Joiner v. State, A97A2486

• Decision Date: 10 March 1998
• Docket Number: No. A97A2486,A97A2486
• Citation: 497 S.E.2d 642,231 Ga.App. 61
• Parties: , 98 FCDR 1135 JOINER v. The STATE.
• Court: Georgia Court of Appeals

Page 642

497 S.E.2d 642

231 Ga.App. 61, 98 FCDR 1135

JOINER v. The STATE.

No. A97A2486.

Court of Appeals of Georgia.

March 10, 1998.

Patterson & Patterson, Jackie G. Patterson, LaGrange, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

SMITH, Judge.

Brenda Joiner was convicted following a bench trial in Troup County of DUI and driving with a suspended license. Joiner appeals, raising for the first time on appeal her sole contention that the State failed to prove venue beyond a reasonable doubt. We do not agree.

Criminal actions generally must be tried in the county where the crime occurred. OCGA § 17-2-1(a). Proof of venue is an essential element in proving guilt in a criminal case, and " '[l]ike every other material allegation in the indictment it must be proved beyond a reasonable doubt.' [Cits.]" Thayer v. State, 189 Ga.App. 321, 322(1), 376 S.E.2d 199 (1988). But when the evidence does not conflict and no challenge to venue is made at trial, slight evidence is sufficient to prove venue. Minter v. State, 258 Ga. 629, 373 S.E.2d 359 (1988).

Here, the evidence presented showed that an on-duty officer of the Troup County Sheriff's Office responded to a call concerning a domestic dispute. When he reached the residence where the altercation had occurred, he spoke with Joiner and noticed that she appeared to be intoxicated. Joiner asked him "continuously ... to take her to the store to purchase some type of alcoholic beverage." The officer refused to comply with Joiner's request and told her not to drive. After investigating the altercation, the officer left the residence, drove to a service station, parked his car, and began to prepare his report concerning the incident. While writing the report, he saw Joiner, who waved and smiled at him, drive a vehicle into the same parking lot. Knowing that Joiner had appeared intoxicated and that he had told her not to drive, the officer stopped her, performed field sobriety tests, and arrested her. He also took her to the LaGrange Police Department and administered an Intoxilyzer test.

In this case, as in Hunter v. State, 191 Ga.App. 219, 220, 381 S.E.2d 525 (1989), "the State is at least entitled to an inference" that the officer acted within his territorial jurisdiction, Troup County. There is no contention that he acted outside that jurisdiction, and "[i]t is a well settled principle that public officials shall be presumed to have performed their duties unless clearly proven otherwise." (Citations and punctuation omitted.) Id. This rule has been followed on numerous occasions. See Hamilton v. State, 228 Ga.App. 285, 491 S.E.2d 485 (1997); Sawyer v. State, 217 Ga.App. 406, 409(2), 457 S.E.2d 685 (1995); In the Interest of T.S., 211 Ga.App. 46, 47(2), 438 S.E.2d 159 (1993); Shannon v. State, 205 Ga.App. 831, 834(6), 424 S.E.2d 51 (1992); Beard v. State, 193 Ga.App. 877(1), 389 S.E.2d 384 (1989); Williams v. State, 193 Ga.App. 630, 632(2), 388 S.E.2d 884 (1989). See also Minter, supra (evidence that Griffin police department investigated case satisfied slight evidence requirement).

Joiner does not contend that venue was improper in Troup County but instead argues that the State presented insufficient evidence of venue. She claims the only evidence of venue presented by the State was that the offense occurred on "Vernon Ferry Road." But this case is factually and legally similar to Hunter. Evidence was presented here that the investigating and arresting officer worked for the Troup County Sheriff's Office and was on duty on the day he made the arrest. Further, the officer took Joiner to the LaGrange Police Department to administer the Intoxilyzer test. This evidence was sufficient to permit an inference that the officer was acting with authority and within the scope of his duties, and the evidence therefore supports a finding that the offenses of which Joiner was accused occurred in Troup County. See, e.g., Hamilton, Hunter, Sawyer, Shannon, supra.

We recognize a line of authority that seems to conflict with Hunter, supra. In Calloway v. State, 227 Ga.App. 775, 776(2), 490 S.E.2d 521 (1997), we relied upon Mega v. State, 220 Ga.App. 481, 469 S.E.2d 771 (1996) and concluded that venue in a particular county was not sufficiently shown by the State, even though the investigating officer worked for that county's police department. Calloway, supra. In Mega, the investigating officer similarly testified that she was employed by her county police department, but we cited Perry v. State, 154 Ga.App. 559, 269 S.E.2d 63 (1980), concluding that the State failed to meet its burden concerning venue. In Perry, this Court found the State's evidence of venue in Sumter County insufficient despite evidence concerning the affiliation with the Sumter County Sheriff's Office of the investigating officers and the fact that the officers took defendant to the Sumter County Sheriff's Department. Id.

