Mitchell v. State

337 Ga.App. 841

789 S.E.2d 797

Mitchell

v.The State.

A16A0041

Court of Appeals of Georgia.

June 16, 2016

Reconsideration Denied July 11, 2016

Law Office of Gregory Hicks, Amanda G. Speights, Woodstock, for appellant.

Shannon G. Wallace, District Attorney, Wallace W. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

Doyle, Chief Judge.

After a jury trial, Keith Allen Mitchell was convicted of making harassing phone calls,¹ burglary,² two counts of aggravated assault,³ two counts of false imprisonment,⁴ three counts of aggravated sodomy,⁵ two counts of rape,⁶ and possession of a knife during the commission of a crime.⁷ The jury acquitted Mitchell of one count of theft by taking. After the trial court denied his motion for new trial, Mitchell filed this appeal, arguing that (1) the evidence was insufficient to support his conviction as to the two counts of false imprisonment; (2) the trial court erred by improperly instructing the jury as to venue; (3) the trial court erred by denying his motion for a mistrial following an officer's testimony regarding Mitchell's pre-trial detention; and (4) his sentence is void because the trial court failed to merge various counts for sentencing. For the reasons that follow, we affirm Mitchell's conviction, vacate his sentence, and remand the case for resentencing.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.”⁸

So viewed, the record shows that Mitchell and A.D. dated for approximately two months following a few months of phone and electronic communication, but A.D. eventually ended the relationship in March 2012. During April 2012, Mitchell repeatedly called A.D. attempting to reunite with her, threatening suicide or becoming irate, and on one such call he stated that A.D.'s father could stay with her as much as her father wanted, but at some point he would have to go home and then A.D. would be sorry.

Thereafter, on April 29, 2012, around 5:00 p.m., A.D. returned home with her 12–year–old son, S.D., and went upstairs to her bedroom, where Mitchell accosted her, wielding a knife he had taken from her kitchen. A.D. was terrified and screamed, and Mitchell told her to be quiet, coming toward her with the knife in his hand and trying to put his other hand over her mouth to silence her. S.D. came to the bedroom after hearing his mother's screams, and A.D. put herself between Mitchell (who put the knife out of sight when S.D. entered the room) and S.D. Mitchell stated that he needed to talk to A.D., but she had been refusing to do so.

S.D. stated he needed to use the restroom, and Mitchell took him into the attached bathroom and closed him into the separate toilet area, making sure that S.D. did not have his cell phone. Mitchell told S.D. to stay in the bathroom because he needed to talk to A.D.

At this point, Mitchell returned to the bedroom, took a pair of pantyhose from a drawer where A.D. had not put them, and cut a hole in the pantyhose crotch, telling A.D. to put them on and that he came for sex. A.D. removed her pants and put on the pantyhose, and Mitchell then demanded that she “suck [his] dick” and “whine.” The knife was on the bed while A.D. performed this act, and Mitchell told A.D. that as long as she complied with him, he would not hurt her. Mitchell then had forcible vaginal intercourse with A.D. A.D. testified that neither sex act was consensual, and she believed that Mitchell would kill her and S.D.

S.D. then knocked on the bathroom door from inside, asking if he could come out, and Mitchell finally allowed S.D. out of the bathroom upon A.D.'s suggestion that he might be hungry; Mitchell escorted them downstairs, still holding the knife, and A.D. prepared food that S.D. and Mitchell ate. S.D. asked if he could play a video game, and Mitchell said he could, but A.D. told S.D. to turn off a communication feature because she was afraid of what Mitchell might do if S.D. tried to call for help.

While S.D. was playing the game, Mitchell talked to A.D., accusing her of turning their friends against him, and she attempted to convince him otherwise; A.D. asked what Mitchell would do if someone was doing these acts to his niece. At that point, Mitchell became agitated again and told A.D. that he would “tell them they needed to do whatever they needed to do to stay alive and that's what [she] need[ed] to do.” Mitchell directed A.D. with the knife to return to her bedroom, and she asked him what was going to happen to her. Mitchell explained that he was going to stay, they would have sex all night, and then he would leave.

