WHOLE COURT
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
July 16, 2012
In the Court of Appeals of Georgia A12A0225. MURRELL v. THE STATE.
BARNES, Presiding Judge.
Following the denial of his motion for new trial, Billy Edgar Murrell appeals
from his convictions for child molestation, two counts of sexual battery, four counts
of stalking, aggravated assault, false imprisonment, terroristic threats, and public
indecency. Murrell contends that his trial counsel was ineffective, that the trial court
erred in admitting similar transaction evidence, and that the evidence was insufficient
to support any of his convictions except public indecency. For the reasons that follow,
we reverse the terroristic threats conviction but affirm the remaining ones.
1. Murrell challenges the sufficiency of the evidence supporting his convictions
for child molestation, two counts of sexual battery, four counts of stalking,
aggravated assault, false imprisonment, and terroristic threats. When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, “the
relevant question 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.” (Citation omitted; emphasis in original.)
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).
It is the duty of the jury, not this Court, to resolve conflicts in the testimony, weigh
the evidence, and draw reasonable inferences from the evidence. Id. “As long as there
is some competent evidence, even though contradicted, to support each fact necessary
to make out the State’s case, the jury’s verdict will be upheld.” (Citation and
punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).
So viewed, the record reveals that during the summer of 2002, local police
received reports of several incidents involving Murrell. Victim R. C. testified that she
had met Murrell during the summer of 2002, and they initially had a friendly
relationship but not a romantic one. It soon became apparent that Murrell was
following her, because he would show up unexpectedly at different places where she
was present. She recounted an instance when Murrell followed her to the library and
took photographs of her, and another when he showed up at a grocery store and
2 would not let her go in until she agreed to talk with him. Murrell then followed her
into the store and observed her as she shopped.
Later that summer, Murrell approached R. C. while her son was swimming at
Rocky Mountain beach and began yelling at her that he had been at the beach all day
waiting for her. R. C. tried to gather her things to leave but Murrell carried her into
the water over her protestations that she could not swim. After R. C.’s son became
very upset, Murrell carried R. C. back to the beach, dumped her on the ground, took
her cell phone, keys, and shoes, then left in his car.
As R. C. headed for her car with her son, a park ranger drove up and R. C.
obtained his assistance. Murrell then drove up and the ranger began to talk to him.
Pursuant to the ranger’s direction, R. C. went to a nearby campsite and asked an
investigator with the Floyd County Police Department, who was camping with his
family, to come and help detain Murrell. Back at the beach parking lot, the ranger
made Murrell return R. C.’s belongings and he and the investigator detained Murrell
while R. C. left. Later that day, Murrell found R. C. and her son at a gas station and
blocked her car with his, then began “raging” about needing to talk to someone. R.
C.’s son was screaming and terrified, and Murrell finally backed up and let R. C.
leave the station.
3 Later that summer, R. C. testified, she was staying overnight with her children
at a local hotel when Murrell came into her room, held her down, and raped her, then
threatened to hurt her children if she told anyone.
The investigator testified about the incident at the beach and his assistance in
detaining Murrell pursuant to the ranger’s request for assistance. When the
investigator returned to work the next week, he received a telephone call from victim
T. H., who also reported an incident involving Murrell at Rocky Mountain the
previous weekend.
T. H. had met Murrell at the grocery store where he worked, and he had
followed her home and shown up uninvited at her home on several occasions. Over
the next few months his harassment escalated, and in August 2002, Murrell showed
up at Rocky Mountain beach where T. H. was swimming with her husband and
children. While T. H.’s husband was on a boat out in the lake, Murrell followed her
around the beach, and when T.H. attempted to leave in her car with her children,
Murrell placed his hands on her car window so she could not roll it up, dropped his
swim trunks, and began to fondle himself. T. H. drove down to where her husband
was, and Murrell drove off. Her husband got in his car and chased Murrell, who got
away.
4 The investigator noticed that another officer was also working on a case
involving Murrell, in which he had allegedly exposed himself to a woman at a local
college. Later on the same day T. H. came to the station to report her encounter with
Murrell at the beach, the investigator secured an arrest warrant against Murrell for
stalking and a search warrant for his residence. When police executed the search
warrant, they discovered numerous photographs of R. C., T. H., and other
unidentified women. Later that evening, police located Murrell in his car and arrested
him. His passenger, F. C., told police that Murrell had held her against her will at his
home for several days and made her have sex with him.
As a result of articles about Murrell in the local newspaper identifying him as
a convicted sex offender, several other victims came forward, resulting in additional
charges against him. Specifically, A. B. testified that she recognized Murrell from his
picture in the paper, and that in June 2002, Murrell approached her car as she was
waiting for her parents at a local bank. He asked if she was having car problems and
offered her a ride. He later followed her into the bank, sat down beside her, and struck
up a conversation, leaving only when her parents arrived. On another occasion, she
had a conversation with Murrell at the grocery store where he worked, but became
frightened when he showed up later that day at the church she went to after leaving
5 the grocery store. A. B. saw a vehicle similar to Murrell’s parked in front of her home
on several different occasions.