We believe the correct rule is that found in Hunter, supra, and its progeny. Perry was decided eight years before the Supreme Court issued Minter. And the Court in Minter did rely in part on the investigating officers' affiliation with the Griffin Police Department in concluding that venue in Spalding County was shown by the State. In addition, this Court in opinions such as Perry, Mega, and Calloway required more than the "slight evidence" held sufficient in Minter.

More significantly, refusal to apply the rule found in Hunter--that law enforcement officers investigating a crime generally act with authority and therefore within their jurisdiction--could implicitly lead to an assumption that those officers do not so act. In other words, ignoring evidence that investigating or arresting officers acted within their capacities as agents of particular city or county law enforcement departments raises a logical presumption that those officers acted outside their jurisdiction. We do not believe this Court intended to question the actions of law enforcement officials in this manner. Accordingly, to the extent that Perry, Mega, and Calloway provide authority for the proposition that venue can never be shown by evidence concerning an investigating officer's affiliation with a county or city law enforcement unit, they are overruled. ¹ While we appreciate the dissent's concern that the decisions of this Court not further undermine the reasonable doubt standard in criminal prosecutions, a review of the history of the "slight evidence" rule in Georgia demonstrates that from as early as 1886, our courts have held that slight evidence is sufficient to prove venue when evidence is not in conflict on this issue. See Porter v. State, 76 Ga. 658, 660(2) (1886). See also Baker v. State, 55 Ga.App. 159, 189 S.E. 364 (1937), citing Johnson v. State, 62 Ga. 299, 301(1) (1879) as precedent for the "slight evidence" rule. In Dickerson v. State, 186 Ga. 557, 199 S.E. 142 (1938), the Supreme Court discussed at length the requirements for proving venue. While reiterating the reasonable doubt requirement, the Dickerson Court concluded that the evidence regarding venue was sufficient. Because no evidence was presented indicating that the crime occurred in another county, the Court concluded that "[a]ny such hypothesis [that the crime occurred in another county] would be mere conjecture, unsupported by evidence or any reasonable inference deducible therefrom." Id. at 563, 199 S.E. 142. In light of the history of this debate, the dissent's concern with the perceived erosion of reasonable doubt in this context appears misplaced.

Judgment affirmed.

ANDREWS, C.J., McMURRAY, BIRDSONG and POPE, P.JJ., and BEASLEY, JOHNSON, BLACKBURN and ELDRIDGE, JJ., concur.

RUFFIN, J., dissents.

RUFFIN, Judge, dissenting.

"Everything is simpler than we can think, and at the same time more complicated than we can comprehend...." ¹

Because the "slight evidence" rule, as well as the "any evidence" standard, is improperly eroding the reasonable doubt standard concerning proof of venue, I respectfully dissent.

1. Under both the United States Constitution and the Constitution of Georgia, all criminal cases must be tried where the crime is committed. U.S. Const., Art. 3, Sec. 2, Cl. 3; U.S. Const., Amend. VI; Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. The United States Supreme Court has observed that venue is a matter that touches "closely the fair administration of criminal justice and public confidence in it," and commanded that we do not treat venue as "merely [a matter] of formal legal procedure." United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 250-251, 89 L.Ed. 236 (1944). See also Brinkworth v. State, 222 Ga.App. 288, 289, 474 S.E.2d 9 (1996) (Ruffin, J., dissenting).

In Georgia, it is well established that " 'venue is an essential element in proving guilt in a criminal case' " and thus must be proven beyond a reasonable doubt. ² Thayer v. State, 189 Ga.App. 321, 322(1), 376 S.E.2d 199 (1988), citing Bush v. Chappell, 225 Ga. 659, 660, 171 S.E.2d 128 (1969); Minter v. State, 258 Ga. 629(1), 373 S.E.2d 359 (1988); OCGA § 16-1-5. See also Rowland v. State, 90 Ga.App. 742, 743-744(1), 84 S.E.2d 209 (1954) (venue is a jurisdictional fact that must be proved clearly and beyond a reasonable doubt); Jones v. State, 220 Ga.App. 161, 162(2), 469 S.E.2d 300 (1996) (venue, a jurisdictional fact, must be proven beyond a reasonable doubt); Futch v. State, 90 Ga. 472, 476, 16 S.E. 102 (1892) (again, venue is a jurisdictional fact and must be established clearly and beyond reasonable doubt).

However, coexisting with this well-established principle is the theory that when venue is not contested, slight evidence may be sufficient to prove venue. Rowland, supra; Minter, supra. While the effect of this "slight evidence" rule has been to undermine the reasonable doubt standard, or push it aside, it does not appear that forging a new standard of proof was intended by the appellate courts. For example,...