Souder v. State

• Decision Date: 29 August 2006
• Docket Number: No. A06A1259.,A06A1259.
• Citation: 636 S.E.2d 68,281 Ga. App. 339
• Parties: SOUDER v. The STATE.
• Court: Georgia Court of Appeals

281 Ga. App. 339

636 S.E.2d 68

SOUDER v. The STATE.

No. A06A1259.

Court of Appeals of Georgia.

August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph S. Key, Sexton Key & Hendrix, Stockbridge, for Appellant.

Paul L. Howard, Jr., District Attorney, Kenneth L. Hutcherson, Stephany J. Lewis, Assistant District Attorneys, for Appellee.

BERNES, Judge.

A Fulton County jury convicted Sean Souder of aggravated stalking, three counts of aggravated assault, cruelty to children in the first degree, burglary, and threatening a witness. On appeal, Souder contends that the trial court erred in denying his motion for directed verdict of acquittal; that a fatal variance existed between the indictment and the evidence adduced at trial; and that the trial court should have stricken two jurors for cause. Finding no error, we affirm.

Construed in favor of the verdict, the evidence shows that Souder and the victim were involved in a tumultuous, violent relationship spanning approximately three years, during which time they had a son together. Over the course of their relationship, Souder forced his way into the victim's Fulton County apartment on multiple occasions and attacked her. On one such occasion, Souder kicked in the door to the victim's apartment while the victim and her extended family were present. When the victim asked him to leave, Souder refused and cut the gas line to the hot water heater, cut the cords to electronic equipment and the phone, threw water into the breaker box, and smashed the glass plates and cups stored in the kitchen.

Souder subsequently was arrested and charged with several offenses, including criminal damage to property in the second degree and burglary. Although Souder was released on bond, it was on the condition that, among other things, he not go to the victim's apartment and "not knowingly go within nor knowingly remain within . . . 200 yards of the victim at any time."

The victim thereafter was subpoenaed to testify in the pending criminal case against Souder. However, after the subpoena was served, Souder came by the victim's apartment "like every other day" and repeatedly warned her that "she better not come to court."

On November 4, 2002, "two or three weeks" after the subpoena had been served, Souder and two of his companions busted out a front window of the victim's apartment and climbed through it. As the victim came down the stairs, Souder grabbed her, dragged her into the living room, and began beating her in the face with his fist. When the victim fought back, Souder summoned the aid of his two companions, one of whom hit the victim in the face with a handgun, causing her to lose consciousness. The victim awoke to find Souder holding and shaking their two-year-old son in a rage. When the victim attempted to get her crying child from Souder, another physical fight ensued between her and Souder, who again summoned his companions for assistance. One of Souder's companions punched the victim in the face with metal knuckles while Sounder held her by the neck, choking her. One of Souder's companions then struck the victim in the back with a metal pipe. Throughout the entire incident, Souder and his companions repeatedly warned the victim, "Bitch, you better not go to trial."

The victim and her son were later taken by ambulance to Grady Memorial Hospital. The victim had a split lip, bruising and swelling on her face, bleeding in her mouth, and a possible broken jaw. The victim's son, who had the victim's dried blood on his face, was non-responsive to questions and stared blankly into space.

1. Souder contends that the trial court should have granted his motion for directed verdict of acquittal because the evidence allegedly was insufficient to convict him of three counts of aggravated assault, cruelty to children in the first degree, and burglary arising out of the November 4 incident.¹ "The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction." (Citation omitted.) Shelton v. State, 279 Ga. 161, 162(3), 611 S.E.2d 11 (2005). Thus, "the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. [We] determine[] only the legal sufficiency of the evidence adduced below and do[] not weigh the evidence or assess the credibility of the witnesses." (Footnote omitted.) Monteagudo v. State, 247 Ga.App. 801, 545 S.E.2d 351 (2001). "Our inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Punctuation and footnote omitted.) Linzy v. State, 277 Ga.App. 673, 627 S.E.2d 411 (2006). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(a) Aggravated Assault. "A person commits the offense of aggravated assault when he or she assaults . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." OCGA § 16-5-21(a)(2) (2002). In separate counts the indictment averred that Souder committed aggravated assault by striking the victim with (1) "metal knuckles," (2) a firearm, and (3) a "metal pole."

Souder does not dispute that there was sufficient evidence that the victim was assaulted with metal knuckles, a firearm, and a metal pipe during the November 4, 2002 incident. Instead, Souder contends that there was insufficient evidence that he, rather than his two companions, struck the victim with those specific objects, or that he ever directed his companions to strike her with those objects. We disagree.

"Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20(a) (2002). A person is a party if he "[i]ntentionally aids or abets in the commission of the crime" or "[i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime." OCGA § 16-2-20(b)(3), (4). "[M]ere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party." (Citations and punctuation omitted.) Stokes v. State, 232 Ga.App. 232, 233(1), 501 S.E.2d 599 ( 1998). "Proof that the defendant shares a common criminal intent with the actual perpetrators is necessary, and may be inferred from the defendant's conduct before, during, and after the crime." (Citations omitted.) In the Interest of N.L.G., 267 Ga.App. 428, 430(1), 600 S.E.2d 401 (2004).²

While the victim's testimony indicated that it was Souder's two companions who specifically struck her with metal knuckles, a firearm, and a metal pipe, the state presented more than sufficient evidence that Souder was a party to the three charged offenses. At trial, the victim's neighbor testified that after the victim was subpoenaed to testify in Souder's then-pending criminal case, the neighbor observed Souder warn the victim "a few times" that "she better not come to court." In turn, the victim testified that during the November 4 incident, Souder repeatedly warned her that she "better not go to trial" and repeatedly summoned his companions to assist him as he beat the victim with his bare hands. The victim further testified that on at least five prior occasions, Souder had forced his way into her residence and beat her, including one occasion in which she held him off only after pulling out a knife.

Taken together, this testimony authorized the jury to conclude that Souder intentionally procured and encouraged his companions to assist him in beating the victim in order to intimidate her from testifying in the criminal case that was pending against him at that time. See generally OCGA § 24-4-8 ("The testimony of a single witness is generally sufficient to establish a fact."); Tuff v. State, 278 Ga. 91, 92(2), 597 S.E.2d 328 (2004) (evidence of prior difficulties between defendant and victim was "highly relevant" to show "his then-present intention to seriously harm her and his abusive bent of mind toward her"). It follows that the evidence was sufficient to find Souder guilty, beyond a reasonable doubt, as a party to the three counts of aggravated assault charged in the indictment.

(b) Cruelty to Children in the First Degree. A "person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain." OCGA § 16-5-70(b) (2002). The indictment averred that Souder maliciously caused his minor son "excessive physical and mental pain by shaking [him]." Souder contends that his conviction on this count cannot stand because the state allegedly produced no evidence of either physical or mental pain that was excessive.³ Again, we disagree.

The determination of what is cruel or excessive physical or mental pain is to be made by the jury. "Cruel" and "excessive" are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts "cruel" or "excessive" pain . . . There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. . . . We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury.

(Punctuation and footnote omitted.) Sims v. State, 234 Ga.App. 678, 679-680(1)(a), 507 S.E.2d 845 (1998).

The evidence presented at trial reflected that as Souder shook his two-year-old son in a rage, the victim was lying on the ground in front of him unconscious. The victim testified that when she regained consciousness, she saw her...