Following a jury trial, Anthony Ellis was convicted of aggravated assault (OCGA § 16-5-21 (a) (2)), aggravated sodomy (OCGA § 16-6-2 (a) (2)), rape (OCGA § 16-6-1 (a) (1)), and false imprisonment (OCGA § 16-5-41 (a)). The trial court denied Ellis’s motion for new trial, as amended. Ellis now appeals, contending that (1) the evidence was insufficient to support his convictions; (2) the State failed to provide him with information pertaining to the victim’s criminal history or mental health status; (3) the trial court erred in admitting Ellis’s custodial statements; (4) the trial court erred in denying his motion for mistrial where certain portions of the jury charge were allegedly interrupted by courtroom distractions; (5) he was denied a fair trial because the courtroom deputy allegedly made inappropriate gestures and facial expressions in front of the jury; (6) the trial court erred in excluding witness testimony regarding the victim’s prior false allegations of sexual misconduct; (7) the trial court erred in failing to
“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State,
So viewed, the evidence shows that the victim was Ellis’s ex-girlfriend at the time of the relevant incident, April 17, 2008. On that day, the victim was returning to her mother’s home, where she resided at the time, when Ellis jumped into her vehicle with a crowbar-type weapon and grabbed the victim’s face. When the victim’s mother heard her screaming, she came out of the house and proceeded to engage in a “tug-of-war” with Ellis to get the victim out of the vehicle. The victim’s mother was ultimately successful, whereupon the victim and her mother ran into the house, and the victim went to call 911. Ellis followed them into the house, kicked the door in, and grabbed a knife from the kitchen. When Ellis raised the knife to the victim’s mother, the victim offered to leave with Ellis to prevent him from doing any harm to her mother. Ellis pushed the victim’s mother to the ground and left with the victim; the victim’s mother then called the police.
Ellis took the victim to his father’s house in Henry County. Ellis held the victim in a back bedroom and ordered the victim to take her clothes off. The victim complied because Ellis had a knife in his hand. Ellis initially attempted to have anal intercourse with the victim, but when that proved unsuccessful, Ellis had the victim turn onto her back and held a knife in his hand while he told her to open her legs. Ellis then had vaginal intercourse with the victim against her will. Ellis eventually withdrew his penis from the victim’s vagina in order to ejaculate into the victim’s mouth. Ellis told the victim to get up and put her clothes back on, and they went into the living room together, where he told the victim to spit out the semen in her mouth. The victim felt that she could not leave the house because Ellis had a knife and she was uncertain about his mental state.
Meanwhile, the police responded to the 911 call placed by the victim’s mother. The officers located Ellis and the victim at Ellis’s father’s house. When an investigator approached the house, Ellis cracked open the door and said he had a gun. Ellis engaged the responding officers in a stand-off that lasted for several hours.
1. Ellis contends that the evidence was insufficient to convict him beyond a reasonable doubt of aggravated assault, aggravated sodomy, rape, and false imprisonment. After viewing the evidence in the light most favorable to the prosecution, the relevant question on appeal is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
(a) Aggravated assault. The indictment alleges that Ellis committed aggravated assault by making an assault upon the victim with a knife, a deadly weapon, by holding the knife in a threatening manner toward the victim. Ellis claims that the evidence was insufficient to support his conviction on this count because there was no corroboration that Ellis used the knife in a threatening manner and because there was no evidence of a wound to the victim’s thighs. Ellis’s claims are without merit.
A person commits the offense of aggravated assault when he assaults
The victim testified that Ellis held a knife in his hand when he told her to take her clothes off, and when he told her to open her legs so that he could have vaginal intercourse with her against her will. This testimony alone was sufficient to support the conviction. See OCGA § 24-4-8. The fact that there was no evidence of a wound to the victim’s thighs does not change our conclusion. See Gilbert v. State,
Ellis also contends that venue was not proven on the aggravated assault charge because some of the evidence was from a different county. This argument is likewise without merit. “Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of
Finally, Ellis contends that the victim’s testimony should be discounted as incompetent because of the victim’s potential mental illness.
a mental disease does not necessarily render a witness incompetent to testify. ... If the allegedly incompetent person understands her obligation to tell the truth and is capable of giving material evidence upon the subject matter in question, she is competent to testify, and it is then up to the jury to determine the appropriate weight to give her testimony.
(Citations and punctuation omitted.) Dorsey v. State,
Therefore, the evidence was sufficient to support Ellis’s aggravated assault conviction.
(b) Aggravated sodomy. The indictment alleges that Ellis committed aggravated sodomy by unlawfully performing a sexual act involving his sexual organ and the victim’s mouth. Ellis contends that the evidence was insufficient to sustain his conviction on this count because there was “no evidence of physical trauma or sexual assault to that area.” We disagree.
Sodomy is any sexual act involving the sex organs of one person and the mouth or anus of another. See OCGA § 16-6-2 (a) (1). “A
(c) Rape. Ellis contends that the evidence was insufficient to support this charge, citing the absence of evidence corroborating the victim’s testimony that the sexual intercourse with Ellis was non-consensual. Ellis’s argument is unavailing.