Mitchell then made A.D. put on pantyhose and a nightie before making her perform intercourse. Mitchell then discovered a butcher knife from on top of A.D.'s bedside table, which she had started keeping there when Mitchell began making harassing calls to her. Mitchell confessed that he had slept in her back yard Thursday night, and came into her house on Friday and stayed in her attic and garage the Friday and Friday night before the Saturday in question.

A.D. attempted to talk to Mitchell to calm him down and suggested taking S.D. out to eat, so Mitchell allowed her to take them to a local fast food restaurant, where they ordered ice cream from the drive-through window. Mitchell had the knife in his pocket during this time, and he would pat his pocket during the trip.

S.D. attempted to stay in the vehicle when they arrived back home, but A.D. told him he needed to go back inside. Mitchell told A.D. the two of them needed to go back upstairs. Mitchell told her to “suck [his] dick,” and then he asked if he could perform oral sex on her. A.D. testified that she “did not feel like [she] was in a position that it was safe for [her] to say no.” Mitchell then performed vaginal intercourse on A.D. again.

At this point, around 11:00 p.m., A.D. attempted to get Mitchell to leave, telling him he was not raping her and that she would not contact police. Mitchell retrieved his shoes from A.D.'s attic, and she told him she would give him money and drive him to a bus station. Mitchell made her leave her cell phone at home, and she withdrew $200 from a her bank for him on the way to the bus station; A.D. left Mitchell at the station, and then drove to a gas station where she called her father and told him about the events so he would meet her at her house. A.D. went home, where S.D. was sleeping, and she called police, who took her for a forensic evaluation at a local hospital.

After the evidence was presented to the jury, they found Mitchell guilty of all charges except theft by taking the knife from A.D.'s kitchen. Mitchell's motion for new trial was denied, and this appeal followed.

1. Mitchell argues that the evidence was insufficient to support his conviction as to the two counts of false imprisonment because there was no evidence that Mitchell confined or detained the victims against their will.

OCGA § 16–5–41 (a) states that “[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” While Mitchell contends that there is insufficient evidence to support his conviction on the two counts of false imprisonment, Mitchell actually attacks the credibility of A.D.'s testimony that the confinement was against her will because she cooked a meal for S.D. and took him and Mitchell to a local fast food restaurant. The record, however, established that Mitchell possessed a knife and threatened S.D. throughout the day-long encounter, including during the excursion from the house to the fast food restaurant. Moreover, evidence supported the jury's conviction of Mitchell for the false imprisonment of S.D. despite Mitchell's contention that S.D. (who was 12 at the time of trial) could not remember who made him stay in the home's bathroom while Mitchell raped and sodomized A.D. at knife-point in the adjoining bedroom.

This court does not weigh the evidence or determine witness credibility; rather, we determine only whether the evidence was sufficient to enable a rational trier of fact to convict the defendant under the standard set forth in Jackson v. Virginia.⁹ As long as there is some competent evidence to support each fact necessary to make out the [S]tate's case, we will uphold the jury's verdict.¹⁰

In this case, the jury's verdict was supported by A.D.'s testimony that the two victims were held by Mitchell in the home for approximately six hours, and she did not attempt to escape because she was afraid that Mitchell would harm her or S.D.,¹¹ as well as the testimony of both victims that Mitchell told S.D. to stay in the bathroom and patted him down for a cell phone.¹² Accordingly, this enumeration is without merit.

2. Mitchell next argues that the trial court violated OCGA § 17–8–57 by commenting on the evidence when charging the jury on venue. During the jury charge, the trial court instructed:

The law provides that criminal actions shall be tried in the County in which the crime was committed. Venue, that is, the crime was committed in Cherokee County , is a jurisdictional fact that must be proved by the State beyond a reasonable doubt as to each crime charged in the accusation just as any element of the offenses. Venue must be proved by direct or circumstantial evidence, or both.¹³

Mitchell argues that the language italicized above was an impermissible comment that venue had been proven. At the time of Mitchell's trial, OCGA § 17–8–57 provided that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Nevertheless, a trial court's jury charge violates the statute “only when [its] instruction, considered as a whole, assumes certain things as facts and intimates to the...