Moore v. State, A00A1619.
| Decision Date | 27 September 2000 |
| Docket Number | No. A00A1619.,A00A1619. |
| Citation | 539 S.E.2d 851,246 Ga. App. 163 |
| Parties | MOORE v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Timothy W. Hoffman, Decatur, for appellant.
Jairus Moore, pro se.
J. Tom Morgan, District Attorney, Robert M. Coker, John H. Petrey, Assistant District Attorneys, for appellee. RUFFIN, Judge.
A jury convicted Jairus Moore of rape, two counts of aggravated sodomy, four counts of aggravated assault, and two counts of possession of a firearm during the commission of a crime. On appeal, Moore asserts multiple enumerations of error. As his assertions lack merit, we affirm.
Viewed in the light most favorable to the verdict, the record shows that, in the early morning of July 27, 1997, a woman met Moore at a party. After the two danced together, Moore invited her outside to see his pickup truck, and she agreed. At the truck, Moore pulled out a gun and ordered the woman to get in. He drove to a dark wooded park where he ordered her to get out. When the woman asked Moore not to "do this" to her, he hit her across the face with the gun. According to the woman, Moore then forced her to orally sodomize him, and attempted to have both anal and vaginal intercourse with her. Although Moore was unable to penetrate the rectum, he managed to penetrate her vagina despite her struggling. Eventually, the woman was able to break away from Moore, and she ran, naked, into the woods. Moore caught up with her and grabbed her around the neck. The woman fell, and Moore began beating her again as he attempted intercourse with her.
The woman broke away again, ran to a house, and cried for help. Someone inside the house turned on a light, which alerted Moore to the woman's whereabouts. He charged her, pushing her head through a glass door. He then threatened to kill her, telling her that he would be "right back." Moore left, and the woman, fearing that he would return with a gun, crawled through the pane of broken glass into the house. The woman testified that she was bleeding from head to toe. Mary Ann Carden, the owner of the house, called 911. The police arrived and took the woman to Grady Hospital, where she was treated for multiple lacerations and bruises.
Later that same morning, Moore drove to the home of his former girlfriend. Moore called his ex-girlfriend on a cell phone and offered to take her to work. She agreed. Rather than taking her to work, however, Moore drove his ex-girlfriend down a dead-end road, stopped the truck, and ordered her out of the truck. She refused, saying she needed to get to work. According to the ex-girlfriend, Moore said, "I am going to take you to work, but before you go to work you're going to give me some." Moore then forcibly removed her from the truck and ordered her to pull down her pants. When she refused, he hit her in the back of her head with his fist. Rather than fight Moore, she complied with his demands.
Once out of the truck, Moore forced his second victim to orally sodomize him several times and attempted to have intercourse with her several times before ejaculating. The woman told Moore, Moore told her to "shut up" and hit her in the back of the head. The last time she told him to hurry, he hit her across the face with the back of his hand.
Moore then took his second victim to work. During the ride there, she asked Moore what he would do "if somebody would have did your mama like that?" Moore pointed a gun at her head and said, "If they did, bitch, I'd kill them like I'll kill you."
With respect to his first victim, Moore was charged with rape, two counts of aggravated sodomy, kidnapping, two counts of aggravated assault, and possession of a firearm during the commission of a crime. The jury convicted him of all counts except for one count of aggravated sodomy and kidnapping. With respect to his second victim, Moore was charged with rape, one count of aggravated sodomy, two counts of aggravated assault, and possession of a firearm during the commission of a crime. The jury acquitted him of the rape charge, but convicted him of the remaining charges.
1. In his first enumeration of error, Moore challenges the sufficiency of the evidence supporting his convictions for aggravated sodomy against his first victim. By failing to provide any argument with respect to his other convictions, Moore has abandoned any argument that the evidence was insufficient to support those convictions.1
With respect to Moore's conviction for aggravated sodomy, he provides no legal authority whatsoever. His only argument is to point to his own, self-serving testimony that the woman performed consensual oral sex. Although Moore's testimony conflicted with his victim's on the issue of consent, such conflicts "are a matter of credibility for the jury's resolution."2
2. Moore contends that the State failed to prove venue beyond a reasonable doubt with respect to the crimes committed against his second victim. Venue, as a jurisdictional fact, must be proven beyond a reasonable doubt.3 "It is a question to be decided by the jury whose decision will not be set aside if there is any evidence to support it."4 Although the second victim could not find the exact location where the offenses took place, she testified unequivocally that they "happened in DeKalb" County. Accordingly, the jury was authorized to find that the State proved venue, and we will not disturb its finding on appeal.
3. Moore asserts that two of the aggravated assault counts in the indictment are deficient because they do not contain all of the essential elements of the crime, namely that hands were used as deadly weapons. Moore cites the Supreme Court case of Smith v. Hardrick5 for the proposition that, when an aggravated assault charge is predicated upon the use of hands, the indictment must expressly allege that hands were used as deadly weapons.
A defendant may challenge an indictment by filing either a special or a general demurrer.6 A special demurrer raises objections to the form of the indictment, and failure to file such a demurrer waives any challenge to form.7 A general demurrer, on the other hand, challenges the very validity of the indictment and may be raised at any time.8 It may not, however, be raised in any proceeding9. If a challenge to the validity of an indictment has not been made before the trial court, the proper method for such a challenge is through habeas corpus proceedings.10
Even assuming that Moore could challenge the validity of the indictment on direct appeal, we see no fatal flaw in the indictment. The true test of validity "is found in the answer to the question: Can the defendant admit the charge as made and still be innocent?" 11 Here, the indictments charge Moore with making an assault "with his hands and fists, objects which when used offensively ... were likely to result in serious bodily injury." Under OCGA § 16-5-21, a person is guilty of aggravated assault when he assaults another "with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." Thus, although the indictment does not specify that Moore's hands were being used as "deadly weapons," Moore could not admit the allegations contained therein and still be innocent of the crime charged.
4. Moore asserts that the trial court abused its discretion in denying his motion to sever. We disagree. "Severance is mandatory, upon defense request, if offenses are joined improperly, i.e., solely because they are of the same or similar character."12 But a trial court may join offenses for trial if the offenses "are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan."13 Here, although there were two victims, the crimes against them occurred mere hours apart, in the same general area, and in the same general manner. Accordingly, the offenses constituted a single "crime spree," and the trial court did not err in refusing to sever them.14
5. In seven enumerations of error, Moore asserts that the trial court erred in admitting the victims' prior consistent statements because the evidence improperly bolstered their testimony. With respect to five of the challenged statements, Moore failed to object and, thus, waived any error.15 With respect to the one remaining statement, in which the investigating officer testified as to what the first victim told him, defense counsel objected, but only on hearsay grounds. Accordingly, we will not address whether the testimony improperly bolstered her testimony as this argument was not presented to or ruled upon by the trial court.16
6. In two enumerations of error, Moore maintains that the trial court erred in admitting improper expert testimony. Again, Moore failed to object to any of the allegedly improper testimony and, accordingly, has waived error, if any.17
7. Moore also contends that the trial court erred in allowing the State to question him in such way as to shift the burden of proof. Moore elected to take the stand and testify in his own defense. He testified that, although he did own a gun, it did not look like the gun described by the victims. On cross-examination, the prosecutor asked Moore why he did not bring the gun with him to court to show the jurors. Moore asserts that this question was "improper" because he did not bear any burden to prove his innocence. Moore's assertion lacks merit. "The State, like any other party, has the right to conduct a thorough and sifting cross-examination and to pursue the specifics of a topic [Moore] introduced."18 Accordingly, the State was entitled to ask him why he did not bring his gun to court.19
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