Following a jury trial, William Kenny Chapman II appeals from his conviction of attempted burglary
Construed in favor of the verdict,
As the stranger fled, the mother described his appearance to the police, who responded to the scene and discovered Chapman, who matched the description given by the mother. Chapman was arrested, and, police discovered an alcoholic drink, a pornographic magazine, and a pair of women’s underwear in his truck.
Based on these events, Chapman was indicted with attempted burglary and attempted rape.
1. Chapman argues that the trial court convicted him under a defective indictment as to each count. Because he did not file a timely demurrer to the indictment or a motion in arrest of the judgment, such an argument would normally be waived.
Amotion in arrest of judgment or habeas corpus are the only remedies available when no demurrer to the indictment is interposed before judgment is entered on the verdict. Therefore, a motion for new trial is ordinarily not the proper method to attack the sufficiency of the indictment. But, this Court has made an exception [in cases such as this one] when the motion for new trial raises the ground of ineffective assistance of counsel.6
Under Strickland u. Washington,
(a) Attempted burglary. Chapman contends that his trial counsel performed deficiently by failing to file a demurrer to the indictment because the indictment failed to adequately allege the crime of attempted burglary. We disagree.
Chapman’s indictment charged as follows:
[The grand jurors] do hereby charge and accuse: WILLIAM KENNY CHAPMAN II with the offense of: CRIMINAL ATTEMPT TO COMMIT BURGLARY for that the said accused . . . did then and there, unlawfully: with intent to commit a specific crime, to wit: burglary, perform an act which constitutes a substantial step toward the commission of that crime, to wit: said accused attempted to remove an air conditioning window unit from the window of a residence occupied by to [sic] [K. S.], in violation of OCGA § 16-4-1 and OCGA § 16-7-1, contrary to the laws of this State, the good order, peace, dignity thereof.
“A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime [prior to judgment]; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.”
whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Thus, if the accused can admit all the indictment... charges and still be innocent of having committed any offense, the indictment... is defective.12
The crime charged in this case was criminal attempt to commit a burglary. Under OCGA § 16-4-1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” The indictment alleged that Chapman had the intent to commit the specific crime of burglary and that he intentionally tried to remove an air conditioning window unit, which act constituted a substantial step toward commission of the burglary. Therefore, the indictment was not subject to a general demurrer because Chapman could not admit these acts and still be innocent of the crime alleged.
To the extent that Chapman’s trial counsel should have sought greater specificity in the indictment, such an argument would be made in a special demurrer.
the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Chapman’s] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [Chapman]. And [Chapman] does not argue that the imperfect indictment prejudiced his defense in any way[, instead, he argues that the count was void]. Under these circumstances, [Chapman] has failed to show that he was prejudicedbyhis attorney’s failure to file [aspecial] demurrer.15
(b) Attempted rape. In the same context, Chapman contends that his trial counsel was ineffective for failing to demur to the attempted rape count. Chapman argues that the count was deficient because it (i) contained an incorrect Code section, (ii) failed to allege each essential element of rape, and (iii) failed to specify the way in which the rape would be committed. We find no reversible error.
The attempted rape count reads as follows, in relevant part:
for that the said accused on February 18, 2007 . .. did then and there, unlawfully: with intent to commit a specific crime, to wit: Rape, perform an act which constitutes a substantial step toward the commission of that crime, to wit: said accused attempted to enter the bedroom window of a home occupied by [A. R.] and [K. S.], in violation of OCGA Sec. 16-4-1 [criminal attempt] and OCGA 16-6-4 [child molestation], contrary to the laws of this State, the good order, peace, and dignity thereof.
(i) Chapman is correct that the indictment cites OCGA § 16-6-4, which is the Code section for child molestation instead of rape.
It is not the name, but the description of the crime, which characterizes the offense charged. An indictment in which the allegations track the language of the applicable Code section is good as against a general demurrer. An alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment.16
The form of the indictment may be challenged by a special demurrer, but even if the trial court grants a special demurrer and quashes the indictment, it does not bar the State from re-indicting the defendant.
