Jones v. State

• Court: Georgia Court of Appeals
• Writing for the Court: MILLER
• Citation: Jones v. State, 318 Ga. App. 342, 733 S.E.2d 400 (Ga. App. 2012)
• Decision Date: 19 October 2012
• Docket Number: No. A12A1572.,A12A1572.
• Parties: JONES v. The STATE.

318 Ga.App. 342

733 S.E.2d 400

JONES

v.The STATE.

No. A12A1572.

Court of Appeals of Georgia.

Oct. 19, 2012.

Edwin J. Wilson, Jr., Oakland, CA, for Appellant.

Daniel J. Porter and Wesley Charles Ross, for Appellee.

MILLER, Presiding Judge.

Following a jury trial, Charles Richard Jones was convicted of rape (OCGA § 16–6–1(a)(1)), aggravated sodomy (OCGA § 16–6–2(a)(2)), false imprisonment (OCGA § 16–5–41(a)), and escape (OCGA § 16–10–52(a) (5)). Jones filed a motion for new trial, which the trial court denied. Jones appeals, contending that the trial court erred in denying his motion to sever offenses, and that the State made improper comments to the jury. Jones also contends that he received ineffective assistance of counsel. For the reasons that follow, we affirm the judgments of conviction but remand with direction that the trial court correct the scrivener's error contained in the written sentence.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt, and in doing so we neither weigh the evidence nor judge the credibility of witnesses.

(Citation omitted.) Brown v. State, 293 Ga.App. 633, 633–634, 667 S.E.2d 899 (2008).

So viewed, the evidence shows that in November 2003, the victim visited her boyfriend for the weekend and stayed at his residence. On Saturday night, November 15, 2003, the victim and her boyfriend went to a bar where they encountered Jones and stayed there for a short time. Jones and the victim's boyfriend knew each other because they had been staying at the same detention facility under a work-release program,¹ and the victim's boyfriend had hired Jones to install tile at his residence. Sometime after departing the bar that night, the victim and her boyfriend returned to his residence, and he later left to report to the detention facility.

The next morning, on November 16, 2003, the victim was alone at her boyfriend's residence when Jones knocked on the door. The victim asked Jones why he was there, and Jones told the victim that he had left some tools at the residence and wanted to retrieve them. The victim allowed Jones to enter the residence and helped him search for his tools. As the victim continued her search, Jones grabbed her from behind and held something against her back. Jones ordered the victim to remove her clothes and lie on a bed so that she would not flee. Jones then went over to the bed, straddled the victim, and forced her to perform oral sex on him. Jones then got on top of the victim and forced her to have sexual intercourse. Jones left the residence, but failed to return to the detention facility as scheduled.

The victim called her boyfriend, who reported the incident to the police. The police interviewed the victim and transported her to a facility where she underwent a physical examination and submitted samples for a rape kit.

The police officers attempted to locate Jones, who was on escape status, for several months before they were able to arrest him. The police officers obtained an order to draw blood from Jones and subsequently confirmed that samples from the victim's rape kit matched Jones's DNA. Jones was charged in pertinent part with rape, aggravated sodomy, false imprisonment, and escape.

At trial, Jones testified that he went to the residence of the victim's boyfriend on the morning of November 16, 2003, to retrieve a laptop computer. Jones claimed that the victim invited him inside the residence and asked him if he liked her physical appearance. Jones stated that the victim then led him into a bedroom where she consented to perform oral sex and to sexual intercourse. Jones further claimed that the victim asked him for money in exchange for sex, and that he refused to pay her.

After the presentation of the evidence at trial, the jury returned a verdict of guilty on the rape, aggravated sodomy, false imprisonment, and escape offenses.

1. Jones contends that the trial court erred in denying his motion to sever the escape offense from the remaining offenses. We disagree. ²

[A] defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the great risk of prejudice from a joint disposition of unrelated charges. However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. A trial court does not abuse its discretion in denying a severance of counts where evidence of one charge would be admissible in the trial of another.

(Citations and punctuation omitted.) Carruth v. State, 290 Ga. 342, 346(4), 721 S.E.2d 80 (2012).

Here, the offenses of rape, aggravated sodomy, and false imprisonment were a series of acts connected to Jones's subsequent escape because they occurred within hours of his failure to report to the facility detention under the work-release program and were, thus, part of the immediate circumstance of the escape. See, e.g., Owens v. State, 271 Ga.App. 365, 370(5)(a), 609 S.E.2d 670 (2005) (offenses that occurred within hours of escape are connected to escape offense for joinder purposes). Additionally, evidence of Jones's escape from the detention facility would have been admissible at a separate trial on the other offenses because evidence of flight is relevant to show consciousness of guilt. See Jackson v. State, 276 Ga.App. 77, 78(1), 622 S.E.2d 423 (2005).

“Moreover, this case was not so complex as to impair the jury's ability to distinguish the evidence and apply the law intelligently as to each offense. Consequently, we conclude that the trial court did not abuse its discretion in denying [Jones's] motion to sever and motion for new trial on this basis.” (Citations and punctuation omitted.) Boatright v. State, 308 Ga.App. 266, 274(2), 707 S.E.2d 158 (2011).

2. Jones also contends that the trial court erred in denying his motion for new trial on the grounds that the State made improper statements to the jury during trial and at closing argument. However, Jones concedes, and the record confirms, that he failed to object to the challenged statements at the time they occurred. Citing Parks v. State, 254 Ga. 403, 415(13), 330 S.E.2d 686 (1985), Jones argues that the prosecutor's remarks were so egregious as to require reversal despite the lack of a contemporaneous objection. Parks, however, was a death penalty case. Id. at 403, 330 S.E.2d 686. In non-death penalty cases, a defendant's failure to object to the prosecutor's remarks precludes enumerating it as error on appeal.³ See Conner v. State, 251 Ga. 113, 123(6), 303 S.E.2d 266 (1983).

3. Jones contends that his trial counsel was ineffective in several respects.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel's performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537(1), 690 S.E.2d 136 (2010). Applying these standards, we turn to address Jones's claims.

(a) Jones contends that his trial counsel was ineffective for failing to object to the prosecutor's improper statements and closing arguments. We address each of the challenged statements in turn below.

(i) Jones asserts that trial counsel should have objected to the prosecutor's statements referring to his “future dangerousness.” Jones claims that the prosecutor made the improper comments when he stated:

[W]e know deep down that there is evil in this world. If there is any doubt about that, turn on the news tonight.

...

There are people out there that you teach your child not to talk to.... There are reasons, because there are people out there that are flat out dangerous. And now it's easy to sit in your Lazy–Boy ... and hear about acts of violence, about acts of brutality, [and] about drug use.

It's kind of like white noise[.][Y]ou hear it so often that ... you're really numb to it. For the 12 of you this week, though, that's not the case. You were kind of put on the front lines in dealing with real life brutality, real life acts of violence. You can't just sit there[.]

We do not interpret these statements as an impermissible comment on Jones's future dangerousness. Instead, the comments were proper because they were intended to appeal to the jury to convict Jones for the safety of the community or to curb an epidemic of violence in the community, and to emphasize to the jury its responsibility to enforce the law. See Clark v. State, 285 Ga.App. 182, 184(2), 645 S.E.2d 671 (2007). Since the challenged comments were permissible, “counsel's failure to object to these comments during argument was not deficient performance.... And the...