After a jury trial, Carlos Alan Stockard was convicted of making a false statement (OCGA § 16-10-20).
Generally, “all criminal cases shall be tried in the county where the crime was committed[.]” Ga. Const, of 1983, Art. VI, Sec. II, Par. VI.
The standard for review of the sufficiency of the evidence to support a criminal conviction 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. The review of the sufficiency of the evidence to support venue is no different because venue is an essential element that must be proven beyond a reasonable doubt in every criminal trial. In considering this standard, [the Supreme Court] and the Court of Appeals have consistently stated that the evidentiary review is limited to the evidence actually presented to the jury.
(Citation omitted.) McKinney v. State,
The evidence shows that the State called William Presnell, an investigator with the DeKalb County District Attorney’s Office, to testify at trial. Presnell testified that he and another investigator went to the “DeKalb jail” to interview Stockard and picked him up in a police vehicle from the sally port at the back of the jail. Specifically, he testified in response to questions about why two investigators handled the interview that it was a safety issue because, “[w]e’re interviewing at the jail. We actually leave the sally port area. So we leave the j ail at some point, and, you know, [it is] just policy, you’re not supposed to be driving a suspect around in your car by yourself.” (Emphasis supplied.)
In addition to part of the interview occurring at the jail, some portion of the interview, which involved questions related to the death of LaTroy McIntosh, was conducted in the police vehicle as it was driven around. During the interview, an audio recording of which was played for the jury,
1. Stockard has not challenged the sufficiency of the evidence apart from his allegation regarding venue. As a result, no issue concerning the sufficiency of the evidence to prove the crime of false statement is before us. Nonetheless, we find the evidence sufficient to sustain his conviction. Jackson v. Virginia,
2. Stockard asserts that the State failed to prove venue. He argues that the State offered no proof that the DeKalb County jail or the sally port are located in DeKalb County. He also argues that part of the interview took place while investigators were driving Stockard around and that there is no evidence as to whether they remained in DeKalb County as they drove, and thus, that the false statement may have been made in another venue. We agree that the State failed to prove venue.
The State may indeed be able to show circumstantially that the DeKalb County jail is in DeKalb County. In State v. Prescott,
Similar elements of circumstantial evidence are present in the instant case. We cannot say that a factfinder’s inference that the DeKalb County jail is in DeKalb County is unreasonable. Prescott, supra. Further, we have considered the county where a defendant is incarcerated as an element of proof of venue, and here, Stockard had
However, even if the interview began in DeKalb County, we do not know what county Stockard was in when he made the false statements. The audio recording of the interview indicates that Stockard made his initial false statement between eight and ten minutes after the recording began, and told the investigators the truth as to his whereabouts between sixteen and thirty-seven minutes after the recording began. There is no way to tell from the audio recording where the vehicle was when Stockard made the false statements.
As the State points out in its appellate brief, OCGA § 17-2-2 (e) provides that if a crime is committed in a car traveling within the state, and “it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the ... vehicle ... has traveled.” (Emphasis supplied.) OCGA § 17-2-2 (h) provides that where “it cannot be determined in what county a crime was committed” there is proper venue “in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” (Emphasis supplied.) Our Supreme Court found in Bundren v. State,
Here, because the State made no attempt to elicit evidence as to where the crime occurred, we are unable to say that the county in which the crime was committed “cannot be determined” or “cannot readily be determined.”
Absent any attempt by the State to question the investigators on this issue, there is no way to know what could have been determined as to venue. The law is abundantly clear that “[vjenue is a jurisdictional element of every crime, and the State has the burden of proving venue beyond a reasonable doubt.” (Citation omitted; emphasis supplied.) Bulloch v. State,
This situation would require a different analysis had the State propounded questions on the issue that the investigators were actually unable to answer or if, despite questioning by the State, some factor prevented the witness from knowing the location where a crime occurred. Compare Prudhomme v. State,
Here, the indictment specifically charged Stockard with committing the crime of making false statements in DeKalb County. Because the State failed to meet its burden, evidence of venue is insufficient. See Rogers v. State,
We note that because our reversal is based solely on a determination of insufficient evidence of venue, the State is not barred by the
Judgment reversed.
