Smith v. State
Decision Date | 19 February 2019 |
Docket Number | A18A1858 |
Citation | 348 Ga.App. 643,824 S.E.2d 382 |
Parties | SMITH v. The STATE. |
Court | Georgia Court of Appeals |
Sandra G. Dawson, Marietta, for Appellant.
Elizabeth A. Baker, Tracy Graham Lawson, for Appellee.
Following a jury trial, Wilbert Leon Smith was convicted of criminal attempt to commit rape, false imprisonment, and simple battery, and was sentenced to 40 years, 10 of which are to be served on probation. He was acquitted of two counts of aggravated assault. Smith appeals from the denial of his motion for new trial, arguing that (1) his acquittal on the aggravated assault counts and conviction on the criminal attempt to commit rape count resulted in a repugnant verdict; and (2) his trial counsel was ineffective for failing to challenge the guilty verdict on the criminal attempt charge as repugnant. For the reasons set forth below, we affirm.
Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004) (citations omitted); see also Jackson v. Virginia , 443 U.S. 307, 319 (II) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
So viewed, the evidence at trial established that the victim met Smith a few weeks before the incident, and Smith gave her his phone number. In a subsequent conversation, Smith asked the victim several times "to be more than friends," but the victim told him that she was not interested. On January 21, 2016, Smith drove the victim to a store and a job interview. On the way back from the interview, Smith showed her a handgun. Later that day, Smith agreed to rent the victim a hotel room at the Atlanta Airport Inn using his I.D. (because the victim did not have any I.D.) and the victim’s money. After getting settled in the room, the victim told Smith she was going to sleep and was not comfortable with him staying there, so Smith left.
However, in the early morning hours of January 22, 2016, the victim awoke to find Smith standing next to the bed with a gun against her head. When the victim tried to reach for her phone, Smith began choking her with one hand and held a knife to her neck. The victim testified that when Smith opened the knife, it sounded like a boxcutter. She tried to fight Smith off, but he threw her to the floor, and started choking her again. After Smith overpowered the victim, he made her get up and take off her clothes. She testified that she did not want to take off her clothes, and only did so because she "thought it was a life or death situation" and believed Smith was going to "snap [her] neck." The victim laid down on the bed, and Smith put his fingers inside her vagina. Smith then took off his pants, but was interrupted when a Forest Park police officer knocked at the hotel room door. The officer observed that Smith’s pants were undone and a naked woman was behind Smith and mouthed the words "help me." Upon a search of the room, police discovered a cloth holster for a smaller caliber firearm on the floor, "a box cutter-style knife" under the mattress, condoms, lubrication, and male enhancement pills (the victim testified that the condoms, lubrication, and pills were not in the room when she went to sleep). However, no firearm was found in the hotel room or in a search of Smith’s vehicle.
A grand jury indicted Smith on two counts of aggravated assault, one count of criminal attempt to commit rape, one count of false imprisonment, and one count of simple battery. The aggravated assault charges alleged that he assaulted the victim with a gun (Count 1) and a boxcutter (Count 2), while the criminal attempt to commit rape charge alleged that Smith threatened the victim "with a gun and a boxcutter, forced her to take her pants off, and took his own pants off, acts which constitute a substantial step toward the commission of said crime." At the conclusion of the trial, a jury acquitted Smith of both counts of aggravated assault and convicted him of the remaining charges.
1. Smith argues that his conviction for criminal attempt to commit rape "constituted a repugnant verdict, lacking in reasonable intendment." He maintains that his acquittal on the aggravated assault charges and his conviction on the criminal attempt to commit rape charge cannot be legally or logically reconciled because all three counts were based on the same alleged facts (that he used a gun and box cutter to assault/threaten the victim), and, therefore, his acquittal on the aggravated assault counts precluded a guilty verdict as to the criminal attempt to commit rape count.
Id. (citations, punctuation, and footnotes omitted); see also Sanders v. State , 245 Ga. App. 561, 564 (2), 538 S.E.2d 470 (2000) () (footnote omitted). Accordingly, Smith’s inconsistent verdict challenge is without merit.
Alternatively, to the extent that Smith asserts that the verdict is repugnant because it involves a finding of guilt and an acquittal on the same offense based on the same set of facts, that argument also fails. In Wiley v. State , 124 Ga. App. 654, 655-66, 185 S.E.2d 582 (1971), we identified a repugnant verdict as one that involved a finding of guilt and an acquittal on the same offense based on the same set of facts.1 However, we have since overruled Wiley and its progeny in an en banc decision. Blevins v. State , 343 Ga. App. 539, 550 (4), 808 S.E.2d 740 (2017). In doing so, we noted that Wiley was an "outlier" and determined that the reasoning set forth in Milam for abolishing the inconsistent verdict rule in criminal cases also applied to repugnant verdicts as defined in Wiley . Blevins , 343 Ga. App. at 550 (4), 808 S.E.2d 740. Thus, Smith’s repugnant verdict claim is foreclosed by our decision in Blevins .
Notwithstanding the above, we note that Smith was not acquitted and convicted of the same offense. Although Smith was charged with using a gun and a box cutter to commit both the aggravated assaults and the criminal attempt to commit rape, aggravated assault and criminal attempt to commit rape are separate, distinct offenses that consist of different elements. Specifically, "[a]ggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that...
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Moody v. State
... ... omitted; emphasis supplied). I would therefore grant Moody a ... new trial untainted by the improper admission of the ... other-act evidence ... --------- ... Notes: ... [ 1 ] (Citation and punctuation omitted.) ... Smith v. State , 348 Ga.App. 643, 644 (824 S.E.2d ... 382) (2019) ... [ 2 ] North Carolina v. Alford , 400 ... U.S. 25 (91 S.C. 160, 27 L.Ed.2d 162) (1970) ... [ 3 ] (Citation and punctuation omitted.) ... Strong v. State , 309 Ga. 295, 299 (2) (a) (845 ... ...
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Moody v. State
... ... omitted; emphasis supplied). I would therefore grant Moody a ... new trial untainted by the improper admission of the ... other-act evidence ... --------- ... Notes: ... [ 1 ] (Citation and punctuation omitted.) ... Smith v. State , 348 Ga.App. 643, 644 (824 S.E.2d ... 382) (2019) ... [ 2 ] North Carolina v. Alford , 400 ... U.S. 25 (91 S.C. 160, 27 L.Ed.2d 162) (1970) ... [ 3 ] (Citation and punctuation omitted.) ... Strong v. State , 309 Ga. 295, 299 (2) (a) (845 ... ...