JOINER v. THE STATE.
A97A2486
Court of Appeals of Georgia
March 10, 1998
497 SE2d 642
SMITH, Judge.
Brenda Joiner was convicted following a bench trial in Troup County of DUI and driving with a suspended license. Joiner appeals, raising for the first time on appeal her sole contention that the State failed to prove venue beyond a reasonable doubt. We do not agree.
Criminal actions generally must be tried in the county where the crime occurred.
Here, the evidence presented showed that an on-duty officer of the Troup County Sheriff‘s Office responded to a call concerning a domestic dispute. When he reached the residence where the altercation had occurred, he spoke with Joiner and noticed that she appeared to be intoxicated. Joiner asked him “continuously . . . to take her to the store to purchase some type of alcoholic beverage.” The officer refused to comply with Joiner‘s request and told her not to drive. After investigating the altercation, the officer left the residence, drove to a service station, parked his car, and began to prepare his report concerning the incident. While writing the report, he saw Joiner, who waved and smiled at him, drive a vehicle into the same parking lot. Knowing that Joiner had appeared intoxicated and that he had told her not to drive, the officer stopped her, performed field sobriety tests, and arrested her. He also took her to the LaGrange Police Department and administered an Intoxilyzer test.
In this case, as in Hunter v. State, 191 Ga. App. 219, 220 (381 SE2d 525) (1989), “the State is at least entitled to an inference” that the officer acted within his territorial jurisdiction, Troup County. There is no contention that he acted outside that jurisdiction, and “[i]t is a well settled principle that public officials shall be presumed to have performed their duties unless clearly proven otherwise.” (Citations and punctuation omitted.) Id. This rule has been followed on numerous occasions. See Hamilton v. State, 228 Ga. App. 285 (491 SE2d 485) (1997); Sawyer v. State, 217 Ga. App. 406, 409 (2) (457 SE2d 685) (1995); In the Interest of T. S., 211 Ga. App. 46, 47 (2) (438 SE2d 159) (1993); Shannon v. State, 205 Ga. App. 831, 834 (6) (424 SE2d 51) (1992); Beard v. State, 193 Ga. App. 877 (1) (389 SE2d 384) (1989); Williams v. State, 193 Ga. App. 630, 632 (2) (388 SE2d 884) (1989). See also Minter, supra (evidence that Griffin police department investigated case satisfied slight evidence requirement).
We recognize a line of authority that seems to conflict with Hunter, supra. In Calloway v. State, 227 Ga. App. 775, 776 (2) (490 SE2d 521) (1997), we relied upon Mega v. State, 220 Ga. App. 481 (469 SE2d 771) (1996) and concluded that venue in a particular county was not sufficiently shown by the State, even though the investigating officer worked for that county‘s police department. Calloway, supra. In Mega, the investigating officer similarly testified that she was employed by her county police department, but we cited Perry v. State, 154 Ga. App. 559 (269 SE2d 63) (1980), concluding that the State failed to meet its burden concerning venue. In Perry, this Court found the State‘s evidence of venue in Sumter County insufficient despite evidence concerning the affiliation with the Sumter County Sheriff‘s Office of the investigating officers and the fact that the officers took defendant to the Sumter County Sheriff‘s Department. Id.
We believe the correct rule is that found in Hunter, supra, and its progeny. Perry was decided eight years before the Supreme Court issued Minter. And the Court in Minter did rely in part on the investigating officers’ affiliation with the Griffin Police Department in concluding that venue in Spalding County was shown by the State. In addition, this Court in opinions such as Perry, Mega, and Calloway required more than the “slight evidence” held sufficient in Minter.
