Bolden v. the State
335 Ga. App. 653
Ga. Ct. App.2016Background
- Bolden was convicted of kidnapping with bodily injury, aggravated assault (family violence), rape, two counts of burglary, and cruelty to children; he moved for a new trial which was denied and appealed.
- Facts (viewed in the light most favorable to the verdict): Bolden entered the victim’s unlocked back door armed with knives, assaulted and threatened the victim and her family, forced sexual acts and later raped her (anal and vaginal penetration), and transported the victim and children in a vehicle before abandoning the children and fleeing; police later arrested Bolden.
- At trial, the indictment charged burglary as unauthorized entry into the victim’s residence with intent to commit rape and aggravated assault (i.e., intent formed before entry).
- The trial court’s jury instruction initially defined burglary to include entering or "remaining in" any room or part of a dwelling with intent to commit a felony; after the jury asked a question about formulating intent after entry, the court referred jurors to the indictments but again used language referencing "any room or part of [the dwelling]."
- Bolden argued on appeal that (1) the rape and an aggravated assault count should have merged, (2) the trial court improperly questioned a State witness, and (3) trial counsel was ineffective for failing to object to the burglary jury charge that expanded means of committing burglary beyond the indictment.
Issues
| Issue | Bolden's Argument | State's Argument | Held |
|---|---|---|---|
| Whether rape and aggravated assault should merge | Aggravated assault (choking) was part of the same conduct as the rape and must merge | Choking was a separate, distinct act of force/injury outside rape | Not merged — convictions for both upheld |
| Whether trial court’s questions to police witness impermissibly placed character in evidence | Court’s questions (identity, child support) showed disapproval and bore on character; error | Court’s questions sought clarification and did not express opinion or argue | No error — questioning permissible to develop truth |
| Whether jury instruction on burglary deviated from indictment (inclusion of "remain" and "any room or part of it") | Instruction expanded burglary to means not alleged; counsel’s failure to object was ineffective assistance | Court’s re-charge and referral to indictment cured error | Error in jury charge created reasonable possibility jury convicted on unalleged manner; counsel ineffective for not objecting; new trial granted on burglary counts only |
| Whether counsel’s failure to object prejudiced trial outcome | Failure allowed a legally defective jury instruction that could have produced conviction on uncharged theory | (Implicit) Any error was harmless given evidence of entry with preexisting intent | Court finds prejudice exists and reverses burglary convictions; other convictions affirmed |
Key Cases Cited
- Ledford v. State, 289 Ga. 70 (2011) (same-conduct test for merger of offenses)
- Drinkard v. Walker, 281 Ga. 211 (2006) (required-evidence test for merger)
- Smith v. State, 310 Ga. App. 418 (2011) (instruction deviating from indictment may violate due process; limiting instruction required)
- Machado v. State, 300 Ga. App. 459 (2009) (court considers jury charge as a whole; limiting instructions can cure deviation)
- Lumpkin v. State, 249 Ga. 834 (1982) (referring jury to indictment can cure certain charging errors when jury is limited to specific method charged)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)