State v. Stubbs

365 Ga.App. 630

879 S.E.2d 716

The STATE

v.STUBBS.

A22A1449

Court of Appeals of Georgia.

October 17, 2022

Randal Matthew McGinley, District Attorney, Alexandra Jewel Stone, Assistant District Attorney, for Appellant.

Stephanie Kate Tomys, for Appellee.

Barnes, Presiding Judge.

The State filed an accusation in Newton County charging Terri Stubbs with three counts of terroristic threats based upon the allegation that, using Instagram, she threatened to kill her sister and two nieces. The trial court sustained Stubbs's plea in bar and granted her motion to dismiss the accusation for lack of venue. The State appeals, arguing that the trial court erred in considering the venue question in the context of a pretrial motion seeking dismissal of the accusation. The State further argues that the trial court erred in finding that the State could not establish venue in Newton County. For the reasons discussed below, we reverse.

The following facts are undisputed. In April 2021, sheriff's deputies responded to a home in Newton County based on a complaint of harassing calls. Upon arrival, the deputies spoke with Stubbs's sister, who stated that Stubbs had threatened her and her two daughters and "was on her way to find them." Stubbs made the threats in voice messages that she sent through Instagram. In the voice messages, recordings of which are in the State's possession, Stubbs said that she was "going to war," that she "had bullets" for her sister and two nieces, and that they were "going to swallow these bullets." Stubbs did not live in Georgia, and the State conceded that it had no evidence that Stubbs was in Georgia when she recorded the voice messages and sent them through Instagram. The voice messages were received by Stubbs's sister and nieces in Newton County.

After she was charged by accusation with three counts of terroristic threats based on the Instagram voice messages, Stubbs filed a plea in bar seeking dismissal of the accusation for lack of venue on the ground that it was undisputed that the State could not prove that she was in Georgia when she sent the messages to her family members. The State responded that Stubbs's motion was procedurally defective because the question of venue should be left to the jury for resolution, but that if the trial court reached the issue, the court should find that venue was proper in Newton County because the Instagram voice messages were communicated to Stubbs's family members in that county.

The trial court agreed with Stubbs and granted her plea in bar for lack of venue. The trial court concluded that it had authority to rule on the venue question in the context of a pretrial plea in bar. The trial court further noted that OCGA § 17-2-2 (d) provides that if a crime is commenced outside of Georgia but consummated within Georgia, venue is proper in the county where the crime is consummated, and the court reasoned that the crime of terroristic threats is consummated where the threat is made rather than where the threat is received by the victim. Because the undisputed facts were that Stubbs lived in another state and that there was no evidence that Stubbs was in Georgia when she recorded and sent the Instagram voice messages, the trial court concluded that venue was not proper in Newton County and dismissed the accusation. This appeal followed.

1. As a threshold matter, the State contends that the trial court erred in considering the issue of venue in the context of a pretrial motion seeking dismissal of the accusation. We disagree.

"[V]enue is a jurisdictional fact the State must prove beyond a reasonable doubt in every criminal case." (Citation and punctuation omitted.) Worthen v. State , 304 Ga. 862, 865 (3) (a), 823 S.E.2d 291 (2019). In Georgia, a defendant may challenge venue through the filing of a pretrial motion seeking dismissal of the indictment or accusation. See McKinney v. State , 282 Ga. 230, 232, 647 S.E.2d 44 (2007) ; State v. Hasson , 334 Ga. App. 1, 2-3 (1), 778 S.E.2d 15 (2015) ; State v. Barber , 193 Ga. App. 397, 398-399, 388 S.E.2d 350 (1989). In ruling on such a motion, the trial court cannot resolve disputed questions of fact pertaining to venue, which are reserved for the jury. Compare State v. Al-Khayyal , 322 Ga. App. 718, 725, 744 S.E.2d 885 (2013) (reversing the trial court's grant of a pretrial motion to dismiss the indictment for lack of venue because the record did not establish "that it [would] be impossible for the State to prove that [the defendant] committed the offenses in [the county] ... alleged in the indictment"; explaining that there remained questions of fact regarding venue that "cannot be determined as a matter of law at this pretrial stage"), disapproved on other grounds by Hill v. State , 360 Ga. App. 143, 146, n. 4, 860 S.E.2d 893 (2021), and State v. Evans , 212 Ga. App. 415, 417, 442 S.E.2d 287 (1994) (concluding that the trial court "erred in making findings of facts on the venue issue" in ruling on the defendant's motion to dismiss the indictment because "[t]hese factual issues are for the jury"), with Barber , 193 Ga. App. at 397-399, 388 S.E.2d 350 (affirming the trial court's grant of the defendant's pretrial plea of improper venue, where the State could not prove venue in the county alleged in the indictment under "[t]he relevant facts, as stipulated by the parties").

