Johnson v. State, A03A0477.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBLACKBURN, Presiding.
Citation579 S.E.2d 809,260 Ga. App. 413
PartiesJOHNSON v. The STATE.
Docket NumberNo. A03A0477.,A03A0477.
Decision Date19 March 2003


Jeffrey L. Grube, Warner Robins, for appellant.

Kelly R. Burke, Dist. Atty., Katherine K. Lumsden, Asst. Dist. Atty., for appellee. BLACKBURN, Presiding Judge.

Following a jury trial, Ronald Eugene Johnson appeals his convictions for simple assault, battery, aggravated battery, terroristic threats, and multiple counts of stalking, aggravated stalking, and second degree criminal damage to property, all perpetrated against his estranged wife. Johnson contends that: (1) the evidence was insufficient to support the verdicts; (2) certain convictions should have been merged; (3) he received ineffective assistance of counsel; and the trial court erred by (4) denying his motion to recuse, (5) denying his motion for continuance to hire new counsel, and (6) allowing the victim to testify to the amount of damage to her vehicle. For the reasons that follow, we affirm the convictions, but vacate two of the sentences on the basis of merger and remand for resentencing.

1. There was sufficient evidence to support each of the convictions, which were based on seven incidents occurring over a period of fourteen months. In every case, the evidence was sufficient to permit a rational jury to find all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia.1

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State's case, the verdict will be upheld.

Moore v. State.2 We review the crimes in the order in which they occurred.

Count 1, Battery

On May 10, 1996, Deputy Keith Edwards investigated a domestic disturbance at the home of Johnson and Barbara Sutton, Johnson's wife. Sutton had scrapes and bruises on her neck consistent with being choked, and told Edwards that Johnson struck her, choked her, and threw her against a wall. There was ample evidence that Johnson committed battery by "intentionally caus[ing] substantial physical harm or visible bodily harm to another." OCGA § 16-5-23.1(a).

Counts 3 and 4, Stalking and Simple Assault

Johnson was charged with stalking Sutton by following her to her doctor's appointment. He was also charged with aggravated assault based on aggressive driving; that charge resulted in a conviction for the lesser included offense of simple assault.

A person commits the offense of stalking under OCGA § 16-5-90 when he

follows, places under surveillance, or contacts another person [without her consent] for the purpose of harassing and intimidating the other person.... [T]he term "harassing and intimidating" means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

On July 3, 1996, after the couple had separated following another physical altercation, Johnson appeared uninvited at the Heart of Georgia Women's Center, where Sutton was a patient, and demanded to see her. He was loud and hostile, and refused to leave until the Center's director told him the police had been called. Sutton knew Johnson was there and was afraid of him. Johnson followed her in his vehicle after she left the center, yelling at her, impeding her movement, forcing her into oncoming lanes of traffic, and, on several occasions, bumping her car. During this encounter, she was afraid both of him and of wrecking her vehicle. A witness corroborated much of this testimony.

There was sufficient evidence to convict Johnson of stalking. Given Johnson's history of violence toward Sutton, a jury could have found that his actions at the health center were intended to, and did, harass or intimidate her. Johnson's aggressive driving constituted at least simple assault, in that it placed Sutton "in reasonable apprehension of immediately receiving a violent injury" OCGA § 16-5-20(a)(2).

Counts 6 and 7, Stalking and Damage to Property in the Second Degree

On January 25, 1997, Johnson telephoned Sutton and told her to "go out there and look and see what he had did to [Sutton's] car." Sutton observed that her car had been scratched or "keyed" multiple times. Evidence from a body shop employee placed the cost of repair at $1,216. Five days later, Sutton discovered a dead kitten on her front steps; Johnson later called Sutton and told her "the way the cat is, is the way you're going to be."

There was sufficient evidence to find Johnson guilty of stalking Sutton on January 25, in that Johnson contacted Sutton without consent as part of a pattern of behavior intended to harass and intimidate her. See Bogan v. State3 (evidence of later act admitted to prove course of conduct). There was also sufficient evidence Johnson committed second degree criminal damage to property by intentionally damaging Sutton's car, in excess of $500. OCGA § 16-7-23(a)(1).

