Simmons v. State

• Decision Date: 03 October 2001
• Docket Number: No. A01A1002.,A01A1002.
• Citation: 555 S.E.2d 59,251 Ga. App. 682
• Parties: SIMMONS v. The STATE.
• Court: Georgia Court of Appeals

555 S.E.2d 59

251 Ga. App. 682

SIMMONS v. The STATE.

No. A01A1002.

Court of Appeals of Georgia.

October 3, 2001.

Certiorari Denied February 4, 2002.

Jodi Dick, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., George W.K. Snyder, Jr., Shawn D. McAllister, Asst. Dist. Attys., for appellee. ANDREWS, Presiding Judge.

Wayne Darryl Simmons appeals from the trial court's denial of his motion for new trial after being convicted by a jury for kidnapping, aggravated assault, and possession of a firearm by a convicted felon.

When reviewing a conviction, this Court must determine "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." (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Any inconsistencies in the victim[`s and witnesses'] testimony, ... go to the weight and credibility of the witnesses' testimony; such issues are for the jury to weigh. Sherman v. State, 225 Ga.App. 869, 485 S.E.2d 557 (1997); Jones v. State, 220 Ga.App. 236, 469 S.E.2d 379 (1996). "This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses." (Citation and punctuation omitted.) Kapua v. State, 228 Ga.App. 193, 195, 491 S.E.2d 387 (1997).

Taylor v. State, 232 Ga.App. 383, 384-385, 501 S.E.2d 875 (1998).

Viewing the evidence with all inferences in favor of the verdict, it was that, on October 29, 1996, after dusk, Veronica Simpson was in her apartment with her fourteen-year-old son and two-year-old daughter when she heard a loud banging at her front door. Upon opening the door, she encountered Simmons,¹ who put a gun in her face and demanded to know where her brother was. When she said she did not know, Simmons said she would tell him or he would kill her.

Ikenyaly Rosser, Simpson's son, came into the room and saw Simmons pointing a gun in his mother's face. Rosser told him if he killed his mother, he would kill him. Simmons then cursed Rosser and told Simpson to take him to where her brother was. He then grabbed her shirt and pushed her out onto the porch. Because she was wearing house shoes, Simpson had her son bring her some other shoes. While Simpson and Simmons were on the porch, her neighbor Angela Rome was on her way out and Simpson told her to watch her children. Rome, who acknowledged having had several beers, did not notify police, but did later get Simpson's children and take them to another neighbor's apartment.

Sanchez Traylor, another neighbor, saw Simmons pulling Simpson down the steps and sidewalk and heard Simpson yelling that she did not want to go with him. Traylor saw a gun and called police.

Simpson was pushed into Simmons' car on the passenger side. She could not open the door, and Simmons drove off. Simpson told Simmons about a Vine Street address where she had previously lived with her boyfriend,² and Simmons drove there. Although lights were on, Simmons did not get out, but circled the address several times. Simmons then threatened to kill Simpson, and they struggled over the gun. During the struggle, Simmons bit Simpson on the wrist and she bit him on the head. They continued to struggle and fell out of the driver's side of the car. Simmons hit her in the head with the gun, and the clip fell out. She grabbed the clip and ran, but Simmons grabbed her and choked her, retrieving the clip. Simmons then told her he was not going to hurt her and drove off. Simpson ran to a nearby MARTA station, and police and paramedics were called.

The paramedic examined Simpson who said she had been kidnapped, thrown from the car, and hit on the head with a gun. He found an abrasion on Simpson's head with minor bleeding. Simpson refused to be transported to the hospital, but did meet with detectives that evening and give a statement. A warrant was issued for Simmons the next day after detectives determined his last name.

Simmons was arrested on that warrant in March 1997. When arrested, Simmons had in his car a 9-millimeter semi-automatic handgun.

The evidence of kidnapping and aggravated assault was legally sufficient.³ Jackson v. Virginia, supra.

1. Simmons' first enumeration is that the trial court erred in allowing into evidence the fact that he had a gun in his possession when arrested because it placed his character in issue and was not in temporal proximity to the charged crimes.