To prove the offense of rape, the State must show that a defendant had “carnal knowledge of... a female forcibly and against her will.” OCGA § 16-6-1 (a) (1). Here, the victim testified that she kept her legs tightly closed to prevent Ellis from having sexual intercourse with her, and that she opened her legs only because Ellis had a knife in his hand. “[Ljack of resistance, induced by fear, is not legally cognizable consent but is force.” (Citation and punctuation omitted.) Littleton v. State,
(d) False imprisonment. Ellis argues that the evidence was insufficient to support his conviction on the false imprisonment charge because there was no independent corroboration showing that Ellis detained the victim against her will. Again, Ellis’s argument lacks merit.
In sum, there is no merit to Ellis’s insufficiency claims, and we affirm his convictions for aggravated assault, aggravated sodomy, rape, and false imprisonment.
2. Ellis contends that the State failed to provide him with information pertaining to the victim’s criminal history or mental health status, in violation of Brady v. Maryland,
To prevail on a Brady claim, a defendant must show that the State possessed evidence favorable to the defendant; defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.
(Citation omitted.) Blackshear v. State,
Here, pretermitting the issue of whether Ellis met his burden with respect to the other prongs, we find no reversible error because Ellis failed to satisfy the first prong. That is, there is no evidence that the State was in possession of any criminal history regarding the victim or any information concerning the victim’s mental health history. “Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense.” (Citations and punctuation omitted.) Ferguson v. State,
3. Ellis next argues that the trial court erred in allowing the admission of his custodial statements, because they were not made willingly, voluntarily, or with informed consent. Again, there is no merit to Ellis’s claim of error.
The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. 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-Denno hearing will be upheld on appeal.
(Citations and punctuation omitted.) Sosniak v. State,
The testimony at the Jackson-Denno hearing in this case showed the following. Ellis was interviewed on April 17, 2008, after he was in custody at the Henry County Police Department. Upon entering the interview room, Detective Reid with the Henry County Police Department introduced himself, removed Ellis’s handcuffs, and told Ellis why he wanted to speak with him. Detective Reid testified that Ellis was not free to leave at that time. In response to Detective Reid’s questions, Ellis indicated that he was not under the influence of drugs or alcohol, that he could read and write English, and that he had completed the twelfth grade. Thereafter, Detective Reid, reading from a standardized form, advised Ellis of his Miranda
The foregoing evidence authorized the conclusion that Ellis made a knowing, intelligent, and voluntary decision to speak with the detective and give his oral statements. Cf. Gilliam v. State,
4. Ellis contends that the trial court erred in denying his motion for mistrial on the grounds that certain portions of the trial court’s jury charge were interrupted by courtroom distractions.
“Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will
Here, Ellis complains that a probation officer walked into the courtroom during the reasonable doubt jury charge, and that a beeper sounded during the jury charge on the voluntariness of a defendant’s statements. Ellis contends that he was denied a fair trial as a result of these distractions. Ellis, however, has presented no evidence that the jury was in fact distracted or confused about the jury charges that were allegedly interrupted. Indeed, the trial court later indicated that it stopped reading the reasonable doubt jury charge when the probation officer walked into the courtroom. The trial court also noted that the beeper “was as far away as you can get from the jury in this room,” and that the trial court did in fact pause in reading the jury charge while the owner of the beeper removed himself from the courtroom (which is reflected in the record). Moreover, since a copy of the charge as a whole was available to the jury during deliberations, any juror who was in fact distracted during a particular charge would have had an opportunity to reread those charges. Finally, the record does not reflect, nor could the trial court recall, that the jury requested clarification on any of the charges. Based on the foregoing circumstances, we cannot say that the trial court abused its discretion in denying Ellis’s motion for mistrial.
5. Ellis contends that he was denied a fair trial because the courtroom deputy made alleged inappropriate gestures and facial expressions in front of the jury.
“When a trial court determines that a juror has received an improper communication it may, but is not required to, determine whether the communication had in fact prejudiced the juror before granting a mistrial.” (Citations omitted.) Reed v. State,
Ellis first raised this issue at his motion for new trial hearing. The only evidence he proffered in support of his claim was his own testimony and that of his mother that they had witnessed the deputy shaking his head while Ellis was testifying and that the jury could have seen him. However, as the trial court pointed out at the motion for new trial hearing, neither Ellis, his counsel, nor his mother ever notified the court, or otherwise objected to, any alleged inappro
6. Ellis argues that the trial court erred at the motion for new trial hearing insofar as it excluded witness testimony regarding the victim’s allegedly prior false accusations of sexual abuse of her daughter. We disagree.
Ellis contends that this testimony was relevant to the victim’s credibility and showed that the victim had a pattern of making false accusations of sexual misconduct.
Furthermore, to the extent this witness testimony was relevant to a claim of ineffective assistance of counsel, insofar as Ellis contends that he sought to show that counsel failed to call the witness at trial, any error in excluding the testimony at the motion for new trial hearing was harmless. Indeed, “[a] strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” (Citation omitted.) Coggins v. State,
7. Ellis contends that the trial court erred in failing to allow him the opportunity to present evidence in mitigation of his sentence.
“OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.” Scott v. State,
Given that a pre-sentence hearing was held, coupled with the fact that Ellis declined any opportunity to present his alleged witnesses in mitigation of punishment and then failed to raise any objection when the court imposed its sentence, we find no merit to his claim of error. See Evans v. State,
8. Finally, Ellis argues that the trial court erred by denying his motion for new trial based on his claims of ineffective assistance of counsel. We disagree.
To establish ineffective assistance of counsel under Strickland v. Washington,
Here, Ellis enumerates a lengthy list of errors allegedly committed by trial counsel. We address each in turn.
(a) Ellis claims that trial counsel was ineffective in failing to adequately investigate the victim’s criminal and mental health history. Ellis relies solely upon the victim’s testimony at the motion for new trial hearing — that she had a conviction for theft by shoplifting, and that she had been hospitalized at a mental institution after the incident with Ellis.
With respect to the victim’s criminal history, OCGA § 24-9-84.1 (a) pertinently provides that evidence of a witness’s prior conviction shall be admitted if (i) 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 outweighs its prejudicial effect; or (ii) the crime involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense. See OCGA § 24-9-84.1 (a) (1), (3). With respect to a conviction for theft by shoplifting, the punishment imposed depends upon certain factors set forth in the statute, including the dollar amount of the stolen property and whether the defendant had previous shoplifting convictions. See OCGA § 16-8-14 (b). Moreover, because
*363 theft is not a crime that necessarily involves dishonesty or making a false statement of the sort contemplated by this statutory subsection [,] ... the party seeking to use a misdemeanor theft conviction as impeachment evidence must show that the conviction involved fraud or deceit.
(b) Ellis next contends that trial counsel was ineffective in failing to produce an eyewitness, Ellis’s son, to a prior alleged aggravated assault incident between Ellis and the victim. Ellis relied upon the testimony of his son at the motion for new trial hearing — that he was present on the date when the victim instigated a fight with Ellis and threw a lamp at him. However, his son’s testimony would have been cumulative of testimony provided by Ellis at trial. And “[tjrial counsel’s failure to present cumulative evidence does not amount to ineffective assistance.” (Footnote omitted.) Lyons v. State,
(c) Ellis claims that trial counsel was ineffective in failing to object to the State’s similar transaction evidence, specifically Ellis’s prior conviction for simple battery. As stated in the trial court’s similar transaction instruction given to the jury, this evidence was admitted for the limited purpose of showing the nature of the relationship between Ellis and the victim. Ellis contends that because the conviction was a result of a nolo contendere plea, it should not have
(d) Ellis argues that trial counsel was ineffective in failing to request jury instructions on the lesser included offense of battery and any other lesser included offenses. At the motion for new trial hearing, trial counsel testified that based on the evidence and the fact that Ellis’s entire defense was based on the alleged consent of the victim, he did not believe there was a valid basis for requesting any lesser included offenses. Indeed, the failure to request a jury instruction on a lesser included offense cannot support a claim of ineffective assistance where, as here, the evidence does not reasonably raise the issue that Ellis may be guilty only of the lesser crimes. See Gross v. State,
(e) Finally, Ellis claims that trial counsel was ineffective in failing to use an expert witness regarding the issue of consensual intercourse. “The decision whether to call an expert witness is a matter of trial strategy within the broad range of professional conduct afforded trial attorneys.” (Citation omitted.) Davis v. State,
In conclusion, the trial court did not err in denying Ellis’s motion for new trial on the grounds of his ineffective assistance of counsel claims.
Judgment affirmed.
Notes
Assault is defined in OCGA § 16-5-20 (a) in pertinent part as when a person either “(1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”
Ellis similarly contends that the victim’s testimony was insufficient to sustain his convictions because his trial counsel failed to impeach the victim’s credibility with evidence of her prior conviction for theft by shoplifting. Ellis’s contention is without merit. As discussed in Division 8 (a) below, Ellis failed to show that this conviction would have been admissible for impeachment purposes at trial.
See generally Miranda v. Arizona,
Embedded as a footnote in the argument section of his brief, Ellis also contends that the trial court erred in denying Ellis’s motion for mistrial because lesser included offenses were not included in the jury charges. “But an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.” (Citation, punctuation and footnote omitted.) Tucker v. State,
Ellis again seeks to expand his enumerations of error to include a somewhat incoherent claim regarding the trial court’s finding as to the completeness of the trial transcript. As we noted previously, however, Ellis cannot expand his enumerations of error through argument in his brief. See Tucker, supra,
See Osborne v. State,
We decline, however, to address Ellis’s ineffectiveness claims that are not set forth in his enumerations of error - specifically, those regarding the videotape of the victim’s interview with the investigators, the number of law enforcement witnesses produced by the State, and the use of character witnesses during Ellis’s pre-sentence hearing. See Tucker, supra,
OCGA § 17-7-95 (c) provides in relevant part that “[e]xcept as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose).]”