(ii) Chapman’s argument that the indictment should have included each element of the rape charge also fails for the reasons explained in Division 1 (a). “Because [Chapman] was charged with criminal attempt, the [S]tate was required to allege that, with an intent to commit the underlying crime, he performed some overt act toward its commission.”
(c) Chapman also based his claim of ineffective assistance of counsel on his trial counsel’s failure to move for a directed verdict. Nevertheless, “even absent a motion for a directed verdict, a criminal defendant may challenge the sufficiency of the evidence” on appeal, as Chapman does in this appeal.
(d) Chapman also argues that his trial counsel performed deficiently by failing to request jury instructions on lesser included offenses. But as explained by his trial counsel at the hearing on his motion for new trial, this decision was a matter of trial strategy. Chapman’s strategy was to deny all wrongdoing, and trial counsel wanted to avoid the appearance of admitting to any lesser crimes. Informed strategic decisions “provide no grounds for reversal unless such [strategic] decisions are so patently unreasonable that no competent attorney would have chosen them.”
(e) Finally, Chapman claims his trial counsel was deficient by calling a character witness who opened the door to the State’s introduction of evidence of his bad character. But again, as explained by trial counsel, the decision to call the witness was made with the knowledge that a similar rape conviction would be admitted regardless and other less serious convictions potentially would be admissible because Chapman insisted that he wished to testify on his own behalf.
2. Chapman next challenges the sufficiency of the evidence. When reviewing the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to drawreasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. 29
As explained in Division 1 (a) and (b), Chapman was accused of attempted rape and attempted burglary. He argues that the evidence was circumstantial and did not exclude every reasonable hypothesis of his innocence.
[T]he question of intent to commit burglary is for the determination of the jury under the facts and circumstances proved, and it is axiomatic that the credibility of the witnesses is solely a jury question. Questions of reasonableness are likewise issues for jury determination. The evidence was sufficient to authorize the jury to conclude that [Chapman] took a substantial step toward entering [the] home to commit a [burglary and a rape].
In light of the record before us, we discern no legal error requiring a reversal.
3. Chapman also claims that the trial court committed clear error by admitting similar transaction evidence. We disagree.
For evidence of a similar transaction to be admissible, the [S]tate must demonstrate the following: (1) the evidence is admitted for a proper purpose; (2) sufficient evidence exists to establish the accused committed the independent act; and (3) a sufficient connection or similarity exists between the independent offense and the crime charged so that proof of the former tends to prove the latter.... We will uphold a trial court’s decision to admit evidence of a similar transaction unless it was clearly erroneous.31
Here, prior to trial the State gave notice of its intent to introduce a prior rape conviction as a similar transaction. In the prior case, Chapman had admitted to cutting a screen on a window, entering a house through the window, and raping the adult female occupant. Also, there was a pair of women’s underwear found at the scene that did not belong to the victim. In the present case, Chapman was accused of attempting to enter a residence through a window to rape an occupant of the residence, and a pair of women’s underwear not belonging to the victim was found in Chapman’s truck. The trial court admitted the evidence for the purpose of showing intent, lustful disposition, and bent of mind.
It is well settled, particularly in cases involving sexual offenses, that similar transactions may be admitted for the purpose of establishing bent of mind. Evidence of an earlier assault on a woman is material to the issue of consent or lack thereof and has a direct bearing on a defendant’s bent of mind. Such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.32
4. Chapman finally enumerates as error that the trial court commented on the evidence in violation of OCGA § 17-8-57, which provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” During Chapman’s defense, he called a witness with expertise in air conditioning installation to testify that a window air conditioning unit cannot be removed from the outside. The following colloquy ensued:
Q: . . . [C]an you describe . . . how exactly a window unit is installed?
A: They’re put in from the inside and they’re usually screwed into the window, sealed into the window itself.
Q: Screwed into the window —
Court: Ms. Brown, has he examined this air conditioner in this case?
Counsel: No, sir.
Court: The make and model, has he been given that?
Counsel: No, sir.
Court: Doesn’t he kind of need to know that information if he’s going to start testifying about what it takes to put in this air conditioner unit instead of perhaps a big commercial unit somewhere or •—
Counsel: I was not going to ask him to testify about how this particular unit would have been put in.
Court: Huh?
