted the abduction, the officer made arrangements to have her transported to a hospital.

Meanwhile, after slamming the passenger door of Howard's car and fleeing, C. B. ran for several minutes through brambles and marshy areas before happening upon a group of young men who were camping in a cove on Lake Tobesofkee. Waking the men up, C. B. recounted the abduction and advised that her friend was still being held hostage. Agreeing to help, one of the campers told C. B. to get into his truck, and he started the engine. As he did, he saw headlights illuminate from another vehicle, which appeared to be parked across part of the lake in another cove but was now beginning to move. Believing it to be C. B.'s assailant, the camper drove to the area where he had seen the headlights, but by the time he arrived, there were no other vehicles in sight. Consequently, at C. B.'s request, the camper drove her home.

Although both C. B. and G. H. provided a physical description of their assailant, neither was familiar with Howard, and thus, law enforcement initially made no arrest. But a few weeks later, C. B. was out at a different nightclub when Howard approached her and asked if he knew her from somewhere. Immediately recognizing Howard as her assailant, C. B. lied about knowing him and gave him a fake name. C. B. also refused Howard's offer of a ride home, and while still at the club, a friend told C. B. that she knew Howard, but only by his first name, which she said was Ernest. A few days afterward, another friend informed C. B. of Howard's last name and his place of employment. Subsequently, both C. B. and G. H. went to Howard's workplace, observed him from a distance, and positively identified him as their assailant. The women then informed a detective with the Macon Police Department, who obtained a warrant for Howard's arrest and, in fact, arrested him after he came to the police station for questioning.

Thereafter, the State charged Howard, via indictment, with two counts of aggravated assault with a deadly weapon (one count for each victim),² one count of kidnapping with bodily injury,³ one count of rape,⁴ and two counts of aggravated sodomy (both counts pertaining to G. H.).⁵ The case then proceeded to trial, during which the State presented the foregoing evidence. And at the conclusion of the trial, the jury convicted Howard on both aggravated-assault charges, the kidnapping-with-bodily-injury charge, and the rape charge, but it acquitted him on both aggravated-sodomy charges.

The procedural history of Howard's case following his 1987 conviction can aptly be described as tortuous. His trial counsel filed a timely motion for new trial, which he later amended. On August 8, 1989, the trial court held a hearing on Howard's motion, during which his counsel informed the court that Howard wanted to obtain new counsel and allege claims that his trial counsel rendered ineffective assistance. The trial court denied the majority of Howard's motion, but it agreed to hold a second hearing, in which Howard could assert his ineffective-assistance claims. The court then held this second hearing on September 28, 1989, during which Howard's trial counsel testified regarding his representation.

On November 2, 1989, the trial court issued an order denying Howard's motion for new trial, but it is unclear whether Howard ever received a copy of that order at that time. Over the course of the next 20 years, Howard, for the most part acting pro se , filed numerous motions with the trial court and nearly as many unsuccessful attempts to appeal the denials of those motions. Then, on September 27, 2013, Howard filed a motion for an out-of-time appeal, alleging—as he had done several times previously—that he did not receive a copy of the trial court's November 2, 1989 order until 1992. The trial court denied this motion as moot based on Howard having already filed another notice of appeal regarding other court orders. Howard appealed that order, and this Court vacated the trial court's judgment and remanded the case for a determination of whether Howard had timely received notice of the trial court's November 2, 1989 order. But agreeing with the State that it would be impossible to determine whether Howard timely received the order, the trial court granted Howard's motion for an out-of-time appeal. This appeal follows.

1. Howard contends, generally, that the evidence was insufficient to support his convictions. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.⁶ And in evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only resolve whether "a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."⁷ Accordingly, the jury's verdict will be upheld so long as "there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case[.]"⁸ With these guiding principles in mind, we turn first to Howard's specific challenge in this regard.

Former OCGA § 16–5–21 (a) (2) provided, in pertinent part: "A person commits the offense of aggravated assault when he assaults ... [w]ith a deadly weapon ... which, when used offensively against a person, is likely to or actually does result in serious bodily injury."⁹ Under former OCGA § 16–5–40 (a), "[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will."¹⁰ And "[a] person convicted of the offense of kidnapping shall be punished by ... life imprisonment ... if the person kidnapped shall have received bodily injury[.]"¹¹ Finally, under former OCGA § 16–6–1 (a), "[a] person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will," and "[c]arnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ."

In this case, the State presented evidence that Howard offered to drive the two victims home, but then took them to a remote location and ordered the women to undress while he brandished a knife. Then, after C. B. escaped, Howard drove G. H. to another remote location and forced her to engage in sexual intercourse. Nevertheless, Howard argues that the evidence was insufficient because it was vague and there were some conflicts in the victims' testimony. But it is the role of the jury, not this Court, to "determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence."¹² And here, the jury resolved those conflicts against Howard. Thus, the evidence was...