Moody v. State

361 Ga.App. 737

865 S.E.2d 544

MOODY

v.The STATE.

A21A1108

Court of Appeals of Georgia.

November 1, 2021

Forrest Geoffrey Pearce, for Appellant.

Fani T. Willis, Atlanta, Elizabeth Rosenwasser, Tristan Wade Gillespie, for Appellee.

Doyle, Presiding Judge.

Following the trial court's denial of his motion for new trial, Kenyatta Moody appeals from his convictions of aggravated assault and battery. He contends that (1) the trial court erred by admitting other-act evidence, (2) his trial counsel provided ineffective assistance by failing to object to portions of the State's closing argument, and (3) his due process rights were violated when the trial court denied his request to be physically present for the hearing on his motion for new trial. For the following reasons, 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 the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.¹

So viewed, the evidence at trial established that in January 2017, the victim was driving to her home with a friend when she noticed that an elderly neighbor's front door was "wide open." Thinking that something may have happened to her neighbor, she stopped her car and went inside his home "to check on him," while her friend stayed in the car. As she walked across his yard, she noticed another neighbor, Moody, walking down the street; she had arranged for Moody to give the neighbor a ride to the bank a few days earlier. She went inside the house and determined that her neighbor was okay and "just relaxing" with his door open.

The victim was surprised when Moody walked into the house and told the neighbor that he "and [his] cousin [are] going to come and clean your house up." The victim testified that when Moody

walked in[, the neighbor] said who is that, I don't know him? Of course he knows him, he took him that time to the bank, but [his] memory ain't going to be like that to know that person, he don't know him, he just know that person took him to the bank. So he told him that.... And [the neighbor] looked at me and said I don't know him and I want him to leave.

The victim testified that when she asked Moody to leave, the "[n]ext thing [she] knew [she] was on the floor." While she was down on the floor, Moody "kept stomping and stomping ... [her] head on that wood floor." She testified that she was scared and afraid she would die. At some point Moody stopped, and she stumbled outside and asked a young lady with a cell phone in her hand to call 911. The victim testified that when a police officer arrived, he refused to take a statement because she "was too belligerent." The victim went to the hospital first thing the next morning, and her injuries included a bloody lip, gums, and nose; a loose tooth; swollen lips and eye; bruises; a hematoma ; and an "awful headache." She later identified Moody in a lineup and at trial. She explained that she refused to go to the hospital in an ambulance right after the incident because she needed to pick up her granddaughter from day care.

During cross-examination, the victim acknowledged that she had no prior arguments with Moody and that she was unaware of any prior difficulties between Moody and her neighbor. She agreed with defense counsel's statement that "according to you[,] this person who had no argument with you at all, no argument with [the neighbor], just comes into the house, picks a fights and throws you to the ground and stomps you in the head[.]" She explained that she thought it happened because "I don't think he liked a woman telling him to do anything or to leave. We did argue, next thing I know I was on the ... wood floor."

The State played for the jury a recording of a 911 call placed by the elderly neighbor. In the call, the neighbor asked for a police officer to come to his house because "they took a man to the police[,] ... they arrested a man[,] ... and I need to know what to do."

The neighbor testified that he had a hard time remembering what had happened between the victim and Moody. The neighbor did recall a man entering his home, he responded affirmatively when asked whether the man "hit [the victim] or [did] anything to her." According to the neighbor, "[t]here must have been something going on previously between the two that I never understood and I cannot contemplate, I cannot make an assumption."

The friend who was in the victim's car waiting outside the neighbor's house during the incident testified that she heard a noise after the victim went inside that sounded "like furniture being thrown to the ground." When the victim came out of the house, "she was squatting down, [and] she had blood coming from her nose and mouth[,] and she said [Moody] jumped me, call the police." The friend also saw Moody exit the house, go to his car, and drive away; as he was walking, Moody stated, "I told her I was going to beat her ass."

A police officer testified that the victim came into the precinct a couple of days after the incident and reported that Moody had assaulted her. Police placed Moody in a six-person photo lineup, and the victim identified him as the man who had assaulted her. When the officer spoke with the elderly neighbor about the incident, the neighbor stated that the victim and Moody came into his house "and then they got into a fight." The neighbor said that Moody attacked the victim; he did not tell the officer that the victim attacked Moody. The testifying officer had no explanation for why the responding officer did not complete a report; this officer no longer worked for the police department at the time of the trial.

The State presented the testimony of two witnesses to prove a previous assault by Moody in 2012. A police officer testified that in February 2012, he received a domestic dispute call and went to the residence of Moody's mother. She told him that her son was angry with her about "something she said" in another location. When they returned home, he wanted some items back from her, they got into an argument, and "she told him to get out of her house.... So he got mad ... and threw her on the floor and punched her in the face several times." After punching his mother, Moody forced her into a room, took her cell phone while he packed his bags, and then left. The police officer observed blood throughout the house and the mother's top lip "hanging down."

Moody's mother testified that she could not recall the 2012 incident with Moody, and she denied telling the police that he attacked her. The State tendered and the trial court admitted a certified copy of Moody's Alford² plea for aggravated battery, aggravated assault, robbery by intimidation, false imprisonment, and hindering an emergency telephone call.

In closing argument, Moody's trial counsel asserted:

There's more here going on than meets the eye. There's more here going on than what we have been told. Clearly we are not getting the whole story here, there must be more to it.

Who just hauls off — according to her, tosses her on the ground and starts stomping her on the head repeatedly. No provocation, no reason at all. That makes no sense. That defies common sense.... She's not telling everything that happened that day.

So officers responded, [and] declined to take a report, apparently due to what she called ... her own hostility.

In response, the State asserted in its closing that Moody's mother

told him no, you can't be here anymore. The same thing [the victim] told him in 2017.

The same exact thing. He was being told no by somebody, again, that he doesn't have respect for. He doesn't have respect for his own mama enough not to beat her.

Surely some woman who he doesn't really know. What is he to her? He doesn't have to respect her. And on that day he didn't respect her.

...

And I present to you that you are getting the full story. And that the full story is that when this [d]efendant was told no and told he couldn't be somewhere that he thought he had authority to be that he resorted to violence. That's what the evidence has shown you today.

The trial court instructed the jury about the limited purpose of the other-act evidence (intent, motive, and identity) both before it was admitted during the trial and in its final charge. It also gave an instruction on an Alford plea, explaining that it is "a plea of guilty in one's best interest ... [and that] a [c]ourt may accept the guilty plea even if the Defendant insists that he or she is innocent ... [, but it] should not be accepted unless there's a factual basis for the plea."

1. Other act evidence. Moody contends that the trial court erred by admitting the 2012 incident between him and his mother for the purposes of intent, motive, and identity. With

regard to motive and identity, Moody asserts that the 2012 incident was not relevant. While he concedes that it "was relevant to intent," he contends that its prejudicial effect outweighed any probative value on the issue of intent.

Pursuant to OCGA § 24-4-404 (b) ("Rule 404 (b)"), "[e]vidence 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." However,

such other[-]acts evidence is admissible for other purposes, including to prove intent, motive, and absence of mistake or accident. The party offering evidence under Rule 404 (b) must show three things: (1) that the evidence is relevant to an issue in the case other than the defendant's character; (2) that the probative value of the evidence is not substantially outweighed by its undue prejudice; and (3) that there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.³

"A trial court's decision to admit other[-]acts evidence...