On Motion for Reconsideration.
The State essentially raises an admission in judicio argument on motion for reconsideration. Citing two sentences in Stockard’s appellate brief — absent any context — the State contends that because “allparties agreed that the false statements were made while [Stockard] was in the sally port at [the] DeKalb County jail” (emphasis supplied), this Court erred in determining that venue had not been proven because it “fail[ed] to properly defer to factual findings at the trial level.”
To support its contention that Stockard “agreed” that he made the false statements at the sally port of the DeKalb County jail, and thus that there is no dispute that venue is proper in DeKalb County, the State first cites this sentence from Stockard’s appellate brief: “Arguably, the only definite testimony regarding the location of where the false statements occurred was the sally port[.]” However, the immediately preceding sentence in Stockard’s appellate brief reads, “The problem here is the State failed to establish where the false statements were made, i.e., inside the jail, inside the vehicle while parked at the jail, or while the vehicle was traveling.” (Emphasis supplied.) Stockard’s appellate brief goes on to argue, “The State only established that . . . [the] investigators with the DeKalb County District Attorney’s Office [ ] picked up Stockard from the sally port and interviewed him inside their vehicle. This evidence does not establish whether they left the sally port before or after the false statement was made[.]” (Emphasis supplied.)
The State also cites another sentence from Stockard’s appellate brief: “It appears Stockard had already given the false statements while still at the sally port, prior to the investigators driving around.” Again, taken in context, this statement appeared immediately prior
Once they left the sally port, the investigators drove Stockard around without stopping for over 30 minutes. . . . The burden is on the State to prove beyond a reasonable doubt that Stockard made false statements in DeKalb County. The State introduced no evidence showing the location of the jail, sally port, or vehicle when the crime took place. To satisfy its burden of proof on venue, the State was obligated to prove that the jail, the sally port, and/or vehicle were located in DeKalb County when the false statements were made.
(Emphasis supplied.)
Here, Stockard’s arguments on appeal and in other pleadings below clearly contradict the contention that he “agreed” that the false statements were made at the sally port of the DeKalb Countyjail. See Morgan v. Morgan,
Further, at trial, a recording of the investigators’ interview with Stockard was played for the jury, which of course was perfectly capable of determining, based on what it heard, at what point in time after the start of the recording Stockard made the statements at issue. It is undisputed that Stockard made the statements some minutes after the investigators began recording the conversation — approximately between eight and ten minutes later, according to the audio recording in the record before us. No evidence was presented as to whether the vehicle was in motion or where the vehicle was when the investigators began recording the conversation. No evidence was presented as to where the vehicle was when Stockard made the false statements. Here, the recording and resulting transcript only show that one of the investigators initially noted that they were at the sally port; some minutes later, Stockard made the statements at issue.
Given this, the statements in Stockard’s appellate brief cited by the State — which begin, we note, with the conditional language of “[a]rguably” and “[i]t appears” — would be merely expressions of opinion as to the facts. See Flynn v. Mack,
We cannot agree with the State’s argument that, essentially, Stockard has on appeal admitted in judicio to a fact not proven at trial. The motion for reconsideration is denied.
Motion for reconsideration denied.
Notes
The jury found Stockard not guilty of malice murder, felony murder, armed robbery, aggravated assault, and criminal conspiracy.
Because the audio recording of this interview is in the record before us, Stockard’s motion to supplement the record with this exhibit is moot.
Miranda v. Arizona,
“[O]ur appellate courts have . . . repeatedly expressed frustration with the [S]tate’s failure to prove venue since it seems to us in many instances ... that proving venue is a simple exercise that generally requires the asking of one question.” (Citations and punctuation omitted.) Powers v. State,
On appeal, we look at all evidence properly before the jury in the light most favorable to the verdict. In the instant case, that evidence includes the tape recording of the investigators’ interview with Stockard during which he made the statements at issue.