Ward v. State

902 S.E.2d 211

WARD

v.The STATE.

A24A0174

Court of Appeals of Georgia.

May 23, 2024

Frances C. Kuo, Lawrenceville, for Appellant.

Benjamin Bruce Kenemer, Walter Fayette Eddy, for Appellee.

Hodges, Judge.

Following a jury trial, Gregory Lamar Ward was convicted as a recidivist of felony-level family violence battery (OCGA § 16-5-23.1 (a), (f) (2)). The trial court denied his motion for a new trial, and he filed the instant appeal. In it, he argues that: (1) the trial court failed to exercise its discretion in considering the general grounds (OCGA §§ 5-5-20, 5-5-21); (2) the evidence was insufficient to sustain his conviction; (3) the trial court erred in admitting his 2018 conviction for family violence battery under OCGA § 24-4-404 (b) ("Rule 404 (b)"); (4) the trial court gave an erroneous Rule 404 (b) jury instruction; and (5) the trial court also erred in admitting certain out-of-court statements for impeachment purposes.¹ For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict,² the evidence adduced at trial shows that on the night of September 27, 2020, witness Angela Withers heard her apartment complex neighbor, Rebecca Simpson, screaming for her sister, who also lived nearby. Withers did not see what was going on because she was indoors, while Simpson was outside. Because Simpson sounded "scared[,]" Withers called 911. Officer Bobby Elswick with the Dalton Police Department responded to the scene. He found Simpson in the doorway of her apartment, in the rain, "hysterical" and "crying." She was holding a bloody, wet rag to her mouth and had visible cuts inside her lips, with visible swelling on the right side.

Elswick testified that, at the scene, Simpson told him Ward "struck her in the face four times." A witness told the officer that Ward "ran across the street towards a warehouse." Elswick and another officer found Ward "hiding" in the trailer of a semitruck, filled with carpet rolls, that was backed up to a loading dock.

Simpson testified at trial, however, that she accidentally slipped and fell on the rainslick tiled floor of her entryway and could not get up because she has a bone disease and a bad knee. She and Ward had been arguing inside her apartment. They had been in a romantic relationship for about a month and a half. Simpson and Ward were both "[v]ery" intoxicated, and Simpson was yelling at Ward because he had left her somewhere and she was "jealous" that he had been with another woman. She was attempting to leave and when Ward "grabbed" her to prevent her from going, she "slipped." When Ward tried to pick her up, she could not raise her knee. She testified that Ward’s forearm hit her lip, causing her tooth to cut into it, and she crawled outside and walked to her sister’s home. By this time, Ward "had done left."

At trial, Simpson denied telling the officer that Ward hit her, instead testifying that she only "said it felt like I had been beat in the face a thousand times" or "felt like I'd been hit about four or five times." She then testified, contrary to her earlier testimony, that she did not tell the officer Ward tried to pick her up, but only that she had slipped, and Ward’s arm "caught [her] lip[,]" accidentally injuring her. Elswick testified, by contrast, that Simpson did not tell him it only "fe[lt] like" she was hit in the face four times. He testified that on the night of the injuries, Simpson said nothing to him about an accidental injury or a slip-and-fall. Elswick did not have a body-cam, so there is no footage of his interaction with Simpson.

At trial, Simpson testified that she was still in touch with Ward, he had expressed affection for her since the injuries, she loved him and wanted a favorable result for him in com4, and he had apologized to her for what happened on the date she was injured.

[1–4] 1. Ward’s motion for new trial relied in part upon OCGA §§ 5-5-20 and 5-5-21, invoking the trial court’s discretion as the thirteenth juror to set the verdict aside as contrary to the principles of justice and equity, because of the conflicting testimony from Simpson and Elswick regarding whether Simpson’s injuries were the result of an accident or Ward’s intentional actions. On appeal, Ward contends the record shows no evidence that the trial court exercised its discretion in denying his motion for new trial. We find no error.

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is "contrary to … the principles of justice and equity," OCGA § 5–5–20, or if the verdict is "decidedly and strongly against the weight of the evidence." OCGA§ 5–5–21. When properly raised in a timely motion, these grounds for a new trial — commonly known as the "general grounds"—require the trial judge to exercise a broad discretion to sit as a thirteenth juror. In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict — it nevertheless is, generally speaking, a substantial discretion.

(Citations and punctuation omitted.) Allen v. State, 296 Ga. 738, 740 (2), 770 S.E.2d 625 (2015).

Although Ward argues that the record contains no evidence shoving the trial court exercised its discretion, this is incorrect. At the hearing on Ward’s motion for new trial, Ward’s attorney asked the trial court to sit as the thirteenth juror to consider conflicting witness testimony. In its order, the trial court stated that, "[h]aving reviewed the [d]efendant’s [m]otion, the record in this case, and having heard the arguments of counsel, the [c]ourt hereby DENIES the [d]efendant’s [m]otion for [n]ew [t]rial." The trial court’s order in Allen, supra, was remarkably similar. It said: "After considering the record in this case, the Defendant’s amended motions for new trial, the State’s response in opposition at the hearing in this case, and the arguments by both the defendant and State on the issues contained therein, the Defendant’s motion for new trial is hereby DENIED." 296 Ga. at 740-741 (2), 770 S.E.2d 625. In assessing this order, the Supreme Court found:

Nothing in this order indicates that the trial court failed to perform its duty to exercise its discretion and weigh the evidence in its consideration of the general grounds. The court did not state the incorrect standard in its order, and nothing in the record indicates that the court was unaware of its responsibility.

(Citations and punctuation omitted.) Allen, 296 Ga. at 741 (1), 770 S.E.2d 625; accord Drennon v. State, 314 Ga. 854, 860 (2), 880 S.E.2d 139 (2022) (explaining that when a trial court evaluates the general grounds as the "thirteenth juror," we presume that the court understood the nature of its discretion and exercised it, unless the record shows otherwise, even if the court did not explicitly mention its discretion with respect to the general grounds). In addition, after hearing the evidence and arguments of counsel, the trial court in the instant case said it would "take it under advisement" before returning a decision. See Leggett v. State, 331 Ga. App. 343, 345 (2), 771 S.E.2d 50 (2015) (finding, where trial court clearly indicated it would not rule on motion for new trial until it had reviewed the transcript, then entered an order noting it had "heard the evidence and argument of counsel[,]" that the appellate court "will not presume the trial court committed error where that fact does not affirmatively appear") (citation and punctuation omitted). "Under these circumstances, [Ward] has not shown that the trial court erred in denying his motion on the general grounds alleged." Caviston v. State, 315 Ga. 279, 284 (1), 882 S.E.2d 221 (2022).

[5–7] 2. Ward argues that the evidence was insufficient to sustain his conviction for family violence battery because the State failed to prove that Ward and Simpson were household members and also failed to prove Ward’s intent. We disagree.

In considering the sufficiency of the evidence supporting a criminal 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. It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted; emphasis in original.) Percell v. State, 346 Ga. App. 219, 219-220 (1), 816 S.E.2d 344 (2018).

OCGA § 16-5-23.1 provides, in pertinent part, that:

(a) A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.

(b) As used in this Code section, the term "visible bodily harm" means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts….

[…]

(f) (1) As used in this subsection, the term "household member" means past or present spouses … or other persons living or formerly living in the same household.

(2) If the offense of battery is committed between household members, it shall constitute the offense of family violence battery ….

Ward concedes in judicio that Simpson sustained visible...