The State, however, relies on State v. Hasson , 334 Ga. App. 1, 778 S.E.2d 15 (2015), to argue that a trial court cannot address venue in the context of a pretrial motion to dismiss but instead must reserve the matter for the jury. The State's reliance on Hasson is misplaced. In Hasson , we reversed the trial court's pretrial ruling to transfer a criminal case from one county to another on the ground of improper venue. Id. at 2-4 (1), 778 S.E.2d 15. But we expressly noted that the defendant had filed a motion to transfer rather than a "pretrial motion seek[ing] dismissal of the ... indictment based on improper venue," id. at 2 (1), 778 S.E.2d 15, and we cited to Georgia cases indicating that a defendant can challenge venue through the latter type of motion. See id. at 2-3 (1), 778 S.E.2d 15. Thus, as we made clear in Hasson , that case is procedurally distinct from cases like the present one involving a pretrial motion seeking to dismiss the indictment or accusation for lack of venue. Moreover, in Hasson , we noted that the trial court improperly made a "per se" factual determination regarding where venue was appropriate and that such a determination was "reserved for the finder of fact at trial." See id. at 3 (1), 778 S.E.2d 15. In contrast, Stubbs's plea in bar did not seek to have the trial court resolve any disputed issues of fact pertaining to venue, and the trial court only considered and relied upon facts agreed upon by the parties. Consequently, Hasson is distinguishable from the present case and provides no basis for reversal.

2. The State further argues that the trial court erred in concluding that venue could not be established in Newton County. According to the State, venue was proper in Newton County because Stubbs's threatening voice messages were communicated to and received by her sister and nieces in that county. We agree.

"Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed." (Citation and punctuation omitted.) Bowen v. State , 304 Ga. App. 819, 822-823 (1) (b), 697 S.E.2d 898 (2010). See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. " OCGA § 17-2-2 (a) gives effect to this constitutional mandate by providing that ‘criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.’ " State v. Kell , 276 Ga. 423, 425, 577 S.E.2d 551 (2003). In evaluating a trial court's ruling on a pretrial motion seeking dismissal of the indictment or accusation for lack of venue, we apply a de novo standard of review. Al-Khayyal , 322 Ga. App. at 721, 744 S.E.2d 885.

Because the terroristic threats statute, OCGA § 16-11-37, does not contain a venue provision, "we begin our review with the language used to define the crime in the statute," Babbitt v. State , 314 Ga. App. 115, 116 (1), 723 S.E.2d 10 (2012), and we focus on the key verbs defining the offense. See Kell , 276 Ga. at 425, 577 S.E.2d 551. OCGA § 16-11-37 provides in relevant part that "[a] person commits the offense of a terroristic threat when he or she threatens to ... [c]ommit any crime of violence ... [w]ith the purpose of terrorizing another." OCGA § 16-11-37 (b) (1) (A), (2) (A). Under this statutory provision, "the State must establish two elements to sustain a conviction for making terroristic threats: (a) that the defendant threatened to commit a crime of violence against the victim, and (b) that the defendant did so with the purpose of terrorizing the victim." Clement v. State , 309 Ga. App. 376, 379 (1), 710 S.E.2d 590 (2011). "With regard to the first element, the plain and ordinary meaning of the word ‘threat’ refers to a communication, declaration, or expression of an intention to inflict harm or damage." (Citation and punctuation omitted.) Bryant v. State , 306 Ga. 687, 690 (1) (a), 832 S.E.2d 826 (2019). Hence, a conviction for making terroristic threats contemplates proof that the defendant communicated a threat to the victim with the intent to terrorize. See id.; Carver v. State , 258 Ga. 385, 386 (1), 369 S.E.2d 471 (1988). The threat can be communicated directly to the victim or "in such a way as to support the inference that the [defendant] intended or expected it to be conveyed to the victim." (Citation, punctuation, and emphasis omitted.) Steplight v. State , 301 Ga. 272, 275 (1), 800 S.E.2d 548 (2017).

While the General Assembly has not specifically identified where a communication occurs for purposes of the terroristic threats statute, "[i]n other contexts, we have held that venue in communication-based crimes is proper in either the county...