Martin v. State

361 Ga.App. 511

864 S.E.2d 693

MARTIN

v.The STATE.

A21A0900

Court of Appeals of Georgia.

October 20, 2021

Jessica Ruth Towne, Lawrenceville, for Appellant.

Penny Alane Penn, Heather Nicole Dunn, for Appellee.

Hodges, Judge.

Following a jury trial, the Superior Court of Forsyth County entered a judgment of conviction against Josh Martin for one count each of aggravated assault (family violence) ( OCGA § 16-5-21 (a), (i) ) and false imprisonment ( OCGA § 16-5-41 ). Martin appeals from the trial court's denial of his motion for new trial, arguing that: (1) the evidence was insufficient to support his aggravated assault conviction; (2) the trial court erred in admitting a prior conviction to show intent when intent was not an issue; and (3) the trial court erred in imposing a $5,000 attorney fees restitution award without a hearing. Although we find no error related to Martin's first two arguments, we conclude that the trial court failed to properly analyze Martin's ability to pay the attorney fees restitution award. Therefore, we affirm in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

Viewed in a light most favorable to the verdict,¹ the evidence revealed Martin and the victim lived together and had a tumultuous relationship. The victim confided in a friend that she stayed in her room most of the time because Martin did not want her going anywhere or speaking with anyone. The victim stated that, on occasion, Martin would cover her nose and mouth to prevent her from screaming, that she would kick the walls to try and alert others but received no assistance, and that Martin told her, "that's what [you] get for trying to leave." Martin often threatened the victim — and physically attacked the victim — if she ever expressed a desire or tried to leave the residence without him or to leave the relationship.

After living in a motel, her daughter's trailer, and a friend's house over the course of a few months, the victim moved into a residence in Forsyth County with Martin. On the date charged in the indictment in this case, Martin struck the victim in the head after she dropped a cigarette on him. He told her to get dressed and to come outside. As she did so, she grabbed a small pocketknife and held it at her side, unsure if Martin intended to beat her again. But as she exited the trailer, Martin struck the victim in the back of the head, knocking her unconscious; a neighbor saw Martin "knock [the victim] in the side of the head" and did not see Martin use a weapon of any kind. When she awoke, the victim did not see anyone nearby, so she ran, screaming for help. The neighbor telephoned police. Martin initially claimed that nothing had happened with the victim, but then stated that he struck the drunken victim in self-defense to repel her attack.

A Forsyth County grand jury indicted Martin for one count each of aggravated assault (family violence) and false imprisonment. On the day of trial, and after the jury had been seated, Martin attempted to change his plea to guilty. The trial court rejected Martin's proposed guilty plea because he refused to admit guilt, and a jury found him guilty of both counts. One of the general conditions of Martin's sentence of probation was to reimburse the county $5,000 for his legal expenses. The trial court denied Martin's motion for new trial as amended, and this appeal followed.

1. In his first enumeration of error, Martin contends that the evidence was insufficient to support his conviction for aggravated assault because there was no proof that his hands were likely to cause, or did cause, bodily injury. We do not agree.²

Under Georgia law,

[w]hen a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. The jury's verdict will be upheld, then, so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.

(Citations and punctuation omitted.) Smith v. State , 354 Ga. App. 882, 884 (1), 842 S.E.2d 305 (2020). A person commits aggravated assault when he assaults another "[w]ith a deadly weapon or 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). "[W]hether [Martin's] hands and fists were objects used in a manner likely to result in serious injury was a question of fact for the jury to determine." Hewitt v. State , 277 Ga. 327, 331 (1) (e), 588 S.E.2d 722 (2003), overruled on other grounds by Manley v. State , 287 Ga. 338, 345 (3), 698 S.E.2d 301 (2010).

Here, Martin's indictment charged him with making "an assault upon the [victim] ... with the hands and fists of the accused ... by striking [the victim] on and about the head...." The victim testified that Martin, with whom she lived, "beat" her in the back of the head, while a neighbor saw Martin "knock [the victim] in the side of the head, and [the victim] go down to the ground." The victim also stated that she "just fell" when Martin struck her in the head the second time, and that "when [she] opened [her] eyes again, all [she] saw was the rain and the mud."³ From this evidence, the jury was authorized to find Martin guilty beyond a reasonable doubt of aggravated assault (family violence) for using his hands and fists to strike the victim. See generally Smith , 354 Ga. App. at 885 (1), 842 S.E.2d 305 ; Ferguson v. State , 322 Ga. App. 565, 566-567 (1), 745 S.E.2d 784 (2013) ; cf. Young v. State , 332 Ga. App. 361, 362 (1), 772 S.E.2d 807 (2015) (affirming conviction for aggravated battery in which defendant struck correctional officer in the head, knocking officer unconscious).

2. Next, Martin argues that the trial court erred in admitting a 16-year-old prior conviction for family violence battery to show intent when intent was not an issue at trial. We find no plain error.

Prior to trial, the State filed a notice of its intent to introduce other acts evidence concerning a 2001 incident, for which Martin was charged with aggravated assault against his mother, to show his "intent, knowledge, and lack of mistake...." In a pretrial hearing, the State indicated that the other act was based upon an incident in which Martin threatened his mother with a knife and that it would tender a certified copy of Martin's conviction. Martin replied, arguing that the events were too dissimilar and that a certified copy of his conviction, absent a testifying witness, was insufficient to prove he actually committed the other act. After conducting an analysis based upon OCGA § 24-4-404 (b) ("Rule 404 (b)"), the trial court allowed the evidence of Martin's 2001 conviction.⁴

During trial, the State tendered a certified copy of Martin's conviction. In response, Martin initially asked for a general limiting instruction on prior acts. After the trial court reviewed the pattern charge, Martin asked the court to "reconsider putting this in at all" based upon testimony from the arresting officer that Martin admitted striking the victim in the instant case. After further discussion, the trial court indicated that it would mention intent only in its charge and that intent would be "the basis of the other crime, wrong or act." The trial court then admitted, over Martin's objection, a certified copy of Martin's 2001 conviction for aggravated assault (family violence) against his mother. The trial court followed the evidence by giving a limiting instruction.

OCGA § 24-4-404 (b) provides:

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.

To evaluate the admissibility of other acts evidence, we apply a three-part analysis: "(1) the evidence must be relevant to an issue other than defendant's character; (2) the probative value must not be substantially outweighed by its undue prejudice; and (3) the government must offer sufficient proof so that the jury could find that defendant committed the act." (Citation, punctuation, and emphasis omitted.) Chambers v. State , 351 Ga. App. 771, 775 (2), 833 S.E.2d 155 (2019).

As to the first factor, relevant evidence is "evidence having 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." As to the second factor, even if Rule 404 (b) evidence is relevant, we must still decide whether "the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403."

(Citations omitted.) Id. at 775-776 (2), 833 S.E.2d 155. We review the admission of other acts evidence for a clear abuse of discretion. Id. at 776 (2), 833 S.E.2d 155.

We note that Martin does not argue that the first factor of the other acts evidence analysis — relevance — was not satisfied. Therefore, we look only to the second and third factors, about which Martin presented argument on appeal.

(a) Probative Value v. Prejudicial Effect. Martin contends that the other acts evidence had no probative value because he admitted to hitting the victim and that, as a result, "it took the burden off of the State [to prove intent] entirely." We are not persuaded.

Under this factor,

if the evidence is found to be relevant, the evidence is subject to the balancing test set forth in Rule 403 to

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