Johnson v. State

368 Ga.App. 762

890 S.E.2d 325

JOHNSON v. The STATE.

A23A0259

Court of Appeals of Georgia.

June 27, 2023

Reconsideration Denied July 14, 2023

William McLeod McIntosh, for Appellant.

Gerald Lee Henderson, Deborah Gonzalez Gonzalez, for Appellee.

Markle, Judge.

A jury convicted Courtney Tramon Johnson of kidnapping with bodily injury, rape, robbery by force, aggravated assault, and obstructing officers. Johnson appeals from the trial court's denial of his motion for new trial, contending the trial court erred by improperly admitting other acts evidence under OCGA §§ 24-4-404 (b) and 24-4-403, and by allowing the State to introduce evidence of his refusal to consent to a cheek swab, in violation of his constitutional right against illegal searches and seizures. He further argues that trial counsel rendered ineffective assistance by failing to call medical witnesses to refute evidence of the victim's injuries. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence at trial showed that the victim, a young woman, went out with her friends one night in spring 2017. She was the designated driver and, during the drive home, her friend, Makenzie, passed out due to intoxication. The victim got into an argument with her other friend, Cheyanne, who had also been drinking heavily. The victim pulled the car into a parking lot and called a different friend, Carlie, to come get her. Carlie was able to find the victim's location by using the "Find My Friends" application on her cell phone.

The victim got out of the car, and Cheyanne followed and continued yelling at the victim. Cheyanne then punched the victim in the nose, and drove off in the car with Makenzie still in it. The victim sat down on the curb and waited for Carlie to arrive, remaining on the phone with Carlie. While talking with Carlie, the victim felt an arm come around her neck, and she started screaming, but then a hand closed over her mouth, with the compression getting tighter until she lost consciousness. When she came to, she was on her back in a different location, and Johnson was hovering over her, with his pants open, and he was touching her vagina. When he moved away, the victim realized that she no longer had her purse and her phone. She screamed at Johnson to give them back to her, but then she fled. A passer-by flagged down a police car, and the victim reported that she had been raped. She had pain in her limbs, her neck, and her vagina; had bruises on her arms and scratches on her legs; and felt like she had been dragged.

Meanwhile, Carlie, who was ten minutes away, had heard the victim scream when she was initially attacked and then a muffled sound as if the phone had hit the ground. Carlie then called law enforcement, and an officer met her at the location where she was going to pick up the victim. While they were trying to locate the victim's phone using the "Find My Friends" application, Johnson ran by and the officer pursued. Ultimately, more officers became involved, and they were able to find Johnson in a heavily wooded area, where they also recovered the victim's phone.

The victim submitted to a sexual assault examination that same night. The nurse who conducted the exam noted abrasions on the victim's face and small pinpoint bruises around the victim's eyes, indicative of strangulation. The victim also had linear abrasions on her back and lower limbs consistent with being dragged. And she had bruising on her shoulders and neck. There was dirt on the exterior and interior of the victim's vagina, but no other injuries. The nurse collected swabs from the victim's cheek and vagina for DNA testing. The police obtained a search warrant to take swabs of Johnson's cheek for DNA testing. After testing, it was determined that the victim's vaginal swabs matched Johnson's profile.

Based on these facts, Johnson was charged with kidnapping with bodily injury; rape; three counts of aggravated assault; robbery by force; and obstructing an officer. At trial, Johnson testified that he was walking at night when he came upon the victim and Cheyanne "fighting like cats and dogs," and he witnessed Cheyanne beat and kick the victim multiple times. He insisted that, after talking with the victim, she agreed to engage in consensual sex acts with him in the bushes. To explain the presence of his DNA in her vagina, Johnson testified that he ejaculated in his own hand and then later penetrated the victim's vagina with his finger. He denied having intercourse with the victim. He further testified that she threatened to call the police and say that he raped her after she realized that her purse and phone were missing. He also denied choking and dragging the victim, robbing her, or forcing her to have sex against her will.