More significantly, refusal to apply the rule found in Hunter — that law enforcement officers investigating a crime generally act with authority and therefore within their jurisdiction — could implicitly lead to an assumption that those officers do not so act. In other words, ignoring evidence that investigating or arresting officers acted within their capacities as agents of particular city or county law enforcement departments raises a logical presumption that those officers acted outside their jurisdiction. We do not believe this Court intended to question the actions of law enforcement officials in this
While we appreciate the dissent‘s concern that the decisions of this Court not further undermine the reasonable doubt standard in criminal prosecutions, a review of the history of the “slight evidence” rule in Georgia demonstrates that from as early as 1886, our courts have held that slight evidence is sufficient to prove venue when evidence is not in conflict on this issue. See Porter v. State, 76 Ga. 658, 660 (2) (1886). See also Baker v. State, 55 Ga. App. 159 (189 SE 364) (1937), citing Johnson v. State, 62 Ga. 300, 301 (1) (1879) as precedent for the “slight evidence” rule. In Dickerson v. State, 186 Ga. 557 (199 SE 142) (1938), the Supreme Court discussed at length the requirements for proving venue. While reiterating the reasonable doubt requirement, the Dickerson court concluded that the evidence regarding venue was sufficient. Because no evidence was presented indicating that the crime occurred in another county, the court concluded that “[a]ny such hypothesis [that the crime occurred in another county] would be mere conjecture, unsupported by evidence or any reasonable inference deducible therefrom.” Id. at 563. In light of the history of this debate, the dissent‘s concern with the perceived erosion of reasonable doubt in this context appears misplaced.
Judgment affirmed. Andrews, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Beasley, Johnson, Blackburn and Eldridge, JJ., concur. Ruffin, J., dissents.
RUFFIN, Judge, dissenting.
“Everything is simpler than we can think, and at the same time more complicated than we can comprehend . . . .”2
Because the “slight evidence” rule, as well as the “any evidence” standard, is improperly eroding the reasonable doubt standard concerning proof of venue, I respectfully dissent.
1. Under both the
In Georgia, it is well established that “venue is an essential element in proving guilt in a criminal case‘” and thus must be proven beyond a reasonable doubt.3 Thayer v. State, 189 Ga. App. 321, 322 (1) (376 SE2d 199) (1988), citing Bush v. Chappell, 225 Ga. 659, 660 (171 SE2d 128) (1969); Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988);
However, coexisting with this well-established principle is the theory that when venue is not contested, slight evidence may be sufficient to prove venue. Rowland, supra; Minter, supra. While the effect of this “slight evidence” rule has been to undermine the reasonable doubt standard, or push it aside, it does not appear that forging a new standard of proof was intended by the appellate courts. For example, in Womble v. State, 107 Ga. 666, 669 (3) (33 SE 630) (1899), the Supreme Court of Georgia, in deciding whether venue had been proven, stated that “all the evidence relating to the venue tends to show that the offense charged against the accused, if committed at all, was committed in the county of Upson. There was no evidence in the slightest degree tending to show that it was committed elsewhere. We therefore think the venue was sufficiently established. [Cits.]” (Emphasis supplied.) Essentially, the Court was stating that in this particular instance, where there was no evidence to show otherwise, venue was established by the evidence presented beyond a reasonable doubt. The problem with following the majority opinion, of course, is that the defendant does not have to put up any evidence, and the
Moreover, the Supreme Court of Georgia in Musselwhite v. State, 217 Ga. 755 (125 SE2d 46) (1962), employed the “slight evidence” rule as incorporated within the reasonable doubt standard. “‘It may be stated as a rule that the venue in criminal cases is a matter of jurisdictional fact, and like every other material allegation in the indictment must be proved beyond a reasonable doubt . . . .’ [Cits.] ‘Evidence as to venue, though slight, is sufficient where there is no conflicting evidence.’ [Cits.] ‘When all of the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that it was committed elsewhere, it will be held that the venue was sufficiently proved.’ [Cits.]” Id. at 757.
Accordingly, the “slight evidence” rule was not meant to abrogate the reasonable doubt standard, but to explain that in certain situations slight evidence of venue may be all that is necessary to prove venue beyond a reasonable doubt. However, I believe that the propounding of this “slight evidence” rule was unnecessary, and as I mentioned in my dissent in Brinkworth, diminishes the State‘s burden without reason. 222 Ga. App. at 291. The State is required to produce competent evidence of venue, and “[i]t is then for the factfinder to decide whether he or she is persuaded beyond a reasonable doubt that the State has proven venue. [Cit.] . . . Whether the factfinder is persuaded by only slight evidence or some greater amount of proof should not be a matter of rules. . . . The rule allowing venue to be proven by only slight evidence is at best superfluous, and only clouds the law concerning the State‘s burden of persuasion. . . .” Id. The slight evidence rule, I believe, improperly places a burden on a defendant to produce evidence as to an essential element of the crime; for otherwise, the State may meet its burden of proving venue with only slight evidence. See id.
