Lembcke v. State, A06A0156.

CourtUnited States Court of Appeals (Georgia)
Citation625 S.E.2d 505,277 Ga. App. 110
Docket NumberNo. A06A0156.,A06A0156.
PartiesLEMBCKE v. The STATE.
Decision Date28 December 2005
277 Ga. App. 110
625 S.E.2d 505
No. A06A0156.
Court of Appeals of Georgia.
December 28, 2005.

Page 506

Fred R. Simpson, Rome, for appellant.

Leigh E. Patterson, District Attorney, Suhirjahaan S. Morehead, Assistant District Attorney, for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Tiphany Lynne Lembcke appeals her convictions for making false writings and for making a false report of a crime to police. She challenges the sufficiency of the evidence, including specifically the evidence of venue, and further argues that the court erred in failing sua sponte to charge the jury on her sole defense of mistake of fact. We hold that no evidence proved venue on either count and therefore reverse.

1. When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State.1 We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia.2

(a) So construed, the evidence shows that Lembcke reported to police that certain checks had been stolen from her car while it was parked near a shopping center in Rome, Georgia. She gave police the [277 Ga. App. 111] stolen check numbers as beginning with check number 1070. She later went to her bank and signed a document declaring that five checks written and cashed on her account had been stolen and were forgeries, which included check numbers 1070, 1071, 1072, 1073, and 1075. Even though the bank clerk pointed out that check number 1075 had been cashed at the bank and asked if Lembcke was sure she had not cashed the check herself, Lembcke insisted that the check was stolen and forged.

A bank videotape showed that Lembcke had personally cashed check number 1075 at the bank, and Lembcke eventually conceded that she had written each of the five cashed checks. This evidence sufficed to sustain her convictions under OCGA §§ 16-10-20 (making a false writing) and 16-10-26 (making a false police report).

(b) Nevertheless, no evidence showed that the crimes were committed in Floyd County, where Lembcke was tried.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. Proof of venue is a part of the State's case, and the State's failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient...

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7 cases
  • Boatright v. State, A14A0068.
    • United States
    • United States Court of Appeals (Georgia)
    • 8 Septiembre 2014
    ...officer, the issue was automatically preserved for appellate review. SeeOCGA § 5–5–40(g); OCGA § 5–6–36(a); Lembcke v. State, 277 Ga.App. 110, 112(1)(b), 625 S.E.2d 505 (2005) (“In criminal cases, ... challenges to the sufficiency of the evidence need not have been raised below, whether at ......
  • In re Interest of M.C., A18A0006
    • United States
    • United States Court of Appeals (Georgia)
    • 24 Mayo 2018
    ...trial or in his motion for new trial. Nevertheless, he may raise it in the context of a sufficiency claim on appeal. Lembcke v. State , 277 Ga. App. 110, 112 (1) (b), 625 S.E.2d 505 (2005) ; In the Interest of J.B. , 289 Ga. App. 617, 618, 658 S.E.2d 194 (2008) ("When a charging document al......
  • Boatright v. the State., A14A0068
    • United States
    • United States Court of Appeals (Georgia)
    • 27 Junio 2014
    ...officer, the issue was automatically preserved for appellate review. See OCGA § 5-5-40 (g);OCGA § 5-6-36 (a); Lembcke v. State, 277 Ga. App. 110, 112 (1) (b) (625 SE2d 505) (2005) ("In criminal cases, . . . challenges to the sufficiency of the evidence need not have been raised below, wheth......
  • IN RE DD, A07A1390.
    • United States
    • United States Court of Appeals (Georgia)
    • 11 Septiembre 2007
    ...See King, 271 Ga.App. at 387(1), 609 S.E.2d 725; Melton v. State, 282 Ga.App. 685, 688(1)(a), 639 S.E.2d 411 (2006); Lembcke v. State, 277 Ga.App. 110, 111-112(1)(b), 625 S.E.2d 505 (2005). The evidence of venue was insufficient as to the aggravated assault and the adjudication of guilt on ......
  • Request a trial to view additional results

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