Turnbull v. State

317 Ga.App. 719

732 S.E.2d 786

TURNBULL

v.The STATE.

No. A12A1201.

Court of Appeals of Georgia.

Sept. 28, 2012.

Herbert Adams Jr., for Appellant.

Tasha Monique Mosley, Solicitor-General, for Appellee.

PHIPPS, Presiding Judge.

After a bench trial, Neville Turnbull was convicted of making harassing phone calls ¹ to his former girlfriend, N.C. He argues on appeal that the evidence was insufficient and that he was deprived of effective assistance of counsel. We affirm.

[317 Ga.App. 720]1. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ²

The state adduced the following evidence. In late November 2009, after almost a year of dating, Turnbull and N.C. broke up, and Turnbull moved out of the residence they were sharing. He took with him most of his belongings. Thereafter, Turnbull called N.C. numerous times and appeared, without invitation and without notice, at her residence. For example, there were times when she opened her garage door at about 6:00 or 7:00 a.m. to find Turnbull standing nearby; once, she woke up at about 1:30 a.m. and was startled because Turnbull was standing over her. On these occasions, typically, Turnbull claimed that he needed the remainder of his belongings. And N.C. replied that she had not yet compiled them; that when she had done so, she would call him to arrange a time for him to get all of them at once; and that, meanwhile, he should stop contacting her, reiterating that she no longer wanted a relationship with him, his companionship, nor his telephone calls.

The weekend of December 19, 2009, Turnbull called N.C. at least 15 to 20 times. She repeatedly told him to come pick up his belongings and to stop calling her. He did neither. She testified, “I was just at my wit's end. I wanted to take him everything so there would be no excuse for him to further contact me.” At a predawn hour on December 20, when N.C. believed that Turnbull would be at work until 7:00 a.m., she took all of his remaining belongings and dropped them off, along with his dog, at his apartment. She left the items on the apartment porch, and she secured the dog in a patio closet.

Within a few hours, early on December 20, 2009, N.C. was awakened at her residence when the doorbell rang. She saw Turnbull's car parked outside, ignored the bell, and readied herself for work. But when she attempted to back out of her driveway, Turnbull maneuvered his vehicle to block hers from passing down her driveway. He refused to move his car, despite her protests, so she drove across her neighbor's yard and arrived at her workplace shortly before 9:00 a.m.

By 10:30 a.m., Turnbull had made more than four or five telephone calls to N. C.'s workplace—some she accepted, others she did not. When she did not, Turnbull left messages for her with her coworkers. When she accepted his calls, he was initially apologetic, but then became threatening. He related to her that he was upset because she had brought his belongings to him the night before. But he also told her that he had called the police and insisted, “I'm going to make sure you go to jail.” By this time, N.C. had already consulted with police about the possibility of obtaining a protective order against Turnbull. She told him so, in response to his threats, revealing further that she had been advised that his conduct constituted harassment. She ended those telephone calls that she accepted by telling him to stop calling her at her workplace, to stop calling her at her home, to stop calling her cellphone, and to stop calling her friends. A few days later, she petitioned for a protective order.

Turnbull, the only defense witness, gave his account of the relationship breakup, as well as the nature and purpose of his subsequent telephone calls to her and appearances at her residence. He had determined that N.C. was cheating and sending flirtatious text messages to other men. When he confronted her, she declared: “[O]kay, it's over.” Turnbull described, “I was shocked.”

Turnbull revealed further on direct examination:

Q: [A]t what point did you discover your property was sitting on the porch where you now reside[ ]?

A: When I pulled up in my driveway.

Q: So prior to that-Because you had been at work, correct?

A: Yes, sir.

Q: So prior to pulling into your driveway, that was the first time you knew your belongings were there?

A: Yeah, I saw them laid out—I'm on the bottom apartment, and I saw them just laid out, stacked up there as soon as I was pulling in.

According to Turnbull, it was not he who rang N. C.'s doorbell early on December 20; it was the police. Because N.C. had refuted his prior attempts to collect the remainder of his belongings, he had summoned the police to meet him there that morning. When the responding officers received no answer, they left the scene about 20 minutes later; Turnbull stayed. As soon as the police drove away, the garage door opened and N.C. cruised past him-laughing, he recalled.

Turnbull drove to his apartment and called N. C.'s workplace. He was asked on direct examination, “And when you were calling her at her job, after you found that your stuff was on the porch, what was the purpose of calling her?” He answered, “It was to where my dog was because ... [h]e wasn't on the porch .... [S]omeone could've taken the dog away while I was, you know, at work because I didn't even know my stuff was there.” On cross-examination, the issue was revisited with Turnbull:

Q: But your property ... was returned on December 19; is that right?

A: It was returned. There was some stuff missing actually, which I made

a report to Cobb County police station.

Q: Okay. But it was returned?

A: It was on the porch.

...

Q: And after that, December 20th, you kept making calls to her; isn't that right?

A: That's a negative.

Indeed, Turnbull denied making any calls—either that day or during that weekend—for the purpose of harassing N.C. Further, Turnbull maintained that he had neither told her he would put her in jail nor otherwise threatened her.

Turnbull's trial lawyer asked for a directed verdict, which motions were denied.³ Turnbull's trial lawyer took the position during closing argument that the evidence showed that Turnbull was calling his former girlfriend for the legitimate purpose of regaining possession of his belongings and that the state had failed to prove that he had the intent to harass her. After the state delivered its closing argument, the trial judge remarked that she had found parts of Turnbull's testimony inconsistent with other parts and that he was not credible. Judgment was entered upon the guilty finding.

On appeal, Turnbull disputes the sufficiency of the evidence, arguing specifically: “There was adequate evidence to support his contention that his calls to [N.C.] were for the purpose of retrieving his property, not to harass [her].” This argument is “nothing more than [Turnbull's] disagreement with the credibility determinations made by the trial judge. However, decisions regarding credibility are uniquely the province of the trier of fact.” ⁴

In a bench trial, the trial judge sits as the trier of fact.⁵ In that role, the trial judge is not required to believe a defendant's testimony, nor to disbelieve the state's witnesses. ⁶ The trial judge “may accept or reject any part of a witness's testimony.” ⁷

Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and the appellate court construes the evidence in favor of the judge's determination of the defendant's guilt. The appellate court does not weigh the evidence or determine witness credibility, but merely determines the sufficiency of the evidence.⁸

Although Turnbull maintains that his calls to N.C. were not intended to harass her,

intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Furthermore, where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.⁹

Having construed the evidence in the light most favorable to the trial judge's determination of Turnbull's guilt, we conclude that there was sufficient evidence for the trial judge to have found beyond a reasonable doubt that Turnbull placed telephone calls to N.C. for the purpose of harassing her. ¹⁰

2. Turnbull contends that the trial court erred in rejecting his claim of ineffective assistance of counsel.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington,¹¹ that counsel's performance was deficient and that the deficient performance was prejudicial to his defense.¹² Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. ¹³ In reviewing a trial court's determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court's factual findings unless they are clearly erroneous; we review the trial court's legal conclusions de novo.¹⁴ “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, it is not incumbent upon the reviewing court to examine the other prong.” ¹⁵

(a) Turnbull asserts that his trial lawyer failed to adequately prepare him for testifying. He claims that his lawyer did not meet with him a sufficient number of times and he points out that the trial transcript does not show that he was...