After a jury trial, Keith Allen Mitchell was convicted of making harassing phone calls,
“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.”
So viewed, the record shows that Mitchell and A. D. dated for approximately two months following a few months of phone and electronic communication, but A. D. eventually ended the relationship in March 2012. During April 2012, Mitchell repeatedly called A. D. attempting to reunite with her, threatening suicide or becoming irate, and on one such call he stated that A. D.’s father could stay with her as much as her father wanted, but at some point he would have to go home and then A. D. would be sorry.
Thereafter, on April 29, 2012, around 5:00 p.m., A. D. returned home with her 12-year-old son, S. D., and went upstairs to her bedroom, where Mitchell accosted her, wielding a knife he had taken from her kitchen. A. D. was terrified and screamed, and Mitchell told her to be quiet, coming toward her with the knife in his hand and trying to put his other hand over her mouth to silence her. S. D. came to the bedroom after hearing his mother’s screams, and A. D. put herself between Mitchell (who put the knife out of sight when S. D. entered the room) and S. D. Mitchell stated that he needed to talk to A. D., but she had been refusing to do so.
S. D. stated he needed to use the restroom, and Mitchell took him into the attached bathroom and closed him into the separate toilet area, making sure that S. D. did not have his cell phone. Mitchell told S. D. to stay in the bathroom because he needed to talk to A. D.
At this point, Mitchell returned to the bedroom, took a pair of pantyhose from a drawer where A. D. had not put them, and cut a hole in the pantyhose crotch, telling A. D. to put them on and that he came for sex. A. D. removed her pants and put on the pantyhose, and Mitchell then demanded that she “suck [his] dick” and “whine.” The knife was on the bed while A. D. performed this act, and Mitchell told A. D. that as long as she complied with him, he would not hurt her. Mitchell then had forcible vaginal intercourse with A. D. A. D. testified that neither sex act was consensual, and she believed that Mitchell would kill her and S. D.
S. D. then knocked on the bathroom door from inside, asking if he could come out, and Mitchell finally allowed S. D. out of the bathroom upon A. D.’s suggestion that he might be hungry; Mitchell escorted them downstairs, still holding the knife, and A. D. prepared food that S. D. and Mitchell ate. S. D. asked if he could play a video game, and Mitchell said he could, but A. D. told S. D. to turn off a communication feature because she was afraid of what Mitchell might do if S. D. tried to call for help.
While S. D. was playing the game, Mitchell talked to A. D., accusing her of turning their friends against him, and she attempted to convince him otherwise; A. D. asked what Mitchell would do if someone was doing these acts to his niece. At that point, Mitchell became agitated again and told A. D. that he would “tell them they needed to do whatever they needed to do to stay alive and that’s what [she] need[ed] to do.” Mitchell directed A. D. with the knife to return to her bedroom, and she asked him what was going to happen to her. Mitchell explained that he was going to stay, they would have sex all night, and then he would leave.
Mitchell then made A. D. put on pantyhose and a nightie before making her perform intercourse. Mitchell then discovered a butcher knife from on top of A. D.’s bedside table, which she had started keeping there when Mitchell began making harassing calls to her. Mitchell confessed that he had slept in her back yard Thursday night, and came into her house on Friday and stayed in her attic and garage the Friday and Friday night before the Saturday in question.
A. D. attempted to talk to Mitchell to calm him down and suggested taking S. D. out to eat, so Mitchell allowed her to take them to a
S. D. attempted to stay in the vehicle when they arrived back home, but A. D. told him he needed to go back inside. Mitchell told A. D. the two of them needed to go back upstairs. Mitchell told her to “suck [his] dick,” and then he asked if he could perform oral sex on her. A. D. testified that she “did not feel like [she] was in a position that it was safe for [her] to say no.” Mitchell then performed vaginal intercourse on A. D. again.
At this point, around 11:00 p.m., A. D. attempted to get Mitchell to leave, telling him he was not raping her and that she would not contact police. Mitchell retrieved his shoes from A. D.’s attic, and she told him she would give him money and drive him to a bus station. Mitchell made her leave her cell phone at home, and she withdrew $200 from her bank for him on the way to the bus station; A. D. left Mitchell at the station, and then drove to a gas station where she called her father and told him about the events so he would meet her at her house. A. D. went home, where S. D. was sleeping, and she called police, who took her for a forensic evaluation at a local hospital.
After the evidence was presented to the jury, they found Mitchell guilty of all charges except theft by taking the knife from A. D.’s kitchen. Mitchell’s motion for new trial was denied, and this appeal followed.
1. Mitchell argues that the evidence was insufficient to support his conviction as to the two counts of false imprisonment because there was no evidence that Mitchell confined or detained the victims against their will.
OCGA § 16-5-41 (a) states that “[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” While Mitchell contends that there is insufficient evidence to support his conviction on the two counts of false imprisonment, Mitchell actually attacks the credibility of A. D.’s testimony that the confinement was against her will because she cooked a meal for S. D. and took him and Mitchell to a local fast food restaurant. The record, however, established that Mitchell possessed a knife and threatened S. D. throughout the day-long encounter, including during the excursion from the house to the fast food restaurant. Moreover, evidence supported the jury’s conviction of Mitchell for the false imprisonment of S. D. despite Mitchell’s contention that S. D. (who was 12 at the time of trial) could not remember who made him stay in the home’s bathroom while Mitchell raped and sodomized A. D. at knife-point in the adjoining bedroom.
