Carter v. StateCarter v. State
- Reporters:
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- Before:
- Eldridge
This Fаyette County case arose as a part of a lengthy, ongoing dispute between appellant Anthony Carter and a neighbor, Lester Walden, which dispute was, apparently, referred to locally as the “Carter/Walden feud.” In this instance, a jury found appellant Carter guilty of misdemeanor criminal trespass for piling dirt against Walden’s fence, thereby causing damage to the fence and to Walden’s property. 1 In аddition to the above conviction, appellant, who represented himself at trial, ignored numerous warnings by the trial court and repeatedly cast aspersions upon Lester Walden during his cross-examination of Walden, thereby engendering another conviction for criminal contempt of court. Pro se, Carter appeals both convictions. We affirm both.
Case No. A98A0074: Criminal Trespass
1. Upon arrest and prior to the presentment of the accusation charging him with criminal trespass, appellant filed a pro se demand for speedy trial. He claims he was denied his speedy trial rights. We disagree. To the extent that appellant’s pro se contentions encompass such right pursuant to
2. Next appellant contends that this case should have been dismissed as res judicata because the same issues had allegedly been raised in a prior civil case filed in the
3. There was no error in the trial court’s refusal to allow the appellant, following the guilty verdict, to “poll” the jury by asking them: (1) if they had “made a decision [based] on the Carter — Walden fued [sic] going on in local papers for аbout 7 years”; and (2) if they “felt sorry for Lester Walden and did not go by evidence presented to them.” A defendant’s right to poll a jury following the verdict does not encompass questioning which attempts to impeach thе verdict. See, e.g.,
4. Next appellant contends that he was hampered in presenting his defense because he was intimidated by the trial court. We have reviewed the record in the instant case. The only factor that could possibly be considered “intimidating” was the trial court’s appropriate attempts to require appellant to comply with rules of evidence and procedure, which task appellant willingly undertook when he decided to represent himself. Further, if appellant was “intimidated” by the trial court, such was not apparent by his conduct during the presentation of his defense, and appellant has failed to show any harm resulting from his alleged “intimidation.” “Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal. [Cit.]” Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994).
5. The trial court did not err in denying appellant’s motion for dirеcted verdict. The state introduced numerous pictures taken by Walden which showed appellant using a tractor to push dirt and debris up against the combination of hog wire and chain link fence that separated their common boundary line. In addition, Lester Walden testified that he had his property surveyed three times, and that the fence was on his property; that appellant, without consent, continually piled dirt up tо and over the fence, which caused damage to the fence and the property on the other side; and that appellant’s acts were in retaliation for other benign acts committed by Walden.
Appellant, on the other hand, testified that the fence may have been on the property line originally, but rainwater had pushed the fence over onto his land; that since the fence was on his land, he could rightfully push his own dirt up against his own fence if he chose to do so; and that Walden filed these charges in retaliation for other benign acts committed by appellant.
“ Tt is the province of the jury, and theirs alone, whеn considering conflicting evidence and statements of defendant ], to decide what evidence to believe or disbelieve.’ [Cit.]” Crews v. State, 133 Ga. App. 764, 765 (213 SE2d 34) (1975). Further, “the intent with which an act is done is peculiarly a question of fact for determination by the jury.” Brown v. State, 174 Ga. App. 913 (331 SE2d 891) (1985). There was no error.
6. Appellant next contends that the deputy who investigated Walden’s complaint and the magistrate who issued the arrest warrant “were bias [sic] and lied in Court,” because both allegedly testified that Waldеn’s allegations against appellant were investigated
before
appellant’s arrest. Appellant contends that “Court Records show incident was investigated 30 days after arrest. Court records were falsified by adding a date to original Sept. Stamp.” It appears to this Court that the date on which Walden’s allegations were “investigated” does not impact on the validity of the investigation. Nor does it impact on the jury’s credibility determination regarding the “swearing contest” of conflicting testimony presented by appellant and Walden as to the essential elements of the crime for which appellant
7. Contrary to appellant’s claim of error, the failure to establish the
exact
value of the damage done to Walden’s property and the trial court’s failure to order restitution were not cаuse for a new trial. The evidence established the essential elements of the offense.
