Todd v. StateTodd v. State
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- Eldridge
A Dоuglas County jury found appellant Ralph Lee Todd guilty of theft by taking (motor vehicle), terroristic threats, and stalking. He appeals.
The evidence shows that the victim broke off her relationship with appellant and that appellant did not take it well. In retaliation, appellant stole the victim’s car. The victim callеd the police and reported appellant’s act. Several days thereafter, appellant broke into the victim’s home, beat her severely about the neck and face with a gun, raped her, and complained about her contact with the police. The victim reported the assault/rape to the police. Four days after that, appellant called the victim at her office (the speaker phone was on) and threatened to “get her” for her repeated contact with the police; appellant stated he was “not going back to prison.” In addition, appellant let the victim knоw that he had placed her under surveillance by informing her that he knew who had changed the locks on her home, that he knew she had a gun in her home, and that he knew the police had been at her workplace.
Herein, appellant does not challenge the sufficiency of the evidence introduced agаinst him, and we find the evidence sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Instead, appellant claims that three errors of law require reversal. Upon review, we disagree and affirm.
1. Appellant first contends that the trial court erred in refusing to give his written request to charge the jury on the offense of harassing telephone calls,
A reading of
Further, a crime, is considered “included” in another offense when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commissiоn of the crime charged.”
However, “[t]he complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Emphasis in original.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); Huckeba v. State, 217 Ga. App. 472, 475 (458 SE2d 131) (1995). Under the facts of this case, the state’s evidence was sufficient to establish all of the elemеnts of the indicted offense of terroristic threats (as conceded by appellant); appellant’s defense was that he never made any threats or intimidating remarks at all. Thus, under the evidence, either appellant was guilty of the indicted offense or he was guilty of no offense whatsoever. “Where, as here, thе evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” (Citations and punctuation omitted.) Leaver v. State, 211 Ga. App. 876, 878 (2) (440 SE2d 760) (1994). Accordingly, under the circumstances existing herein, there was no error in the trial court’s refusal to charge the lesser included offense.
2. Next, appellant challenges the introduction of the similar transaction evidence wherein appellant broke into the victim’s home, assaulted her, and raped her. Appellant’s challenge to this evidence is premised on three separatе grounds: (a) the rape accusation is allegedly unrelated to the indicted offenses; (b) the state failed to articulate a proper purpose for the introduction of this evidence pursuant to Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991); and (c) the trial court failed to charge the jury on the limited purpose for their consideration of this evidenсe.
At the outset, as the trial court correctly noted, this evidence is in fact evidence of “prior difficulties between the parties,” not “similar transaction” evidence which concerns completely independent offenses. As noted by Supreme Court of Georgia Presiding Justice Hunt before his departure for the federal bench, “What is true in this case is generally true with all cases involving prior difficulties between a victim and a defendant. The history of their relationship is of whole cloth woven of the many threads of dependent, connected actions and incidents that occurred between them. In short, evidence concerning prior difficulties they have experienced in their relationship is relevant.” Stewart v. State, 263 Ga. 843, 849-850 (440 SE2d 452) (1994) (Hunt, P. J., dissenting). Accordingly, we analyze the admissibility of the evidence about which appellant complains, prior difficulties evidence, with this in mind. See Maxwell v. State, 262 Ga. 73, 74 (2) (b) (414 SE2d 470) (1992).
(b) The state articulated a proper purpose for the introduction of such evidence: “I think the rape which I’ve enumerated as a similar transaction is important because it is in the middle of a course of conduct of harassment and intimidation in an attempt to win her back or show her that she doesn’t need to go to the police. . . . [I]t goes to the issue of why is she — the purpose of his conversation terrorizing.” (Emphasis supplied.) See, e.g., Williams, supra at 642.
(c) The trial court properly limited the jury’s consideration of the prior difficulties evidence to appellant’s course of conduсt and state of mind, i.e., intent. The fact that the trial court defined “state of mind” for the jury as “knowledge, intent, motive, and other mental conditions” does not result in a “laundry list” of permissible purposes for the consideration of such evidence as was proscribed by this Court in Stephan v. State, 205 Ga. App. 241 (422 SE2d 25) (1992). There was no error.
3. In his last enumeration of error, appellant contends thаt the trial court erred in granting the state’s oral motion in limine, thereby refusing to allow appellant to testify as to his alibi defense that he was at work at the time the victim’s car was stolen.