Simmons relies on Benford v. State, 272 Ga. 348, 528 S.E.2d 795 (2000), in which it was stated that even

circumstances surrounding an arrest other than for the crime for which a defendant is on trial are [not] always irrelevant and prejudicial. Anderson v. State, 236 Ga. App. 679, 683(4), 513 S.E.2d 235 (1999). [Cit.] However, this Court has indicated that the admission of evidence which shows the commission of another crime may not automatically be admitted solely on the basis that the evidence was incident to an accused's arrest where the evidence is wholly unrelated to the charged crime, the arrest is remote in time from the charged crime, and the evidence is not otherwise shown to be relevant. [Cits.] Just as evidence of the circumstances connected with an accused's arrest is not automatically prejudicial neither is it automatically relevant. Rather, such evidence is subject to the same standard of relevancy and materiality applicable to other evidence. Thus, "the admission or exclusion of this evidence `lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.' [Cit.]" [Cit.]

(Emphasis supplied.) Id. at 350(3), 528 S.E.2d 795.

Here, unlike in Benford, the arrest, the circumstances of which were found admissible, was for the crime for which Simmons was on trial. Also, because a handgun was used in the charged crime, Simmons' possession of a handgun at the time of his arrest was relevant and admissible. Compare Benford, supra (evidence of a .22 caliber handgun possessed at arrest for another crime not admissible when charged crime committed with shotgun) with Nealy v.. State, 246 Ga. App. 752, 753(1), 542 S.E.2d 521 (2000) (bulletproof vest worn by accused when arrested for aggravated assault with a handgun admissible in aggravated assault trial resulting from multiple weapon shootout 26 days earlier).

There was no error.

2. Simmons contends, in his second enumeration, that the trial court erred in allowing Rosser, "a child witness[,] to testify where the [S]tate failed to prove that he was competent to do so."

At the beginning of the trial, defense counsel made an oral motion in limine, contending that Rosser is "a 14 year old, and we would request the check into his competency. He has several medical and mental disorders, and under the statute I believe it's the court's duty once an objection to competency has been made, to check into his competency. He is, I believe, autistic, ... [and has] two or three other disorders." No ruling was made at that time.

Simpson, the State's first witness, then testified that her son, Rosser, suffered from a "disorderly conduct problem," seizures, and schizophrenia, the latter of which resulted in his hearing voices. Rosser, however, took three medications for these problems, Ritalin (hyperactivity), Tegretol (seizures), and Haldol (schizophrenia).

Before Rosser was called as a witness, Simmons' counsel asked the court if a competency hearing were necessary on the basis that "he's subject to doing whatever his mother wants and says ...." Simmons' counsel also questioned whether Rosser understood the difference between right and wrong and truth and a lie.

The trial court did then question Rosser outside the presence of the jury. Rosser was introduced to the court by the prosecutor, who mispronounced his name and was corrected by Rosser. The court inquired why Rosser was there, and he responded because "that man had kidnapped my momma." Rosser also responded to the court's inquiry regarding truth and a lie, indicating an understanding of the difference.

Pursuant to OCGA § 24-9-7: "(a) The competency of a witness shall be decided by the court. The court shall by examination decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness, or infancy. (b) If an objection to competency is known, it shall be taken before the witness is examined at all...."

The trial judge is vested with discretion to determine the competency of witnesses, which will not be overruled absent abuse. Gallagher v. State, 196 Ga.App. 153, 154, 395 S.E.2d 358 (1990).

Pursuant to Sizemore v. State, 262 Ga. 214, 416 S.E.2d 500 (1992), a child may no longer be challenged for competency based solely on infancy or solely on the basis that he does not comprehend the nature of an oath. Norton v. State, 263 Ga. 448, 450(3), 435 S.E.2d 30 (1993) (showing of appreciation of the truth is all that is required).

Everyone is presumed competent to testify. Flynn v. State, 255 Ga. 415, 419(7), 339 S.E.2d 259 (1986); Dumas v. State, 239 Ga.App. 210, 213-214, 521 S.E.2d 108 (1999). While any witness, including a child, may be challenged on the ground he does not have the use of reason, London v. State, 274 Ga. 91, 93, 549 S.E.2d 394 (2001), having mental disabilities, alone, does not establish such lack of use of reason. Even having been previously judged insane or having had a guardian appointed does not amount to incompetency to testify. McClain v. State, 248 Ga.App. 338(2), 545 S.E.2d 926 (2001); Bonner v. State, 59 Ga.App. 737, 738(1), 1 S.E.2d 768 (1939).

It is not apparent, from the motion in limine and other statements of Simmons regarding Rosser, that the court was required to inquire into Rosser's competency, since no specific basis for Rosser not having the use of reason was given, other than...