Counts 9 and 10, Aggravated Stalking and Aggravated Battery

Aggravated stalking is stalking "in violation of a judicial order prohibiting such conduct." State v. Rooks.4 See OCGA § 16-5-91(a). A person commits aggravated battery under OCGA § 16-5-24(a) "when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof."

On February 28, 1997, Sutton had just parked her vehicle at a supermarket when Johnson ran his vehicle into hers. Johnson then approached Sutton, threatened to kill her, opened her door, grabbed and twisted her wrist, and punched her nose, breaking it. As a result of this incident, Sutton's wrist was placed in a splint, and she could not use her arm for two to three weeks. On the date of this incident, a permanent protective order was in effect prohibiting Johnson from contacting Sutton or her family, or touching or damaging her property.

The evidence was sufficient to convict Johnson of aggravated stalking. The evidence was also sufficient to convict Johnson of aggravated battery. The issue of what constitutes disfigurement is for the jury to decide, and the disfigurement need not be permanent. Grace v. State;5 Perkins v. State.6 A broken nose has been held sufficient to prove disfigurement, In the Interest of H. S.,7 and "the temporary reduced use of a bodily member may be sufficient to render it useless." (Punctuation omitted.) Ahmadi v. State8 (broken finger in splint for ten days sufficient evidence of uselessness). Sutton's injuries satisfied two alternative methods of causing bodily harm, and there was sufficient evidence that Johnson inflicted them maliciously. Dunn v. State.9

Counts 11 and 12, Aggravated Stalking and Terroristic Threats and Acts

A person commits terroristic threats and acts when he "threatens to commit any crime of violence ... with the purpose of terrorizing another." OCGA § 16-11-37(a). Corroborating testimony is necessary from someone other than the target of the threat. Id. On March 6, 1997, Johnson drove past Sutton, who was emerging from her vehicle at her grandmother's house, and yelled at her that he was "going to vandalize that one, too." After Sutton entered the house, Johnson returned on foot, confronted Sutton's grandmother, repeated his threat to vandalize the vehicle, and told her Sutton "didn't have long to live," and that he was going to kill both of them. Sutton was in the house but within earshot. A neighbor testified that she heard Johnson state that Sutton did not have long to live.

A protective order was in effect on March 6, and there was sufficient evidence that Johnson violated it by contacting Sutton and her family for the purpose of harassing or intimidating her to support a conviction for aggravated stalking. Johnson's statement that Sutton "didn't have long to live" could reasonably be inferred as a threat to kill Sutton, and the threat was corroborated, providing ample evidence for the terroristic threats conviction.

Counts 13 and 14, Aggravated Stalking and Second Degree Damage to Property

Just after midnight on March 28, 1997, while Sutton was staying at her parents' house, Johnnie Tharpe, Sutton's father, witnessed Johnson come into his yard and spray paint the word "bitch" on Sutton's vehicle. After Johnson completed his act of vandalism, Tharpe woke Sutton and told her what had happened. At about the same time, Johnson was seen by an acquaintance walking from the vicinity of the house. Two days later, after the spray paint was removed, Sutton observed that her vehicle had again been keyed. An employee of a body shop estimated the cost of repair at $2,138. Similar incidents occurred on April 4 and April 7. Sutton testified that Johnson's continual violations of court orders made her fearful.

Johnson was convicted of aggravated stalking for spray painting the vehicle and damage to property for keying it. A protective order was still in effect, and Johnson's act of intruding on Sutton's father's property in the middle of the night and spraying a vulgar and insulting word directed at Sutton was evidence of intent to harass and intimidate in violation of that order. Sufficient circumstantial evidence supported the conviction for second degree damage to property. Johnson took credit for keying another of Sutton's vehicles two months earlier, and just three weeks earlier had promised to vandalize this vehicle. Furthermore, he was...

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