This court does not weigh the evidence or determine witness credibility; rather, we determine only whether the evidence was sufficient to enable a rational trier of fact to convict the defendant under the standard set forth in Jackson v. Virginia.[9 ] As long as there is some competent evidence to support each fact necessary to make out the [S] tate’s case, we will uphold the jury’s verdict.10
In this case, the jury’s verdict was supported by A. D.’s testimony that the two victims were held by Mitchell in the home for approximately six hours, and she did not attempt to escape because she was afraid that Mitchell would harm her or S. D.,
The law provides that criminal actions shall be tried in the County in which the crime was committed. Venue, that is, the crime was committed in Cherokee County, is a jurisdictional fact that must be proved by the State beyond a reasonable doubt as to each crime charged in the accusation just as any element of the offenses. Venue must be proved by direct or circumstantial evidence, or both.13
Mitchell argues that the language italicized above was an impermissible comment that venue had been proven. At the time of Mitchell’s trial, OCGA § 17-8-57 provided 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.” Nevertheless, a trial court’s jury charge violates the statute “only when [its] instruction, considered as a whole, assumes certain things as facts and intimates to the jury what the [court] believes the evidence to be.”
In this case, the trial court’s challenged statement did not reflect an opinion as to what had been proved; rather, it was an instruction of the specific fact that the State was required to prove venue beyond a reasonable doubt. The trial court’s charge, as a whole, was a correct statement of the law — in order for the jury to convict Mitchell of the charged crimes, the jury was required first to determine that the State properly tried him in the county in which the alleged crimes had to have occurred.
3. Next, Mitchell contends that the trial court erred by denying his motion for mistrial following an officer’s testimony regarding Mitchell’s pre-trial detention.
At trial, an officer testified as follows regarding the collection of saliva from Mitchell: “It was on May 8,2012, we met with Mr. Mitchell at the Cherokee County Jail[,] and I obtained a — four swabs of his — excuse me — four swabs of his saliva.” At this point, Mitchell objected, contending that the State had introduced bad character evidence and requesting a mistrial. The trial court denied the motion.
Pretermitting whether the jury would have understood this comment to mean that Mitchell was housed in the jail at that time rather than understanding that Mitchell met with the officer at the jail, this was a passing reference to Mitchell’s pre-trial incarceration for the charged offenses, and thus, there was no error in the trial court’s denial of the motion for mistrial.
4. Finally, Mitchell argues that his sentence is void because the trial court failed to merge various counts for sentencing purposes.
(a) Mitchell contends that Count 3, alleging aggravated assault with a deadly weapon, should have merged with Count 8, alleging rape, because both counts gave rise to the same conduct occurring on the same day.
When a defendant is convicted of multiple crimes based upon the same act, the principle of factual merger operates to avoid the injustice [of multiple sentences for the same offense]. In Drinkard v. [Walker],[ 18 ] [the] Supreme Court of Georgia adopted the “required evidence” test set forth by the Supreme Court of the United States to resolve these situations. Thus, to determine whether convictions for multiple crimes merge for purposes of sentencing, the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact which the other does not. The test focuses on the evidence required to establish the statutory elements of each criminal offense, not the actual evidence presented at trial.19
Mitchell points to the trial court’s merger of Count 4, alleging aggravated assault with intent to rape, with Count 8, alleging rape, in support of his contention that Count 3 should also have merged with Count 8. We agree with the trial court, however, that the indictment did not allege in Count 3 that the assault with a deadly weapon occurred at the time of the rape, and the facts presented at trial show that Mitchell initially assaulted A. D. with the knife prior to falsely imprisoning A. D. and S. D. in A. D.’s bedroom, demanding to “talk” with her. Accordingly, the trial court did not err by separately sentencing Mitchell on Count 3.
(b) Mitchell also contends that the trial court erred by failing to merge two aggravated sodomy counts (7 and 12) and the two counts alleging rape (8 and 13) because the averments in the two counts in each group are indistinguishable from each other.
The evidence adduced at trial established at least two separate incidents of rape and two separate incidents of aggravated sodomy as alleged in Counts 7 and 12. Nevertheless, if “two charges are indistinguishable because all of the averments, including... victim[ ] and description of defendant’s conduct constituting the offense were identical, only one sentence may be imposed.”
(c) Mitchell also contends that two counts of aggravated sodomy-should have merged into the third count. Count 11 charged Mitchell with forcibly placing his mouth on the sex organ of A. D., and therefore, it charged different conduct than Counts 7 and 12, which charged Mitchell with forcing his sex organ into A. D.’s mouth. Accordingly, it was not erroneous for the trial court to sentence Mitchell separately on Count ll.
Judgment affirmed, sentence vacated and case remanded for resentencing.
Notes
OCGA §16-11-39.1 (a)(1).
OCGA § 16-7-1 (b).
OCGA §§ 16-5-21 (b) (1) (“Count 4”), (b) (2) (“Count 3”).
OCGA § 16-5-41 (a).
OCGA § 16-6-2 (a) (2).
OCGA § 16-6-1 (a) (1).
OCGA § 16-11-106 (b) (1).
(Citation and punctuation omitted.) Ellis v. State,
(Footnotes omitted.) Hammonds v. State,
See Ellis,
See Rehberger v. State,
(Emphasis supplied.)
(Citations and punctuation omitted.) Simmons v. State,
See State v. Dixon,
See Hargett v. State,
See, e.g., Johnson v. State,
(Punctuation and footnotes omitted.) Gordon v. State,
See Bolden v. State,
(Punctuation omitted.) Hunt v. State,
See Hunt,
Id. at 657 (1).
Id.
See Copeland,