The record shows that appellant opted to proceed under the discovery procedures of
(a) Appellant asserts that
The provisions of the Discovery Act were designed to facilitate disclosure of evidence in order to ensure “fairness” in criminal adversarial proceedings. While this may seem an oxymoron to some, such was the intеnt. Accordingly,
(b)
As a practical matter under the facts of this case, the trial court could not fashion a remedy from prongs 1 and 2, “discovery or inspection,” since such remedies are not relevant to non-disclosure of an alibi defense and, thus, provide no cure. Also, the trial court could not fashion a remedy from prong 3, interview of the witness, since the witness on the list could not be found by any party, and the defendant as a witness has. a constitutional right to remain silent; moreover, interviewing a witness during trial is no remedy for the nоndisclosure of an alibi defense, since the purpose of the statute, allowing the state to uncover rebuttal evidence ahead of trial and provide such evidence to the defense, would be completely frustrated by a remedy that simply authorizes an interview of the alibi witness during the course of the trial. In addition, the trial court could not fashion a remedy from prong 4, granting a continuance: clearly, after jeopardy has attached and the state has rested, the granting of a continuance in order to allow the state to investigate the non-disclosed alibi defense, gather evidence to rebut it, and provide such evidence to the defense would be impractical and would jeopardize trial procedures. Thus, the only applicable remedy under the facts of this case would be under prong 5, exclusion upon a showing of prejudice and bad faith.
In reviewing a trial court’s decision on an oral motion in limine, “we construe thе evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted; emphasis supplied.) Davis v. State, 226 Ga. App. 83, 84 (485 SE2d 508) (1997).
The prejudice to the state from a defendant’s failure to disclose an alibi defense until trial is obvious: the state is denied the ten days authorized by law in which to investigate and refute the alleged alibi, and the development of such evidence is clearly hampered, if not rendered impossible. Further, in this case the appellant hаd over a year in which to disclose to the state the
specific
location he claimed to be at the time of the offense and information regarding those witnesses who would testify thereto; the appellant offered the trial court no valid excuse for the failure to provide such statutorily required notification and no justifiсation for the filing of a completely deficient notice one working day before trial. See footnote 4, supra. Such defense conduct frustrated the very purpose and intent of the Act. Thus,
(c) Moreover, appellant was able to put forward his alleged alibi defense as he proffered it to the trial court: that “[ajppellant was working the entire day of December 23, 1993, and so he could not have been at the location where the victim’s car wаs stolen.” The appellant testified that he worked the entire time that he and the victim dated, and that he left for work each morning at 5:30 a.m. The victim testified that appellant had been working for most of the time she knew him; that he called her regularly from work during his breaks; and that she had thought appellant had gone to work on thе day her car was stolen. The appellant testified that he found out that the victim’s car was stolen when he called her during his lunch break at work, and she told him that it had been stolen. “Pretermitting error, if any, harm also must be shown affirmatively on the record in order to authorize reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (442 SE2d 901) (1994).” Davis v. State, 225 Ga. App. 564, 570 (7) (484 SE2d 284) (1997). As the substance of aрpellant’s alibi was put before the jury, no harm has been shown.
Judgment affirmed.
Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.
Notes
The offense of terroristic threats also requires corroboration by one or more witnesses, which requirement is not present in the offense of harassing telephone calls.
Compare Usher a State, 143 Ga. App. 843 (240 SE2d 214) (1977), which case did not determine whether “harassing telephone calls” is a lesser included offense of the crime of “terroristic threats.” Usher decided only that if the threat of physical violence is made with the felonious intent to terrorize, the fact that the threat is communicated via telephone does not reduce the crimе to the misdemeanor offense of “harassing telephone calls.” Id. at 844.
Appellant’s assertion regarding a constitutional right to testify as his alibi defense, i.e., “tell his side of the story,” was not raised at trial, and we will not consider it. Stewart v. State, 210 Ga. App. 474, 478 (13) (436 SE2d 679) (1993).
The disclosure notice to which appellant refers this Court states only that on the day the victim’s cаr was stolen, appellant was working “at a location other than that of the alleged incident.” The name and address of this location was not disclosed, and the witness who was listed on the notice could not be located by either the prosecution or the defense. Moreover, the notice to which appellant refers was filed on August 25, 1995; the trial date was the next working day, Monday, August 28, 1995.