Counsel: I am not going to ask him to testify about how that particular AC unit was put in.
Court: Then he’s not going to testify. We’re only concerned about the unit that was in this trailer.
Counsel: Yes, sir. I was simply trying to establish a basis for my further questioning.
Court: Either you’re not understanding me or I’m not understanding you. You’re asking in general about an air conditioning unit as if in all the world there was one unit and you have to put that one unit in a certain way. I don’t believe from my own personal experience that is not true. There’s a gamut and a range of units from the smallest that a woman can pick up in one hand all the way to heavy industrial units.
I’m just simply asking you isn’t it kind of — don’t you even know that before you start asking? I’m really going back to your opening statement and what you considered. It has to be relevant testimony to the issues in the case.
Counsel: Yes, sir.
Court: How would he know what it would take to put in this unit?
Counsel: I wasn’t going to ask him what it would take to put in this unit, Your Honor.
Court: That’s the only relevance to this jury.
Counsel: Your Honor, the relevance is how the — how a unit could be removed; not how it would be installed.
Court: And without knowing the unit, you contend that he could tell how any unit could be removed. The smallest unit in a flimsy trailer.
Counsel: Your honor ... if I’d be allowed to ask him the question, he would be able to testify that no AC unit can be removed from outside the window.
State: Objection.
Court: I’m going to ask you jurors to utilize your common sense. An expert witness in order to be an expert has to testify about something that is outside of your knowledge. Is everybody clear on that? Okay. You may proceed.
Q: Now ... if an AC unit that’s installed in a window — if— regardless of what kind of unit it is, could it be removed from the inside? I’m sorry. From the outside of the unit?
A: No, ma’am. They’re all installed from the inside so it could not be removed from the outside.
State: Judge, you’re still getting back to that he doesn’t know this particular unit. He doesn’t—he hasn’t been tendered as an expert. He hasn’t — he’s just up there sayingthat — there’s been no foundation laid for this opinion.
Court: You have to lay a foundation first before he ever gets to testify about anything about his opinion— Let me excuse the jury for just a second.34
Chapman contends that the trial court’s statements, including those about his personal experience, indicated his opinion about the credibility of the witness. The transcript reveals, however, that the trial court’s focus was the relevance of the witness’s testimony and his qualification as an expert.
Atrial judge may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides.35
Under the facts before us, we do not conclude that the trial court expressed its opinion as to what had been proven.
Judgment affirmed.
Notes
OCGA §§ 16-4-1; 16-7-1 (b).
OCGA §§ 16-4-1; 16-6-1 (a) (1).
See Short v. State,
Chapman was initially indicted with attempted child molestation, but he was re-indicted with a substituted charge of attempted rape.
See Kirt v. State,
(Citations omitted.) Harris v. State,
See id. at 687-688, 694 (III) (A), (B).
See id. at 697 (IV); Fuller v. State,
(Punctuation omitted.) Robinson v. State,
State v. Eubanks,
(Citation and. punctuation omitted; emphasis in original.) Spence v. State,
See Livery v. State,
See, e.g., Stinson v. State,
(Citation and punctuation omitted). Cuzzort v. State,
(Citation omitted.)
Cuzzort v. State,
See, e.g., Clarke v. State,
(Punctuation omitted.) Id.
State v. Marshall,
OCGA § 16-6-1 (a) (1), (2).
See Driggers v. State,
Griffith v. State,
(Punctuation omitted.) Ellis v. State,
(Punctuation omitted.) Gonzales v. State,
See generally OCGA § 24-9-84.1 (a) (2) (“Evidence that the [testifying] defendant has been convicted of a crime shall be admitted [for purposes of impeachment] if the crime was punishable by death or imprisonment of one year or more ... if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant”).
See Fuller v. State,
See Johnson v. State,
(Citation omitted; emphasis in original.) Jackson v. Virginia,
See OCGA § 24-4-6 (“To warrant a conviction on [entirely] circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”).
(Punctuation and footnote omitted.) Pendley v. State,
(Footnotes omitted.) Thompson v. State,
See Wright v. State,
When the jury was brought hack, counsel moved on to a different line of questioning.
Dickens v. State,