Soler v. State
| Decision Date | 05 March 2020 |
| Docket Number | A19A2465 |
| Citation | 840 S.E.2d 169,354 Ga.App. 93 |
| Parties | SOLER v. The STATE. |
| Court | Georgia Court of Appeals |
Stewart David Bratcher, for Appellant.
Leigh Ellen Patterson, Rome, John Frank McClellan Jr., for Appellee.
A jury found Joseph David Soler guilty of one count of burglary in the second degree and one count of theft by taking. Soler was sentenced to serve a total of five years in confinement. Soler filed a motion for new trial on the grounds that the evidence was insufficient to support his conviction on both counts and that he received ineffective assistance of counsel. Following a hearing, the trial court denied Soler’s motion in a detailed order. Soler appeals the order, raising largely the same arguments made before the trial court. Because we find the evidence adduced at trial was sufficient for a jury to find Soler guilty beyond a reasonable doubt on both counts, and because Soler failed to meet his burden in support of his claims for ineffective assistance of counsel, we affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only 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.
Hilley v. State , 344 Ga. App. 58, 58, 806 S.E.2d 280 (2017) (citations and punctuation omitted). Moreover, "[i]f some competent evidence exists to support each essential element in the State’s case, even if contradicted, the jury’s verdict must be upheld." Haslam v. State , 341 Ga. App. 330, 331, 801 S.E.2d 61 (2017).
So viewed, the evidence shows that on April 22, 2018, Officer Ashley Morris responded to a call from the Fairbridge Inn motel regarding a burglary that occurred there the night before. Upon her arrival at the lobby of the motel, Officer Morris noticed papers that appeared to have been rummaged through, a broken window in the kitchen area of the owner’s apartment that was connected to the office and lobby, and monitors that were missing a computer. Officer Morris spoke with an employee of the motel who informed her that a cash bag, money from the register, surveillance cameras, and a computer base were missing. Later, the owner of the motel told Officer Morris that a DVR, credit card machine, and an iPhone 6s were also missing. Officer Morris saw that the wall where the surveillance cameras previously hung was damaged, and it appeared that the cameras had been torn from the wall leaving cords hanging out. Officer Morris later observed grass and mud in the kitchen of the connected apartment but could not confirm whether it had been there when she initially walked through the apartment. Officer Morris did not observe any damage to the other doors or entrances in the lobby or connected apartment.
On April 21, 2018, the night of the burglary, Soler and his then-girlfriend Debbie Boggs, were overnight guests of the motel. On the morning of April 22, 2018, Boggs observed Soler with "a lot of money." When she asked him about the money, Soler told her it was none of her business. Boggs later went with Soler to her stepbrother’s house where she saw a computer that Soler claimed someone had given him. When the computer was turned on, the monitor displayed the logo for the motel. Boggs again questioned Soler about the computer, but was told "not to be asking questions about things that wasn’t [her] business." Soler eventually told Boggs that he had gotten the computer from the motel where they stayed.
While at her stepbrother’s house, Boggs also saw a credit card machine with a pink cord next to the computer. Soler told Boggs that he planned to use the computer and credit card machine to get the stored credit card information to be used for online purchases. Boggs also saw Soler with an iPhone that she had not previously seen him with prior to that day. Boggs witnessed Soler get money out of the "head liner" of her car that had not previously been there.
On April 23, 2018, Officer Kyle York was assigned as lead investigator for the burglary. Officer York received a tip that he should contact Boggs about the case. Officer York spoke with Boggs by telephone that same day, and she told him that she and Soler had stayed at the motel the night of the burglary, that she had suspicions about Soler with respect to the burglary, and that Soler admitted to breaking into the office of the motel, stealing items, cutting wires, and breaking the window to the apartment connected to the office. The following day, Boggs contacted Officer York again and told him that Soler had given her the DVR from the security system that was taken from the motel and that she would bring it to the police station later. Shortly thereafter, Boggs called Officer York again to tell him that Soler had threatened to harm her and her children if she turned the DVR over to police. Police officers were then dispatched to locate Soler.
Some days later, Officer York was contacted by Boggs’ mother, who informed him that she had the DVR. Boggs’ mother told Officer York that Soler had threatened Boggs about the DVR. Officer York and another investigator went to Boggs’ mother’s house and retrieved the DVR. After Officer York returned to the police station with the DVR and plugged it into a computer screen, he saw the motel’s logo on the home screen. There were no videos saved on the DVR and it appeared that the casing had been tampered with.
On May 14, 2018, Officer York was contacted by the IT company that provides technical support for the motel who gave him the IP address of the computer that had been taken from the motel. With this information, Officer York was able to get a search warrant for the location where the computer was being used. The stolen computer was retrieved from the home of a person who claimed that the computer was brought to the home by Boggs’ stepbrother. Boggs’ stepbrother told Officer York that he had received the computer from Soler.
Soler was indicted for burglary in the first degree, burglary in the second degree, and theft by taking. At the start of trial, the State announced that it would not proceed to trial on the burglary in the first degree charge. The jury found Soler guilty on the remaining two charges and the trial court sentenced Soler to serve a total of five years in confinement. Soler filed a motion for new trial, as amended, challenging the sufficiency of the evidence used to convict him and arguing that his trial counsel rendered ineffective assistance by failing to object to the introduction of his prior convictions during the sentencing phase. Following a hearing, the trial court denied Soler’s motion. This appeal followed.
1. Soler contends the evidence was insufficient to support his conviction because the State’s case rested primarily on the testimony of Soler’s then-girlfriend Boggs. However, the evidence in this case consisted of more than Boggs’ testimony, which on its own would be sufficient if the jury found Boggs to be a credible witness. See Vickers v. State , 246 Ga. App. 734, 734...
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...performance was adequate." (punctuation omitted)).11 Turner , 273 Ga. at 342 (2), 541 S.E.2d 641 ; accord Soler v. State , 354 Ga. App. 93, 96 (2), 840 S.E.2d 169 (2020).12 Turner , 273 Ga. at 342 (2) (a), 541 S.E.2d 641 ; see Wood v. Georgia , 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d ......
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