John Gilbert, Jr., appeals after a jury convicted him of burglary, assault with intent to rape, aggravated assault, kidnapping with bodily injury and obstruction. We affirm.
On appeal, this Court neither weighs the evidence nor decides the witnesses’ credibility, but only determines whether the record contains any evidence to sustain the conviction. In so doing, we construe the evidence and all reasonable inferеnces from it most strongly in favor of the jury’s verdict.
Campbell v. State,
The victim began to close the door, but Gilbert forced it oрen, entered the apartment and began choking her. The victim struggled with Gilbert as he punched and choked her in the apartment’s living room. She tried to scream, but could not because Gilbert kept а hand around her throat. At some point, Gilbert picked the victim up and dragged her into the kitchen, while continuing to punch her. In the kitchen, he opened drawers as if searching for something.
Gilbert next draggеd the victim into the bedroom and threw her onto the bed. There, Gilbert continued to punch the victim, and she began looking for a Boy Scout knife she kept nearby. As the two struggled, Gilbert threw the victim off the bed and back onto it. When Gilbert began to remove his pants, the victim found the knife and attempted to stab him, but she lost the knife during the ensuing struggle. Gilbert then removed the victim’s pants and attempted sexual intercourse with her. When, at some point, Gilbert removed his hand from the victim’s throat, she screamed as loud as she could. Gilbert stumbled and began pulling up his pants, as the victim ran out of the apartment and went for help. Police later apprehended Gilbert as he ran from the apartment complex.
1. Gilbert first asserts that the evidence was insufficient to support the asportation element required to convict him of kidnapping. OCGA § 16-5-40 (a) provides that “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person аgainst his will.” Thus, a kidnapping conviction requires evidence of some movement of the victim, but proof of even slight movement will satisfy this requirement.
Harrell v. State,
2. Gilbert next argues that he received ineffective legal assistance because his trial counsel failed to object to an improper Allen 1 charge.
After deliberating apprоximately ten hours, the jury in this case sent a note to the trial judge indicating that they had reached a verdict on five of the eight charges against Gilbert, but would be unlikely to reach a unanimous decision оn the remaining three. The trial judge asked counsel if they wished to accept the verdict and declare a mistrial on three counts or if they would prefer that he give an Allen charge. After discussing the mаtter with Gilbert, Gilbert’s trial attorney requested that they give the jury another hour and agreed with the trial court’s suggestion that he give an Allen charge. The trial court’s instruction tracked the language of the State’s pattern Allen charge, 2 with some minor variations. Included in this charge was language that “[t]his case must be decided by some jury selected in the same manner this jury was selected and there is no reason to think a jury better qualified than you would ever be chosen.”
Several weeks earlier, however, the Supreme Court of Georgia had issued an opinion holding that this language was inaccurate and should no longer bе included in
Allen
charges in this State.
Burchette v. State,
Gilbert asserts that his trial counsel was ineffective in failing to be aware of the Burchette decision and in failing to object to inclusion of this language in the Allen charge in this case. To estаblish his claim of ineffective assistance of counsel, Gilbert must establish
both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the outcome of the trial would have been different but for counsel’s errors. Failure to satisfy either prong of this two-part test is fatal to an ineffectivenеss claim.
(Citation, punctuation and footnote omitted.)
Mitchell v. State,
287
Ga. App. 517, 518 (1) (
As the Supreme Court held, however, the language at issue was but one small part of an otherwise fair and balanced charge, and the charge as a whole cannot be deemеd unduly coercive. The jury in this case was polled, and each juror affirmed the verdict as the one he or she had reached and agreed upon. Although the jury deliberated for a shorter period, less than two hours, after the
Allen
charge than before the charge, “the length of jury deliberations before and after the
Allen
charge . . . do[es] not render a non-coercive charge cоercive.”
Lowery v. State,
Accordingly, we hold that Gilbert cannot demonstrate a reasonable probability that the outcome of the trial would have been different but for his counsel’s failure to object to this language, and his claim of ineffective assistance of counsel is without merit. See
Hampton v. State,
3. Gilbert also сontends that the trial court erred in failing to stop or instruct the jury regarding outbursts by the victim’s family. After the State began introducing evidence of the victim’s injuries, Gilbert’s trial counsel moved for a mistrial. He stated that as the pictures were being introduced, members of the victim’s family were audibly sobbing and that the bailiff gave one of the family members a tissue. When one of the family left the courtroom, he said the bailiff went оut “to console.” Both the prosecution and the judge noted, however, that the trial was being held in a very small courtroom and neither of them had heard any sobbing or other disturbance. The trial cоurt then denied Gilbert’s motion for mistrial. No curative instructions were requested or given at this time. At the end of trial, however, just prior to the jury’s verdict, the trial court admonished the spectators in the courtrоom, outside the presence of the jury, not to display emotions when the verdict was read, noting that “[djuring the trial of this case, we’ve had some emotions shown.”
But “[m]any, if not most, trials by jury involve some degreе of emotion by at least one party or the other. It would be unreasonable to expect that all emotions be completely frozen during a trial by jury
when such effective bridle on emotions cannot be sustained elsewhere.” (Citations and punctuation omitted.)
Forney v. State, 255
Ga. 316, 318 (3) (
Here, even if the victim’s family reacted emotionally when the pictures of her injuries were shown, the only indication is that some family members were crying. “[S]uch emotions are reasonably expected” from a victim’s family members.
Dick v. State,
Judgment affirmed.