Wilkey v. State

1

WILKEY v. THE STATE.

No. A23A0431

Court of Appeals of Georgia, First Division

June 20, 2023

BARNES, P. J., DOYLE, P. J., and LAND, J.

DOYLE PRESIDING JUDGE.

Following a jury trial, Gregory Eugene Wilkey was convicted of family violence aggravated assault, family violence aggravated battery, false imprisonment, and family violence battery.^[1] He appeals from the denial of his motion for new trial, arguing that there was insufficient evidence to support his conviction for false imprisonment, that his family violence aggravated assault conviction should have merged with his family violence aggravated battery conviction for sentencing purposes, that the trial court erred by not allowing the admission of his entire statement to police under the rule of completeness, and that he received ineffective assistance of counsel. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict,^[2] the record shows that Wilkey met the victim in October 2012 and that the couple was married in February 2013. On the morning of April 4, 2013, Wilkey asked his wife for money to buy a spare tire so he could drive to work. She told Wilkey that she did not have any cash, and during their conversation she noticed that Wilkey was acting very agitated. Thus, she locked herself in the bathroom and called 911. Officers from the Cartersville Police Department responded to the house and told the parties to get some rest; when they left, the victim was lying down in the bedroom and Wilkey was on the couch in the living room.

Immediately after the officers left, Wilkey went into the bedroom, told his wife the police had left, grabbed her phone, and hit her in the face with his fist. The victim rolled over and felt Wilkey choking her. She managed to get up and run toward the door, but Wilkey hit her again in the face, knocking her back onto the bed. He then tied her hands with a string and hit her again. The victim begged Wilkey to stop, telling him that she could not breathe and that she needed her inhaler, which was in her car. Wilkey untied his wife's hands, held her arm as he led her to the living room and sat her down on the couch but said she could not leave because he knew she would "make a scene" as soon as she went outside.

Eventually the victim convinced Wilkey to let her go to her car. He held her arm until she got into the passenger seat, then pulled down the sun visor, opened the mirror, and told her to clean up her face. As Wilkey walked around to the driver's side, the victim jumped out of the car and ran into a building, where employees called 911.

The same officers who had responded to the victim's earlier call also responded to the second call. The victim told them Wilkey had attacked her. She had a broken nose, bruising on her jaw, neck, chest, arms, and wrists, and needed stitches near her eye.

Officers put out a "Be On The Lookout" for Wilkey and his vehicle, and deputies with the county police department located his vehicle at a nearby home. When an officer from the city police department arrived at the home, he walked in the house with the deputies. Wilkey was inside the residence talking on the phone, and after an officer told him to hang up, Wilkey said to the person on the phone, "I'm fixing to go to jail." Police then asked Wilkey what happened after they left his home that morning, and he denied any knowledge of his wife's injuries.

Wilkey was charged with family violence aggravated assault, family violence aggravated battery, false imprisonment, and family violence battery. The jury found Wilkey guilty on all counts, and the trial court imposed a recidivist sentence of 30 years with 20 to serve in confinement. Wilkey filed a motion for new trial, which the trial court denied. He then filed this appeal.

1. Wilkey argues, first, that there was insufficient evidence to support his conviction for false imprisonment. He acknowledges the victim testified that Wilkey tied her hands, but contends that this evidence was insufficient to support a conviction because there was no physical evidence, such as marks or injuries on her wrists, and because her testimony at trial differed from the account she gave at the hospital immediately after the incident.

When we consider the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and inquire only whether any rational trier of fact might find beyond a reasonable doubt that the defendant is guilty of the crimes of which he was convicted. Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.^[3]

"Accordingly, the jury's verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."^[4]

Under OCGA § 16-5-41 (a), false imprisonment occurs when a person, "in violation of the personal liberty of another, . . . arrests, confines, or detains such person without legal authority." "Whether [a] detention amounted to false imprisonment [is] for the jury to decide[,]" and even a brief detention can be sufficient.^[5]

In this case, there was clearly sufficient evidence to support a conviction for false imprisonment. The victim testified that Wilkey tied her hands and kept her in the bedroom, and that he subsequently prevented her from leaving the living room. In light of this testimony, the jury was authorized to find Wilkey guilty of false imprisonment beyond a reasonable doubt.^[6] Additionally, to the extent the victim's testimony at trial may have differed from how she previously described the incident, any "conflicts between the victim's testimony at trial and the victim's out-of-court statements were for the jury to resolve."^[7]

2. Wilkey argues that the trial court erred in failing to merge his convictions for family violence aggravated assault and family violence aggravated battery. We discern no error.

"Whether offenses merge is a legal question, which [the appellate court] review[s] de novo."^[8] To determine whether multiple convictions merge for purposes of sentencing, we must apply the "required evidence" test and determine "whether each provision requires proof of a fact which the other does not."^[9] Further, our law is clear that "when one crime is completed before the other begins, there is no merger."^[10]

Applying these principles, the Supreme Court of Georgia has held that "[i]n order for [a defendant's] aggravated assault and aggravated battery counts to be treated as distinct criminal acts, there must be a 'deliberate interval' between the completion of one offense and the start of the other."^[11]

Here, Wilkey was charged with family violence aggravated battery for making "an assault upon the [victim] with [his] hands and fists . . ., objects which when used offensively against a person are likely to result in serious bodily injury, by repeatedly striking [the victim] about the face with the hands of said accused, resulting in bruising, a laceration and a broken facial bone[.]" He was charged with family violence aggravated battery for intentionally causing "bodily harm to [the victim] by seriously disfiguring said person's face, a member of said person's body, by repeatedly striking said person about her face resulting in a laceration and a broken facial bone[.]"

At trial, the State presented evidence that Wilkey struck the victim's face or head on more than one distinct occasion during the attack. Specifically, the victim testified that Wilkey struck her first while she was lying in bed and again after she escaped from his grasp and ran toward the door. Thus, "the evidence shows a pause sufficient to constitute a deliberate interval," and there is no merger.^[12]

3. Wilkey contends that the trial court erred under the rule of completeness by excluding his answers to police questioning - in which he stated that he left the house right after the officers did and that he did not know anything about the victim's injuries - while admitting the statement he made over the phone - in which he said that he would be going to jail.

The rule of completeness provides, generally, that where part of a conversation is admitted into evidence, "it is the right of the accused to bring out other portions of the same conversation[.]"^[13] The appellate court reviews the trial court's ruling on this issue for abuse of discretion.^[14]

The trial court issued its ruling on this issue during a bench conference at the start of the trial, when the State made an oral motion in limine. As context for its motion, the State explained that Wilkey was on his phone when officers found him at a relative's house, and they overheard Wilkey say, "I'm fixing to go to jail," before he hung up the call. When officers subsequently questioned Wilkey, he said that he left his house right after the officers left that morning and that he did not know anything about his wife's injuries.

In its motion in limine, the State argued that Wilkey should not be permitted to introduce his response to the officers' questioning as evidence at trial because his statement was hearsay. Wilkey contended that the statement was admissible as a present sense impression or excited utterance, but the trial court rejected those arguments and ruled that the statement could not be presented as evidence.

Wilkey then asked the court to exclude the State from introducing the statement he said on the phone - "I'm fixing to go to jail" - but the State contended that this statement was admissible as a party admission. The State further argued that the statements were made in different...