Sellers v. State
| Decision Date | 08 September 2014 |
| Docket Number | No. A13A1857.,A13A1857. |
| Court | Georgia Court of Appeals |
| Parties | SELLERS v. The STATE. |
OPINION TEXT STARTS HERE
David Gladston Daniell, for Appellant.
Marie R. Banks, Asst. Dist. Atty., George Herbert Hartwig III, Dist. Atty., for Appellee.
Vernon Sellers was convicted by a jury of kidnapping with bodily injury, rape, aggravated sexual battery, aggravated assault and burglary. He appeals, contending that the evidence was insufficient to establish that he was the perpetrator of the crimes and, alternatively, that the trial court should have granted his motion for new trial because the verdict was contrary to the weight of the evidence establishing his identity. See OCGA § 5–5–20. 1 Further, he argues that the evidence was insufficient to establish the asportation element of his kidnapping conviction. As more fully set forth below, we now reverse his conviction for kidnapping with bodily injury and affirm his convictions for the remaining offenses.
1. (a) We first consider the sufficiency of the evidence to establish Sellers's identity as the perpetrator of the crimes.
In doing so, we apply the familiar standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), asking whether any rational trier of fact could find beyond a reasonable doubt from the evidence adduced at trial that [Sellers] is guilty of the crimes of which he was convicted. See 443 U.S. at 319(III)(B), 99 S.Ct. 2781. As to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. See Hayes v. State, 292 Ga. 506, 506, 739 S.E.2d 313 (2013).
White v. State, 293 Ga. 523, 523(1), 753 S.E.2d 115 (2013).
So viewed, the evidence showed that the victim of the crimes was a 69–year–old female who lived alone. The victim recently had been hospitalized, was in poor health and was dependent on oxygen to help her breathe. According to her testimony at trial and her recorded interview with police, which was played for the jury, the victim was in her bedroom on the night of March 3, 2005, watching a DVD when she heard dogs barking and a noise outside a window in the adjacent bedroom. She knew the window in that bedroom did not lock and walked to the bedroom to investigate.2 She did not see anyone outside the house or in the bedroom, but she sensed someone was there, and then realized that a man wearing a beige mask was standing in the bathroom.3 The victim described the intruder as a black male, around six feet in height, wearing denim blue jeans, a lightweight dark jacket, and dark colored athletic shoes with white stripes on the sides.
The man told the victim to go back into the other bedroom and asked her to tell him her name, which she did. He pushed her into her bedroom, turned off the DVD, which was the only source of light in the room, and then pushed her down onto the bed and taped her eyes and mouth with duct tape. He told the victim to turn over and crossed her wrists behind her back and taped them together. Afterwards, the perpetrator pulled off the victim's underwear, tore off her gown, put his finger into her vagina, put his mouth on her breasts, and then raped her.
Although her eyes were still taped, the victim said she was partially able to see her attacker by holding her head a certain way and looking under the tape. Thus, she testified that after he raped her, the perpetrator got up and walked to the hallway bathroom located next to the victim's bedroom. He returned to the bedroom with a washcloth, washed the inside of the victim's vagina and her breast area, and then turned her over and washed her buttocks. He went back into the bathroom, came back with the washcloth, and washed the victim again. He then made the victim stand, took the linens off the bed, and stuffed them into a light-colored bag. He also cleaned a portion of the carpet located beside the bed.
After he finished cleaning up, the perpetrator placed the victim, who was still bound, back on the bed and walked out of the room with the linens. 4 He subsequently reentered the room, told the victim to shut up and placed a knife on each side of the victim's neck. He then walked out of the room again.
When he did not return after a while, the victim called out to see if he would answer her. When she did not get an answer, she got up from the bed and went into the living room, where she turned on a light. She tried to hold the phone but dropped it and then tried to cut the tape off her hands but could not do that either. She checked the door to the carport and noticed it was unlocked and locked it back. After about an hour, the victim was able to remove some of the tape from her hands and to call her son and the police.
