Jones v. State

• Decision Date: 13 March 2020
• Docket Number: A19A2224
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 568

841 S.E.2d 112

JONES

v.The STATE.

A19A2224

Court of Appeals of Georgia.

March 13, 2020

Leslie Spornberger Jones, for Appellant.

Kenneth W. Mauldin, Brian Vance Patterson, for Appellee.

McMillian, Presiding Judge.

After a jury convicted Andrew Montez Jones of three counts each of sodomy and sexual battery, two counts of aggravated sodomy, and one count of battery¹ arising from five separate incidents involving college-aged men and the trial court denied his motion for new trial, Jones appeals. Because we find that the evidence supported these convictions, Jones’ assertions of error by the trial court lack merit, and Jones did not receive ineffective assistance of trial counsel, we affirm. However, we vacate the sentences on Jones’ convictions for sexual battery and sodomy and remand for resentencing in accordance with this opinion.

Viewed in the light most favorable to the verdict,² the evidence showed that on December 15, 2015, O. Y., a freshman at the University of Georgia ("UGA"), went with Jones to a bar in downtown Athens where Jones bought the drinks and pressured him into drinking one last drink. Afterwards, O. Y. began feeling sick and dizzy, and he went to the bathroom and vomited. The two men then went to another bar, and the next thing O. Y. remembered was waking up, naked, in Jones’ bed, with Jones on top of him performing oral sex. O. Y. did not consent to Jones’ actions. He pushed Jones off and went into the bathroom to clean himself. After O. Y. got dressed, the men argued, and Jones got "really angry" and punched O. Y. in the face, hitting him repeatedly.

As O. Y. tried to leave Jones’ apartment, Jones began hitting him again. O. Y. was able to escape and sought help at a downstairs apartment, but Jones told him to get back in the apartment, or "I’m gonna kill you." Afraid for his life, O. Y. went back upstairs, where Jones locked the door and tried to take O. Y.’s clothes off. O. Y. resisted, and when Jones "let his guard down," he "made a run for it." O. Y. then reported Jones’ actions to police.

The morning after the incident, O. Y. underwent an examination by a sexual assault nurse examiner ("SANE"), who took swabs and a urine sample for testing. During the exam, the SANE observed blood around O. Y.’s nose and other evidence that supported O. Y.’s statement that he had been in some sort of fight. Testing by the GBI crime lab later showed that O. Y.’s urine was positive for tramadol, a Schedule IV controlled substance and synthetic opium derivative used to treat pain. A special agent for the Georgia Drugs and Narcotics Agency testified that the consumption of alcohol with tramadol may result in increased sedation, drowsiness, and sleepiness, as well as reduced pain sensation, and at higher doses, this combination could cause an individual to black out.

K. V. testified that he met Jones while playing ultimate frisbee as a student at UGA. On July 13, 2013, K. V. went with Jones, and two other ultimate frisbee teammates to a bar in downtown Athens. K. V. was "goaded" by his friends into having a drink called an "inception bomb," which Jones arranged to be given to K. V. for free. Afterwards, K. V. recalled texting a friend, and the next thing he remembered was waking up naked in Jones’ bed with Jones rubbing his penis and performing oral sex. K. V. said he "froze" during this encounter and testified that he had no desire to engage in sexual conduct with Jones. He later felt someone pulling boxer shorts up around him. When K. V. awoke, he was wearing boxer shorts that did not belong to him. He then got up, went downstairs, and asked Jones what had happened. Jones told K. V. that he was intoxicated, had become ill, and vomited on himself, so Jones had washed his clothes.

UGA student C. B. also met Jones while playing ultimate frisbee. On or about November 19, 2013, C. B. ran into Jones at an Athens bar where Jones kept buying him drinks. The two then went to another bar where they continued to drink. C. B. testified that "things got blurry" and he felt "numb" and "limp" after leaving the bar, which had never happened to him before. Jones drove C. B. to his apartment and offered him the bed. Jones then got into bed with C. B., who was "feeling really bad," and he started making sexual advances, while C. B. "[had] to continuously go to the bathroom to vomit." Jones tried to take off C. B.’s clothes and to do things that he "was not wanting ... or anything like that." When Jones placed his mouth on C. B.’s penis, C. B. tried to push Jones off, but he was unsuccessful because "I couldn’t control my body, I couldn’t fight back. I could try to put my hands up, that kind of thing, but, um, for the most part everything was just too hard to focus on, um, because I – my mind just wasn’t working." When C. B. confronted Jones the next morning, Jones said nothing had happened and that C. B. was wrong if he thought it had. After this incident, C. B. immediately quit the ultimate frisbee team and told his coaches that Jones had "raped" him.³