The jury ultimately found Johnson guilty on all counts. Johnson filed a motion for new trial, raising the issues addressed in this appeal. Following a hearing, the trial court denied the motion, and this appeal followed.

1. Johnson first argues that the trial court erred by admitting evidence of a prior strangling allegation under OCGA § 24-4-404 (b) ("Rule 404 (b)") because it was irrelevant and unduly prejudicial. We conclude the trial court did not abuse its discretion in admitting the other acts evidence.

The State sought to admit testimony from four witnesses regarding a 2007 incident, in which Johnson strangled a woman. Over Johnson's objections, the trial court admitted the evidence for the purpose of intent, and gave a limiting instruction both prior to the testimony and during the jury charge at the close of the case. At trial, M. A. recounted that she had been dating Johnson and, while she was visiting him, they had gotten into an argument over content on her cell phone. After Johnson broke her cell phone, M. A. got in her car to leave. Johnson then picked up a brick and threatened to put it through her windshield. When M. A. rolled down the window, Johnson reached in, choked her, and then pushed her over to the passenger seat while threatening to put her in the trunk if she did not move. Johnson then drove away with M. A. in the car, continuing to attack her, and forcibly preventing her from exiting the car. M. A. was ultimately able to escape. M. A. recounted that she had two black eyes, and bruises on her neck, arms and back as a result of the attack. Two witnesses, who observed the struggle, also testified at trial, and one noted that M. A. had red marks on her neck and had claimed she had been strangled. The responding officer also testified, and reported that M. A. had scrapes and bruises, as well as a significant injury to her eye, as if vessels in her eyes had burst. The trial court then admitted a certified copy of Johnson's conviction and sentence for false imprisonment arising from this incident, to which he was sentenced to ten years, with the first five years in confinement. ¹

Rule 404 (b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

OCGA § 24-4-404 (b). We will not disturb a trial court's decision to admit other acts evidence under Rule 404 (b) absent "a clear abuse of discretion." Jackson v. State , 306 Ga. 69, 76 (2) (b), 829 S.E.2d 142 (2019) ; Kirby v. State , 304 Ga. 472, 479 (4), 819 S.E.2d 468 (2018).

Under Georgia law, other acts evidence

is admissible if (1) the evidence is relevant to an issue in the case other than the defendant's character; (2) the probative value of the evidence is not substantially outweighed by its undue prejudice; and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.

(Citation omitted.) Jackson , 306 Ga. at 76 (2) (b), 829 S.E.2d 142. On appeal, Johnson's argument implicates only the relevance and undue prejudice prongs of this test.

(a) Relevance.

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OCGA § 24-4-401. As we have explained,

[t]he first prong of the Rule 404 (b) test is met where intent is a material issue on which the State bears the burden of proof and the same state of mind was required for committing the prior act and the charged crimes. In that regard, a defendant puts his intent in issue when he pleads not guilty unless he takes affirmative steps to withdraw intent as an element to be proved by the State.

(Citations and punctuation omitted.) Wright v. State , 362 Ga. App. 867, 880 (2) (b), 870 S.E.2d 484 (2022) ; see also Kirby , 304 Ga. at 480 (4) (a), 819 S.E.2d 468.

Johnson argues that there was no permissive purpose to admit the other acts evidence, and that the state of mind required for the other acts differed from the charged offenses. We disagree.

Notably, Johnson pled not guilty, and did not affirmatively withdraw the issue of intent. See Wright , 362 Ga. App. at 880 (2) (b), 870 S.E.2d 484 ; see also Kirby , 304 Ga. at 480 (4) (a), 819 S.E.2d 468. Rather, because Johnson's theory at trial was that the victim's injuries resulted from the fight with her friend and that the sex acts were consensual, his intent was an element the State was required to prove at trial. See Thompson v. State , 308 Ga. 854, 858 (2), 843 S.E.2d 794 (2020) (at trial for aggravated assault and felony murder, intent at issue where husband denied harming his wife to police and suggested her injuries were due to accidental falls); Jackson , 306 Ga. at 77 (2) (b) (i), 829 S.E.2d 142. Additionally, the intent...