Long v. State

• Decision Date: 20 November 2013
• Docket Number: No. A13A0998.,A13A0998.
• Citation: 752 S.E.2d 54,324 Ga.App. 882
• Parties: LONG v. The STATE.
• Court: Georgia Court of Appeals

324 Ga.App. 882

752 S.E.2d 54

LONG

v.The STATE.

No. A13A0998.

Court of Appeals of Georgia.

Nov. 20, 2013.

Bruce Steven Harvey, for Appellant.

Kay Ann Wetherington, Asst. Dist. Atty., Leigh Ellen Patterson, Dist. Atty., for Appellee.

BOGGS, Judge.

David Long appeals from his convictions of false imprisonment, aggravated assault, terroristic threats, and simple battery.¹ In this appeal, Long asserts the following: (1) the State presented insufficient evidence of venue, terroristic threats, and simple battery; (2) the trial court erred by admitting evidence concerning a similar transaction, a machete and crossbow, and hearsay; (3) the trial court erred by failing to grant a mistrial after a State's witness testified that police found marijuana in the defendant's home; (4) the trial court erred in its instructions on simple assault and aggravated assault; (5) the trial judge erred by failing to recuse; (6) he is entitled to a new trial because the trial judge communicated with the jury outside his presence; (7) he received ineffective assistance of counsel on numerous grounds; and (8) the trial court erred by sentencing Long beyond the statutory maximum. For the reasons explained below, we affirm Long's convictions, but vacate his sentence for terroristic threats because it exceeded the statutory maximum of five years.

1. When reviewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that on October 4, 2010, around 5:00 a.m., a customer at a gas station in Chattooga County saw the victim outside walking past the store window. The customer testified that the victim “had been beat up,” and “her face was bruised up and beaten and just—and she looked bad.” “[S]he had blood on her face. Her eye was almost swelled shut.... [S]he had abrasions on her ... wrists ..., her arms, her neck.” The store clerk testified that the victim had “scratches and stuff” on her face, a cut on her head, and a black eye.

When she came inside the store, she seemed hysterical, frantic, and very scared. She did not seem angry. Her hands were tied with blue rope that was covered with camouflage duct tape, and she was not wearing shoes. “[S]he started screaming help, help, please, help me.” After the store clerk and customer helped free her hands, “the first thing she said was don't call the police.... He'll hurt my kids.” She also stated notifying the police “would make things worse.”

After the customer determined that the victim's children were not with the man who had beaten the victim, the police were notified. While the customer waited with the victim for the police to arrive, she kept repeating, “[D]on't call the police,” and also stated that the man who beat her up wanted to kill her. She told the customer that after she escaped, she drove away from the Alabama state line, because she thought he would look for her in Alabama. Both the customer and the store clerk denied that they prevented the victim from leaving the store until the police arrived.

When sheriff's deputies arrived, they ran the license tag on the car in which the victim had arrived and when they asked about the registered owner, David Long, she stated that he was the person “who did this to me” and that it had happened at his house. While she seemed “very reluctant to say anything,” she eventually “opened up just a little bit more and advised that he had got mad. And so that she wouldn't leave he had taped her hands and ankles together and that he had struck her.” She also stated, however, that she did not want the police involved and did not want any charges to be brought, explaining “that her ex-husband had worked in law enforcement and they had a difficult situation involving court matters.” When a female deputy arrived, the victim told her “that she'd gotten into an argument with her boyfriend over a custody battle about her children and he became angry. And she had wanted to leave and he wouldn't let her leave. And he had duct taped her hands together and tied her feet together and then he assaulted her.” She also told the female deputy that the incident took place at her boyfriend's house on Everett Springs Road in Rome, Georgia.

Because the car was registered at an Everett Springs Road address in Floyd County and the incident took place at this address, the officers notified the Floyd County Police Department, and Officer Jones responded. When he arrived, he observed a “blackened right eye” and a “cut above her left eye” and the victim appeared nervous and scared. The victim stated that after her argument with Long escalated, “he struck her in the face several times and threw a ... Coke can at her face striking her in the head.” Officer Jones testified that the victim never said she wanted to leave and denied telling the victim that she could not drive away in Long's car. After taking the victim to the police station, “[s]he was still a little reluctant about giving a statement.” Officer Jones agreed that based on his experience in domestic violence cases, “it's not uncommon for the victim to not want to talk.”

The victim's sister testified that the victim called her the next day after she left the police station and told her that Long had “hit her and beaten her up,” giving her a cut over her eye that was still bleeding. Her sister told her to go to the emergency room, met her there, and saw that both of the victim's eyes were black, she had a still-bleeding cut above her eyebrow, and “just bruises everywhere.” The hospital ran tests to determine if she had “internal damage[ ] from where he had beat her on her chest and on her stomach.”

The sister described the victim as “the strong one” normally, but in the hospital, the victim was terrified, completely distraught, shaking, sobbing, and crying. At the hospital, the victim told her sister, “[h]e hit me and just kept hitting me. He wouldn't stop. I begged him, I said, please stop. Please stop. And he wouldn't.” She also told her sister that Long would not let her leave, threatened to kill her as well as her two children, and dismember and hide her body and claim that she had left for work and he did not know what had happened to her. The victim related that Long also stated that “he knew it would be a long time before he ever got out if she escaped [from him] and that he would wait” until he got out and then kill her children, her children's children, as well as her parents, siblings, and grandfather.

A few days after the incident and while Long was in jail, the victim, her mother, and sister went to the police station where the victim hand-wrote the following statement:

Today is October the 7th, 2010. I'm writing about events that happened on October 4th, 2010. I went to court in Alabama on contempt charges dealing with my divorce. I had planned for my son to testify that I did not interfere with the relationship between my children and the father. Sonny David Long spoke to my son on the phone after court. He was upset that my son did not get a chance to speak in court. I took my children to their visitation with their father and drove to Georgia. Sonny called and asked what I wanted for supper, that he was in town and [...] bring us something home. When I got to the house I was on the phone with a friend and sat in my car for a little while. He was not home yet. His nephew Chad and a friend were in the garage. He had told Chad to tell me to make brownies as soon as I got there. Since I was on the phone Chad did not interrupt me though. Sonny called the house phone and Chad brought it to me in the car. I got off the telephone with my friend and talked to Sonny. He was upset that Chad didn't come tell me as soon as I got there and got—at me when I tried to explain that I was still in the car. He pulled up after a minute later and fussed at Chad. I didn't hear all of it, just the end of him telling Chad and friend that everyone in his life had lied to him except his friend.

We went inside, ate supper, and got ready to go to the woods to get it ready for hunting. In the woods things were fine. On the way home he did a little fussing saying that as a mother all I had to do was tell the judge my son wanted to speak and she had to let him. Once we got home I got ready for bed and laid down. He and his friend got all the hunting stuff laid out for the next day.

Around 1:00 A.M. he came in the bedroom and started fussing at me. He said I had ruined his life now and he was never going to be happy. I tried to talk to him but he just kept saying shut up, you are nothing but a lying whore. He kept asking who taught me to lie. When I would say no one he would get madder. He said if I didn't answer he would hit me. I told him he had promised to never hit me and he said life was over so it didn't matter. I finally answered my mom and he hit me on the right side of my head with an open hand. He said this was his last chance in life and I had taken it away. I told him, no, I hadn't, that we still had a court date to get permission for me and the children to move to Georgia and we were getting married and everything would be fine. He said I was a f'ing stupid bitch if I...