A Houston County emergency call dispatcher testified she received a 911 call from the victim at about 1:38 a.m. on March 3, 2005. The victim, who was upset and crying, said she had been raped. She told the dispatcher that the perpetrator had also held a knife to her throat, that he did not wear gloves, and that he had cleaned up after the attack. She described him as a tall black man and said she did not think it was someone she knew.
Jeff Herb of the Warner Robins Police Department responded to the call and went to the victim's home. He testified that the victim had duct tape around one hand, bruising around her wrist, and blood on her hand. He said the victim was very upset and told him she had been raped, as well as other details about the attack. The victim described her attacker as being a black male, and, based on a comparison with the officer's height, between 6'3? and 6'5? tall. When asked his weight, she turned to her son, who was also present by that time, and said that he was about “Vernon's size,” referring to the defendant, who was married to her granddaughter Melissa Sellers. She also told Officer Herb her attacker was wearing a beige ski mask that concealed his entire face except for his eyes; denim colored blue jeans; a dark, lightweight jacket; and black athletic shoes with a white stripe on the side. On cross-examination, Herb said that it did not seem like the victim knew her attacker.
After she talked to police, the victim was transported to the hospital where she was examined by a nurse specially trained to conduct sexual assault examinations. The nurse testified that the victim had extensive abrasions and bruising all over her body, as well as injuries to her vagina and genital area that the nurse said were consistent with what the victim told her about the assault and rape, including that the perpetrator had washed the inside of the victim's vagina with a washcloth. Pictures of the victim's injuries were also introduced, over objection, into evidence at trial. 5
The victim's son also testified at trial. He said he went to the hospital with his mother, and, upon cross-examination by the defense, testified that his mother told him while they were at the hospital that the person who attacked her sounded like “Vernon.” However, he said that he was not sure what his mother meant by the comment and explained that she did not say that Sellers was the perpetrator.
Multiple forensic experts also testified at trial. Lieutenant John Miller Lanneau, who was qualified as an expert in latent print examination and comparison and in crime scene investigation, testified that Sellers's fingerprint was found on a bottle of Lysol cleaner that was found sitting on the bathroom counter, which the victim said had been on the top bathroom shelf when she went to bed that night. Further, various experts testified that identifiable fingerprints were found on six pieces of the duct tape used to bind the victim, and one of those prints was a match to one of Sellers's fingerprints. An expert in trace evidence, who examined certain shoe prints that were found in the victim's kitchen,6 testified that “possibly” some of those prints had been left by two different pairs of shoes that police had obtained from Sellers; one pair of those shoes was black with a white stripe on the side.7 The swabs obtained during the examination of the victim were also tested but did not reveal the presence of any semen.8
Also pertinent here, the evidence showed that Sellers, who, as stated above, was married to the victim's granddaughter Melissa, would often accompany his wife on her visits to her grandmother, but he usually waited in the car instead of going inside. The victim testified that on occasion Sellers did come inside, but primarily just to use the bathroom, and that she could remember that happening only twice in the past. Further, the victim testified that Melissa and other family members knew about the window in the bedroom that did not lock, but she did not know if Sellers knew the lock was missing.
Police interviewed Sellers on several occasions, and an officer testified about one of the interviews; the other was recorded and played for the jury. Sellers told police that he left his house around 11:30 p.m. on the night of the crimes because he and Melissa had been arguing, and he wanted to ride around and listen to music to calm down. He said that he drove around east Macon, but he did not talk to anyone who could verify his whereabouts during that time. Sellers could not say precisely what time he returned home but said it was probably around 12:30 to 1:00 a.m.9 He told police that he sometimes accompanied his wife when she visited the victim's house, but he did not go inside the house often, although recently he had been going inside more often because the victim had been ill. Sellers admitted that he owned a beige knit cap and told police that he was wearing a blue and gray Chaps sweater and blue jeans when he left the house that night.
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