2. In light of the above, I do not find it necessary to overrule Mega v. State, 220 Ga. App. 481 (469 SE2d 771) (1996); Calloway v. State, 227 Ga. App. 775, 776 (2) (490 SE2d 521) (1997), and Perry v. State, 154 Ga. App. 559 (1) (269 SE2d 63) (1980), as those cases properly relied on the reasonable doubt standard in concluding that venue had not been established. While I agree with the majority in the instant case that the State is at least entitled to an inference that the arresting officer acted with authority, which would be within the county where defendant was tried, I also believe that allowing the State to prove venue “by simply showing that the crime was investi-
The fact that Perry was decided several years before Minter is of no consequence. The requirement that venue be proven by the State beyond a reasonable doubt, as well as the theory that slight evidence may prove venue beyond a reasonable doubt when there is no conflicting evidence, pre-existed Perry as well as Minter. Minter did not establish a new rule of law.
Additionally, the majority appears to state that if we do not accept as slight evidence of venue the inference that an arresting officer was acting within the scope of his duties, we are concluding, or making an assumption, that the arresting officer did not so act. I disagree. The inference that an officer was performing properly his duties at the time of the arrest can be used in proving venue. However, it is not necessarily the only evidence that need be shown to establish even slight evidence of venue. And in many situations, such as in Perry, Mega, and Calloway, the arresting officer‘s employment status was insufficient to prove venue beyond a reasonable doubt.
Finally, I believe the instant case is more akin to Mega, Perry, and Calloway than to the cases cited by the majority to support its finding that venue was proven by slight evidence. Here, the only evidence of venue is that the offense occurred on Vernon Ferry Road and that the officer worked for the Troup County Sheriff‘s Office. The Court cannot logically infer or take judicial notice of the fact that Vernon Ferry Road was located wholly within Troup County or that the arrest occurred in that county.4 The sole fact that the arresting officer worked for Troup County, without more, does not provide even slight evidence supporting proof of venue beyond a reasonable doubt.
3. I also respectfully dissent because the majority, by utilizing the “slight evidence” rule, has in effect employed the “any evidence” standard of review as to the issue of venue, which I believe violates the United States Supreme Court‘s decision in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
The “any evidence” standard for reviewing venue determinations
In direct contrast to this “any evidence” standard is the holding in Jackson v. Virginia. The issue in Jackson v. Virginia was “not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of [fact] to find guilt beyond a reasonable doubt.” Id. at 312-313. Relying on its holding in In the Matter of Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368) (1970), the United States Supreme Court in Jackson v. Virginia noted that “the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ [Cit.]” (Emphasis supplied.) Id. at 315. Venue, as earlier established, is an essential element of a crime. Thayer, supra.
The Jackson v. Virginia court concluded that “[a]ny evidence that is relevant — that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence [cit.] — could be deemed a ‘mere modicum.‘” Id. at 320. While a “mere modicum” of evidence may satisfy a “no evidence” standard, as concluded in Thompson v. Louisville, 362 U. S. 199 (80 SC 624, 4 LE2d 654) (1960), it cannot “seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt. The Thompson doctrine simply fails to supply a workable or even a predictable standard for determining whether the due process command of Winship has been honored.” Id.
Accordingly, the use of the “any evidence” standard to determine the sufficiency of evidence concerning venue clearly violates Jackson v. Virginia, which requires that all essential elements of a crime be proven beyond a reasonable doubt. The existence of a “mere modicum” of evidence, such as an arresting officer‘s status, cannot seriously be considered as meeting the reasonable doubt standard as to the element of venue. With due respect to the Supreme Court of Georgia decisions that have utilized the “any evidence” standard in regard to venue, I believe that all such cases should be reconsidered inasmuch as they appear to violate Jackson v. Virginia. There is
In summary, to the extent the majority in the instant case relies on the “slight evidence” rule and the “any evidence” standard, and avoids determining whether venue was proven beyond a reasonable doubt, I dissent.
DECIDED MARCH 10, 1998.
Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.
Louis J. Kirby, Solicitor, for appellee.