Martin v. The State

• Decision Date: 24 March 2010
• Docket Number: No. A10A0760.,A10A0760.
• Citation: 692 S.E.2d 741,303 Ga.App. 117
• Parties: MARTINv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 117

692 S.E.2d 741

MARTINv.The STATE.

No. A10A0760.

Court of Appeals of Georgia.

March 24, 2010.

Jonathan P. Waters, for Appellant.

Howard Z. Simms, Dist. Atty., Sandra G. Matson, Dorothy V. Hull, Asst. Dist. Attys., for Appellee.

MILLER, Chief Judge.

A Bibb County jury convicted Lebwana C. Martin of one count of terroristic threats (OCGA § 16-11-37(a)). Martin filed a motion for a new trial, which the trial court denied. Martin now appeals, arguing that the evidence was insufficient to support his conviction; the trial court's jury instructions violated his due process rights; and the trial court erred in allowing the prosecutor to repeat her opening statement when one of the jurors was tardy. Martin also claims he received ineffective assistance of counsel at trial. Finding sufficient evidence to support the conviction, no violation of due process, and that Martin failed to establish his ineffective assistance claim, we affirm.

Viewed in the light most favorable to the jury's verdict ( Drammeh v. State, 285 Ga.App. 545, 546(1), 646 S.E.2d 742 (2007)), the record shows that on the afternoon of July 16, 2008, Lucretia Hightower and her children visited Lucretia's mother, Barbara Hightower, at Barbara's home. At approximately 7:30 p.m., Lucretia was preparing to leave, and Barbara went outside to put the children's belongings in the car when Martin walked into her driveway, cursing at her and threatening to kill her. Barbara testified that while Martin was standing within approximately ten feet of her, “[h]e said I'm gonna kill you, Bitch. He was pointing his finger at me. Kept doing it.” Lucretia, who was outside by this time, overheard Martin's threat. Martin refused to leave until Barbara went inside to call the police. The police apprehended Martin and brought him back to Barbara's house, where both Barbara and Lucretia identified him as the man who had threatened Barbara. At trial, Barbara once again identified Martin as the man who had threatened her and testified that his threat scared her and put her in fear of her life. Lucretia likewise identified Martin in court as the perpetrator.

Barbara testified regarding “prior difficulties” with Martin. After a lawn mower was stolen from her shed, Barbara learned that Martin was trying to sell it in the neighborhood. Barbara confronted Martin, who admitted selling the lawn mower, and she then spoke with Martin's mother. Thereafter, Martin came onto Barbara's property and threatened her several times.

1. Martin contends that the evidence presented at trial was insufficient to support his conviction. We disagree.

Upon this Court's review of a criminal defendant's challenge to the sufficiency of the evidence supporting a conviction, 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.

(Punctuation omitted.) Robinson v. State, 296 Ga.App. 561, 675 S.E.2d 298 (2009), citing Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

OCGA § 16-11-37(a) provides, in relevant part: “A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence ... with the purpose of terrorizing another[,]” and that “[n]o person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.” The indictment accused Martin of threatening to commit “a crime of violence, to wit: murder upon the person of Barbara Hightower.” Accordingly, the State was required to prove two elements: (1) that Martin threatened to murder Barbara and (2) he did so with the purpose of terrorizing her. Hall v. State, 292 Ga.App. 544, 547-548(2), 664 S.E.2d 882 (2008); Nelson v. State, 277 Ga.App. 92, 97(1)(c), 625 S.E.2d 465 (2005). Here, the State presented ample evidence to allow the jury to find these elements beyond a reasonable doubt.

With respect to the first element, Barbara testified that Martin threatened to kill her. Lucretia corroborated her mother's testimony. As to the second element, whether Martin acted with intent to terrorize Barbara was an issue “peculiarly for the finder of fact.” (Punctuation and footnote omitted.) Williams v. State, 271 Ga.App. 755, 756, 610 S.E.2d 704 (2005) (jury authorized to conclude that defendant intended to terrorize child when she told child she was going to kill child's mother). “It is often difficult to prove with direct evidence an individual's intent as it existed at the time of the act for which he is being prosecuted. Thus, intent is often proved through the use of circumstantial evidence.” (Citation and punctuation omitted.) Moran v. State, 293 Ga.App. 279, 283(2)(b), 666 S.E.2d 726 (2008). Here, the jury could infer that Martin intended to terrorize Barbara based on all of the circumstances surrounding the incident. Martin appeared to be angry with her for accusing him of stealing her lawn mower and talking to his mother about this issue; he threatened her on previous occasions; he walked up her driveway on the day in question and threatened her and pointed his finger at her; and he refused to leave until she called the police.

Martin claims that the evidence does not support the verdict because Barbara did not call the police on the other occasions when Martin threatened her, thereby demonstrating that she was not actually frightened by his threats on the date in question. It was not incumbent on the State to prove that Martin “actually put fear in [Barbara's] heart” because the crime of terroristic threats “focuses solely on the conduct of the accused....” (Citation and punctuation omitted.) Hobby v. State, 298 Ga.App. 52, 53(1), 679 S.E.2d 72 (2009). Even were it otherwise, Barbara testified that Martin's threats put her in fear of her life. Further, her testimony indicated that the fact that Martin previously had engaged in a pattern of menacing conduct toward her only heightened her apprehension. The jury was entitled to credit Barbara's testimony.

2. Martin argues that the trial court erred in allowing the prosecutor to repeat her opening statement because one of the selected jury members was tardy. This claim of error has been waived.

After the jury was sworn and the prosecutor had almost completed her opening statement, one of the jurors walked into the courtroom and sat in the jury box. At that point, the trial court realized that one of the individuals sitting in the jury box had not been selected as a juror or alternate and was apparently confused about where she was supposed to be. That individual was dismissed, and the trial court swore in the tardy juror and allowed the prosecutor to repeat her opening statement, after first confirming that neither the prosecutor nor Martin's counsel objected. Having acquiesced in the trial court's decision on how to proceed, Martin cannot challenge it on appeal. Brown v. State, 242 Ga.App. 347, 349(2), 529 S.E.2d 650 (2000) (acquiescence to ruling of trial court waives right to challenge it on appeal).

3. Martin argues that the trial court violated his due process rights by instructing the jury that “[a] person commits terroristic threats when that person threatens to commit any crime of violence with the purpose of terrorizing another,” when the indictment specifically charged him with “threaten[ing] to commit a crime of violence: to wit: murder upon the person of Barbara Hightower.” Martin claims that the trial court's charge created a reasonable possibility that the jury would convict him of a crime committed in a manner not charged in the indictment. We disagree.¹

A criminal defendant's right to due process may be endangered when ... an indictment charges the defendant with committing a crime in a specific manner and the trial court's jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.

(Citations omitted.) Harwell v. State, 270 Ga. 765, 766(1), 512 S.E.2d 892 (1999). In this case, the State did not introduce evidence that Martin made threats against Barbara on the date in question other than threats to kill her, and, as such, no reasonable possibility exists that the jury convicted Martin for threatening to commit some other

unspecified crime of violence. Morris v. State, 280 Ga. 179,

...