Appellant Curtis Bell was found guilty of the malice murder of Gloria Jackson, the burglary of her home, armed robbery, aggravated assault, and forgery. 1 On appeal he takes issue with the sufficiency of the evidence, several evidentiary rulings, a jury instruction, and several of the sentences imposed following the jury’s return of its guilty verdicts.
The State presented evidence that Gloria Jackson was found dead in her Fitzgerald home in the late afternoon hours of September 19, 2003. She last had been seen alive that day by a neighbor between 9:00-9:30 a.m. The deputy chief medical examiner testified the victim had died from loss of blood resulting from blunt force injuries to her head and face that had fractured her skull and many of the bones on the left side of her face. A handwriting expert testified that a personal check written on the victim’s account with appellant as the payee wаs not written by the victim, and a fingerprint expert testified that the thumbprint of the person cashing the check that was affixed to the check by bank personnel when it was presented was that of appellant. The bank teller *791 identified appellant as the person who presented the check at the victim’s bank at 9:53 a.m. on the day the victim was found. In an audiotaped statement to investigating officers, appellant said the victim owed him $300 for tree pruning and he approached her for payment on September 19. The victim wrote him a check for $100 and when she lookеd for aspirin that appellant had requested, appellant found a tree limb with a metal “stob,” entered the victim’s home and used the tree limb to strike the victim on the head. When the victim collapsed on her sofa, he continued to strike her, hitting her a total of four times. He then left, taking the tree limb and the victim’s wallet and checkbook with him. He wrote a check to himself for $200 on the victim’s account and presented it to the victim’s bank for payment. The checkbook and wallet were recovered from the roadside where appellant told GBI agents he had thrown them from his car; the tree limb was not recovered, but a blood-covered piece of metal was found under the victim on the sofa.
1. Appellant contends his motion for directed verdict of acquittal on all charges except burglary was erroneously denied because there were no witnesses or direct evidence linking appellant to these crimes. Appellant’s inculpatory statement to investigators and the bank teller’s identification of him as the person who uttered the forged check is direct evidence of guilt. See
White v. State,
However, OCGA § 16-1-7 (a) (1) prohibits a defendant of being convicted of more than one crime when the same conduct of the accused establishes the commission of more than one crime and one crime is included in the оther. The aggravated assault conviction is included in the malice murder conviction under OCGA § 16-1-6 (1)
*792
since the same conduct of the defendant (beating the victim about the head and face with a tree limb) establishes the commission of both aggravated assault and malice murder, and aggravated assault is “established by proof of the same or less than all the facts that were required to establish proof of the [murder] offense.”
Drinkard v. Walker,
There is evidence appellant committed the crime of forgery in the first degree in that, with intent to defraud, he made and possessed a check purportedly with the authority of the victim who had not given authоrity, and uttered that check. OCGA § 16-9-1 (a). Appellant contends his motion for directed verdict of acquittal as to the forgery charge should have been granted because venue of the forgery charge was not proved.
Generally, “all criminal cases shall be tried in the county where thе crime was committed. . . .” Ga. Const. 1983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2 (a).
*793
(Punctuation omitted.)
Jones v. State,
*792 Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. [Cits.] “Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt.” [Cits.] Proof of venue is a part of the State’s case, and the State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal. [Cits.]
*793
Uttering or delivering the writing being an essential element of forgery in the first degree, the offense is not completed until the writing is uttered or delivered, and venue lies in the county in which the unauthorized writing was uttered.
Cade v. State,
2. Appellant contends the trial court erred when it allowed the State to introduce into evidence the statement he had made tо the investigating GBI agents and local police. Appellant maintains he was under the influence of cocaine when he spoke with the law enforcement personnel and did not possess the ability to knowingly and intelligently waive his constitutional rights and could not have freely and voluntarily made the statement to the investigators.
At the hearing held pursuant to
Jackson v. Denno,
*794 In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preрonderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson v. Denno hearing will be upheld on appeal.
Roberts v. State,
3. Aрpellant complains of a violation of due process of law and his right to a fair trial in the second sentence of the trial court’s instruction to the jury regarding its consideration of the credibility of the accused as a witness. After instructing the jury that it was to determine the credibility of the witnessеs and, in passing on their credibility, the jury could consider a number of factors, including a witness’s “interest or lack of interest,” the trial court told the jury that
when the accused testifies, he at once becomes the same as any other witness and his credibility is to be tested by and subject to the same tests as are legally applied to any other witness. In determining the degree of credibility that should be accorded his testimony, you may take into consideration the fact that he is interested in the result of the prosecution.
As appellant acknowledges, we have approved as a correct statement of law an instruction that, in assessing the credibility of witnesses, the jury may take into consideration the fact that the defendant who testifies is interested in the outcome of the prosecution.
Johns v. State,
4. During the triаl and at the sentencing hearing, the State introduced certified copies of appellant’s previous convictions for aggravated assault and carrying a pistol without a license (1985) and possession of a firearm by a convicted felon and possession of a sawed-off shotgun (1997). Appellant contends the convictions should not have been admitted into evidence because they were the result of appellant’s entry of guilty pleas without benefit of counsel. The trial transcript reflects that defense counsel affirmatively stated he had no objection to the admission of the certified copies during the trial; the transcript of the sentencing hearing contains defense counsel’s statement that he had “no problem with the Court taking into consideration ... this previous felony conviction back in 1985 and also one in 1997.” Appellant’s failure to object when the certified copies of his prior convictions were admitted into evidence constitutes a waiver of appellant’s ability to raise on appeal the propriety of their admission.
Bridges v. State,
5. When the trial court sentenced appellant for the armed robbery conviction, the court imposed a 30-year sentence. Appellant contends such a sentence is erroneous and the State agrees. See OCGA § 16-8-41 (armed robbery is punished by life imprisonment or for a term of imprisonment of between ten and twenty years). Accordingly, the sentence for armed robbery is vacated and the case remanded to the trial court for resentencing on that conviction.
Judgment affirmed in part and vacated in part; sentence vacated in part and case remanded for resentencing.
Notes
The victim was found dead on September 19, 2003. Appellant was arrested on September 22, 2003, and the grand jury returned a true bill of indictment against him on January 12, 2004. While the district attorney filed notice of intent to seek the death penalty on July 13, 2004, the trial held June 27-28, 2006, was not a death penalty trial. The jury returned its guilty verdicts on June 28 and the trial court imposed sentence the same day. Appellant’s motion for new trial was timely filed on July 5, 2006, and was denied on May 27, 2008. A timely notice of appeal was filed on June 12, 2008, and the appeal was docketed in this Court on July 11, 2008. It was submitted for decision on the briefs.