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8. Appellant claims as error the trial court’s failure to charge the jury that the exact amount of damage must be determined. As appellant failed to reserve objections to the jury charge, we will not consider this contention. Sims v. State, 266 Ga. 417, 418 (467 SE2d 574) (1996).
9. Appellant asserts that the trial court erred in refusing to grant a change of venue. Apрellant failed to raise this issue at trial. (Further, appellant, again, offers no argument in support of a change of venue, cites no relevant authority in support thereof, and asserts only bare contеntions.) “Failure to object in the trial court leaves nothing for this court to review on appeal. [Cits.]” (Punctuation omitted.) James v. Tyler, 215 Ga. App. 479, 480 (451 SE2d 506) (1994). Therefore, appellant failed to preserve this issue for consideration by this Court.
10. Aрpellant was sentenced to twelve months, six months to serve and six months probated, with a $1,000 fine. Such sentence was within the statutory limits provided for misdemeanor punishment,
11. Appellant correctly claims that there is a fundamental right to a free transcript on appeal — for an
indigent
defendant.
Stalling v. State,
231 Ga. 37 (200 SE2d 121) (1973);
Hall v. State,
162 Ga. App. 713 (293 SE2d 862) (1982). Appellant has not claimed that he is indigent, and the evidence shows that appellant is not indigent. Thus, contrary to his contentions, appellant is not entitled to a free transcript. Further, appellant was tried on February 25, 1997; he was sentenced on February 28, 1997; his motion for new trial was denied on March 28, 1997; a notice of appeal was filed on March 31, 1997; and a transcript of the proceedings was filed on May 14, 1997. There was no error pursuant to
12. A February 25, 1997 prosecution for a сrime that was alleged to occur seventeen months before, on August 9,1995, is not barred by the two-year (twenty-four months) statute of limitation for the prosecution of misdemeanor cases.
Case No. A98A0073: Criminal Contempt
Appellant’s sole cоntention with regard to his conviction for criminal contempt of court is that he was not in contempt.
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Appellant claims that his conduct was not “intentional, wilful, or done to degrade”; appellant urges that hе engaged in unseemly conduct because “I needed a recess to get my thoughts straight. I could not understand instructions from the court.” We find such contentions to be incredible. A review of the transcript shows that the trial court did everything in its power, short of contempt, to compel the appellant to behave. The characterization “soul of patience” comes to mind. Direct requests by the trial court, which were comprised of nothing more complicated than “don’t say that again,” were ignored by appellant; the trial court warned the appellant that he was in danger of being held in contempt. Appellant’s actions in court appeared retaliatory toward Walden
Judgment affirmed.
McMurray, P. J., and Blackburn, J, concur.
Notes
Appellant Carter had previously filed a civil suit against Walden for doing the sаme thing to appellant’s property.
Moreover, the civil doctrines of “res judicata” and “collateral estoppel” have no real application to a criminal case. The prоper, analogous bar in a criminal prosecution is under the principle of “double jeopardy,” which is clearly not applicable under the facts of this case.
Testimony and photographic еvidence placed the cost of the damage to Walden’s property between $280 and $500.
As a note of interest, the trial court was forced to hold victim Lester Walden in criminal contempt, as well, for Wаlden’s continuous derogatory comments directed toward appellant during the length of the trial.
Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. It involves action by the court to compel respect thereto, to vindicate its authority, and to enforce the lawful processes and actions of the court. Farmer v. Holton, 146 Ga. App. 102 (245 SE2d 457) (1978), overruled on other grounds, In re Crane, 253 Ga. 667 (324 SE2d 443) (1985).