Fleming v. State
324 Ga. App. 481
Ga. Ct. App.2013Background
- Victim lived across from Fleming in a mobile home park; Fleming frequently played very loud music from his car, sometimes waking the victim.
- One morning the victim parked his truck to block Fleming’s driveway; Fleming confronted him, threatened to break the truck’s windows, then returned to his trailer and picked up a brick.
- Fleming threw the brick at the victim’s truck, causing over $500 in damage. The parties then argued and Fleming punched the victim, who suffered visible facial injuries.
- Fleming was convicted by a jury of battery (OCGA § 16-5-23.1(a)) and criminal damage to property in the second degree (OCGA § 16-7-23(a)(1)). He moved for a new trial, raising sufficiency, failure to charge justification/habitation, and ineffective assistance of counsel claims.
- The trial court denied the motion; Fleming appeals. The appellate court reviews the evidence in the light most favorable to the verdict and affirms.
Issues
| Issue | Fleming's Argument | State's Argument | Held |
|---|---|---|---|
| Failure to charge justification/defense of habitation for property damage | Court should have instructed jury on justification/habitation as Fleming’s sole defense | Justification/habitation does not apply to use of force against property and no evidence victim was entering/attacking habitation | No plain error; habitation defense inapplicable to property and not supported by facts; charge not warranted |
| Sufficiency of evidence for battery | Fleming acted in self-defense when he punched the victim after being provoked with a slur and swung at | Victim’s testimony showed Fleming was aggressor and inflicted visible bodily harm | Evidence sufficient; jury could reject self-defense and find visible bodily harm, supporting battery conviction |
| Sufficiency of evidence for criminal damage to property | Fleming was justified (defense of habitation) in throwing brick to get truck moved | Fleming threw brick to make victim move truck; no attack/entry on habitation; damage over $500 established | Evidence sufficient; habitation defense inapplicable and element of >$500 damage satisfied |
| Ineffective assistance of counsel (multiple subclaims) | Counsel failed to object to testimony about missed internal affairs appointment, failed to call corroborating witnesses, and failed to move to dismiss for speedy trial delay | Objections would be futile; additional witnesses would be cumulative; speedy-trial claim lacks demonstrated prejudice | Counsel not ineffective: (a) testimony not improper comment on silence so objection would be futile; (b) failure to call cumulative witnesses not deficient; (c) speedy-trial claim fails because delay did not cause actual prejudice and Fleming delayed asserting right |
Key Cases Cited
- Philpot v. State, 311 Ga. App. 486 (evidence viewed in light most favorable to verdict)
- Allen v. State, 290 Ga. 743 (plain-error four-part test for unobjected jury charge)
- Coleman v. State, 286 Ga. 291 (defense of habitation requires victim attempting unlawful entry or attack at time force used)
- Muckle v. State, 307 Ga. App. 634 (self-defense unavailable to initial aggressor unless withdrawal)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
- Barker v. Wingo, 407 U.S. 514 (speedy trial balancing test)
- Doggett v. United States, 505 U.S. 647 (presumptively prejudicial delay and prejudice analysis)
- Chalk v. State, 318 Ga. App. 45 (application of Barker/Doggett factors in Georgia cases)
- Elsasser v. State, 313 Ga. App. 661 (criminal damage conviction where damage threshold met)
- Wesley v. State, 286 Ga. 355 (failure to make meritless objection is not ineffective assistance)