Raymon Napoleon Walton was tried by a Harris County jury and convicted of murder, kidnapping with bodily injury, and theft by taking, all in connection with the death of Alkenyatta Wilson. He appeals, contending that the State failed to prove that venue properly lay in Harris County. Walton also claims that the trial court erred when it gave a preliminary charge to the jury and when it denied his motion for mistrial. Upon our review of the record and briefs, we see no error, and we affirm.
A few weeks before the trial, Wilson went missing. On the afternoon of July 27, his co-workers saw him leave the dealership in his truck with a man whom, they believed, was a customer. When Wilson did not return to the dealership, his co-workers went to the location to which, they thought, Wilson had driven with the customer, but they saw no sign of Wilson, his truck, or the customer. The co-workers helped investigators create a composite sketch of the customer, and investigators later received a tip from someone in Talbotton, who identified Walton as the customer depicted in the sketch, and who added that Wilson had been put into a well. Investigators were unable to find the well, however, and their case went cold after a few months.
The case was reopened in 2004 when investigators heard from an ex-girlfriend of Walton. She told them — and later testified at trial —• that Walton admitted to her that he helped to kill a man from Opelika who had worked with his brother and had tried “to send [his] brother to prison.” Walton also told her, she said, that they had tied up the man, taped his mouth, beat him, and thrown him headfirst into a well off Highway 315, somewhere in Harris or Talbot County. Investigators subsequently found Wilson in a well off Highway 315 in Harris County. By then, his body was badly decomposed, but forensic examiners were able to conclude that he most likely died of blunt force trauma to the back of his head. He was still alive, the forensic examiners found, when he was thrown into the well, and he survived there for some time, but eventually succumbed to his fatal injury. His truck was found buried in Talbot County.
2. Walton contends that the State failed to prove that venue lay in Harris County. A criminal case must be tried “in the county where the crime was committed,” Ga. Const. of 1983, Art. VI, Sec. II, Par. VI, and a murder is “considered as having been committed in the county in which the cause of death was inflicted.” OCGA § 17-2-2 (c). “If it cannot be determined in which county the cause of death was inflicted, it shall be considered that it was inflicted in the county in which the death occurred.” Id. And “ [i] f a dead body is discovered in this state [,] and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.” Id. In this case, there was no clear evidence that the fatal injury was inflicted anywhere other than Harris County, where Wilson was found, and where he died. Accordingly, the State sufficiently proved venue as to the murder.
About the kidnapping and theft, we note that venue may be proven by circumstantial evidence, and it generally is a question for the jury. See Pruitt v. State,
3. Walton also claims that the trial court erred when it gave a preliminary charge to the jury, specifically when the trial court charged that, “ [i] f the State doesn’t present any evidence, the [d] efendant walks out because he has no burden of proof.” According to Walton, this charge effectively lowered the burden of proof that the State must bear because it suggested that the State need only present “any evidence.” Walton did not object to the charge, however, and for that reason, we review it only for plain error. See Simmons v. State,
The charge about which Walton complains came at the end of a lengthy pattern charge, and it was preceded by a charge that correctly and completely stated the burden of proof for the State.
4. Finally, Walton contends that Wilson’s fiancée fainted in the presence of the jury and that the trial court should have granted a mistrial. As a witness was testifying about Wilson’s remains, something happened in the rear of the courtroom. Walton promptly moved for a mistrial, and his lawyer told the trial judge that the jury had seen the fiancée faint. The prosecuting attorney acknowledged that there had been a commotion of some sort, but said that it appeared that the fiancée merely tripped as she was exiting the courtroom. The trial judge concurred that the fiancée had only stumbled, and the court denied the motion for a mistrial. The trial court also denied a request to poll the jury about this incident and gave no instruction to the jury about it. On appeal, Walton argues that the commotion unfairly prejudiced him by provoking the sympathies of the jury.
“Whether to declare a mistrial is in the discretion of the trial court and will not be disturbed on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” Rafi v. State,
Judgment affirmed.
Notes
The crimes of which Walton was convicted were committed on July 27, 2001. Walton was indicted on January 10,2005 and charged with malice murder, felony murder, kidnapping with bodily injury, and armed robbery. His trial commenced on September 26, 2011, and the jury returned its verdict three days later, finding Walton guilty of malice murder, felony murder, kidnapping with hodily injury, and theft by taking as a lesser included offense of armed robbery. Walton was sentenced to a term of imprisonment for life for malice murder, a consecutive term of imprisonment for life for kidnapping with bodily injury, and a consecutive term of imprisonment for ten years for theft by taking. The verdict as to felony murder was vacated by operation of law. Malcolm v. State,
At trial, there was evidence that Walton hired someone to bury the truck in July 2001.
In 2009, OCGA § 16-5-40 (f) was amended to provide that kidnapping is “a continuous offense, and venue may be in any county where the accused exercises dominion or control over the person of another.” Ga. L. 2009, p. 331, § 1.
As a part of its preliminary charge, the trial court correctly instructed the jury:
A defendant is presumed to be innocent until he is proven guilty. Adefendant enters upon the trial of a case with a presumption of innocence in his favor, and this presumption remains with the defendant until it is overcome by the State with evidence that is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the crimes charged. . . . The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.
The trial court also informed the jury that
[t] here is no burden of proof upon the defendant whatsoever],] and the burden never shifts to the defendant to prove be [sic] prove his innocence.... If the State fails to prove the defendant’s guilt beyond a reasonable doubt, it will be your duty to acquit the defendant.
In addition, the trial court again properly instructed the jury on the burden of proof just before the commencement of deliberations, saying that
[u] nder our law, a defendant is presumed to be innocent until proven guilty. The defendant enters upon the trial of a case with the presumption of innocence in his favor, and this presumption remains with the defendant until it is overcome by the State with evidence that is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of each of the offenses charged.... Under our system, no person shall be convicted of any crime unless and until each element of the crime as charged is proven beyond a reasonable doubt. Now, the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the defendant whatsoever, and the burden never shifts to the defendant to introduce evidence or to prove innocence____If the State fails to prove the defendant is guilty beyond a reasonable doubt, it would be your duty to acquit the defendant. . . . The State has the burden of proof on those elements on each crime as charged in the case, and such burden never shifts to the defendant.