J. H., who was a student at the University of North Georgia-Oconee, became friends with Jones when they worked together at an Athens restaurant. On October 11, 2014, J. H. went to Jones’ apartment where he planned to spend the night before attending an early morning work meeting. The two men went to a bar in downtown Athens where Jones claimed he knew the bartender and they could get free drinks. As they left the bar in a cab, J. H. was feeling woozy "like almost, kind of fading in and out kind of feelings." His next memory was waking up with Jones on top of his legs. Although J. H. was aware of what was going on, he felt like he could not move. J. H. faded back out of consciousness, and when he woke again, Jones was holding him down with one hand and touching J. H.’s genitals with his mouth. J. H. did not consent to Jones’ actions. When J. H. tried to sit up and tell Jones "no," Jones "forcibly shoved [him] back down ... and told [him] to stop." When J. H. woke up the next morning, he was wearing a different pair of underwear, and both of his legs were through one opening.

On November 7, 2015, UGA student W. W. ran into Jones, whom he had recently met, at a bar in downtown Athens. W. W. and Jones later went to another bar and had a drink called a "Vegas Bomb" or "Bomb." Although W. W. was a "pretty experienced" drinker, the next thing he remembered was waking up at Jones’ apartment, but he did not remember how he got there. W. W. recalled throwing up, texting his girlfriend, and walking around outside and then later waking up two times with Jones performing oral sex on him. When he next awoke, Jones was telling him to pull his pants up. W. W. testified that he did not consent to Jones’ actions.

W. W. "ran as fast as [he] could," and called his girlfriend to come get him. When she arrived, W. W. told her that he had been "raped." W. W. later submitted to an examination by a SANE, to whom he reported what had happened. The evidence showed that swabbings from W. W.’s penis and scrotum were positive for saliva, which DNA testing matched to Jones. W. W. later texted Jones, who denied there was any sexual contact between them.⁴

1. Contrary to Jones’ argument on appeal, we find that the evidence at trial was sufficient to support his convictions beyond a reasonable doubt. "When we consider the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and inquire only whether any rational trier of fact might find beyond a reasonable doubt that the defendant is guilty of the crimes of which he was convicted." Dorsey v. State , 303 Ga. 597, 600 (1), 814 S.E.2d 378 (2018). See also Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact." (Citation and punctuation omitted.) Dorsey , 303 Ga. at 600 (1), 814 S.E.2d 378.

a. Sodomy . Although Jones was charged with five counts of aggravated sodomy, each count involving one of the victims, the jury convicted him of the lesser included offense of sodomy on the charges relating to K. V., C. B., and W. W. See Melton v. State , 282 Ga. App. 685, 693 (2) (c), 639 S.E.2d 411 (2006) (sodomy lesser included offense of aggravated sodomy); OCGA § 16-1-6.

(i) Under Georgia law, "[a] sodomy conviction requires evidence of a nonconsensual, public, or commercial act involving contact between one party’s sexual organs and the other’s mouth or anus. OCGA § 16-6-2 (a) (1)." Melton , 282 Ga. App. at 692-93 (2) (c), 639 S.E.2d 411. See also Powell v. State , 270 Ga. 327, 336 (3), 510 S.E.2d 18 (1998) (holding that consensual, private, non-commercial act of sodomy is constitutionally protected). K. V., C. B., and W. W. each testified that Jones performed at least one nonconsensual act in which his mouth touched the victim’s penis, as alleged in the indictment.⁵ That testimony and other evidence at trial was sufficient to support Jones’ sodomy convictions beyond a reasonable doubt.

(ii) However, the State, to its credit, has brought to this Court’s attention that the trial court failed to impose a split sentence on each of the sodomy counts (Counts 1, 2, & 5) in accordance with the version of OCGA § 17-10-6.2 (b) in effect at the time of Jones’ sentencing in May 2017.

The trial court sentenced Jones to 20 years on each sodomy conviction to run consecutively to his life sentence, with a 25-year mandatory minimum, on the aggravated sodomy conviction under Count 3.⁶ At the time that Jones’ sentence was imposed in May 2017, OCGA § 17-10-6.2 (b) provided, in pertinent part, that

any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of

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