K. F.’s mother also contacted police when she saw the newspaper article. In
early July of 2002, she and her children were at Rocky Mountain beach when her 10-
year-old daughter K. F. told her that a man had touched her private parts. The
children later identified Murrell from the newspaper article as that man. K. F. told
police that she and several other children were playing in the water when Murrell
approached them and offered to toss them in the water. After the first time, K. F. said,
she did not want to be “throwed [sic] no more because [Murrell] touched [her] private
parts,” and she left the water. She told her sister about the incident, and the two went
to a nearby bathroom but left when Murrell followed them there.
The police contacted S. E. after discovering her restaurant name tag and
photographs of her in Murrell’s residence. She told police that Murrell had been her
customer during the early summer of 2002, but that, after a while, he “gave [her] the
creeps.” She said that he was “too touchy and too feely” and would hug her and try
to rub against her buttocks or chest. He had suggested taking her and her children out,
and she avoided him when he came into the restaurant, asking her co-workers to wait
on him instead.
6 J. L., another employee at the same restaurant, saw the articles in the newspaper
and reported that she also knew Murrell from the restaurant. She said that he was a
regular customer and appeared at first to be “a very nice gentleman, [and] real
friendly.” J. L. testified that on July 21, 2002, Murrell gave her a ride home and
forced his way into her house. He forcibly kissed her, pinned her against the counter,
pulled her shirt down, and “suck[ed] her left breast.” He was “trying to get his hands
in [her] pants” when he heard a car pull in nearby and left, after telling her that she
would be sorry if she told anyone what happened.
On July 29, 2002, D. B. was running on the track around the lake at a local
college. Murrell approached and asked her if she wanted to go fishing with him. She
said no, and turned and “ran back the other way.” She ran as far as she could but her
usual path was closed, so she ran back and discovered that Murrell had parked his car
in a way that blocked hers from exiting. As she began to run past her car to an
occupied building nearby, Murrell opened his car door and “giggled,” and D. B. saw
that he was nude and masturbating. She continued running and Murrell drove up
beside her, asking her if she wanted a ride. Another car approached and Murrell drove
away, but D. B. was able to write down Murrell’s license plate number. She positively
identified him from a photographic lineup.
7 Following the trial, the jury found Murrell guilty of one count each of child
molestation (K. F.), aggravated assault (J. L.), false imprisonment (R. C.), terroristic
threats (R. C.), public indecency (D. B.), two counts of sexual battery (S. E. and J. L.),
and four counts of stalking (J. L., R. C., T. H., and A. B.). It acquitted him of two
counts of rape, four counts of stalking, and one count of sexual battery.
Murrell does not contest the public indecency conviction, but contends that the
evidence was insufficient to support the other convictions. He argues that the State
failed to show beyond a reasonable doubt that he was not merely playing with K. F.,
or that the aggravated assault against J. L. was more than a casual advance that she
misconstrued. He also contends that the evidence was insufficient to support his
convictions for terroristic threats and false imprisonment of R. C. He argues that, in
light of his acquittal for the rape of R. C., it follows that he did not commit the other
acts – terroristic threats and false imprisonment– that allegedly happened on the same
day.
This Court cannot weigh conflicting evidence or determine the credibility of
the witnesses. “As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the State’s case, the jury’s
verdict will be upheld.” (Citations and punctuation omitted.) Hash v. State, 226 Ga.
8 App. 643 (487 SE2d 452) (1997). Considering the evidence in the light most
favorable to the jury’s verdict, sufficient evidence was presented to authorize the jury
to find Murrell guilty of child molestation by touching the vagina of K. F. as alleged
in the indictment, under the standard set forth in Jackson v. Virginia, 443 U. S. 307
(99 SC 2781, 61 LE2d 560) (1979).
Regarding the aggravated assault, Murrell was indicted for the offense of
assaulting J. L. “with the intent to rape.”1 J. L. testified that Murrell forced his way
into her house, kissed her against her will, and attempted to pull her pants down,
stopping only when he heard another car drive up. “The crime of aggravated assault
with intent to rape is complete when there is a substantial step toward a battery of the
victim, i.e., an assault, coupled with intent to rape.” (Citation and punctuation
omitted.) Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990). As noted
before, it was for the jury to assess the witnesses’ credibility, and based on the
evidence in this case, the jury was authorized to conclude that Murrell intended to
rape the victim.
1 “A person commits the offense of aggravated assault when he or she assaults[] [w]ith intent to murder, to rape, or to rob.” OCGA § 16-5-21 (a) (1).
9 Murrell challenges the terroristic threat and false imprisonment convictions
stemming from the incident between him and R. C. at a hotel. The jury acquitted
Murrell of rape, but convicted him of terroristic threats, OCGA § 16-11-37, and false
imprisonment, OCGA § 16-5-41, arising from that incident.
We note first that although Murrell maintains the convictions cannot stand
because he was acquitted of rape, even if the acquittal was inconsistent with the
convictions, the inconsistency cannot be used as an avenue to challenge the
convictions because the “inconsistent verdict rule” has been abolished in this State.
Milam v. State, 255 Ga. 560, 562 (2) 341 SE2d 216 (1986).
Regarding the terroristic threats charge involving R. C., R. C. testified that she
was sleeping on the floor of the hotel room at the foot of one of the beds in which her
children were sleeping. Murrell entered the room, lay on top of her, “put his hand
over [her] mouth and turned [her] head to the side so he could get to [her] ear.” She
testified that he told her that if she screamed or was loud he would hurt or kill her
children, after which Murrell had forcible intercourse with her, leaving when her
daughter woke up.
Murrell was charged with threatening “to commit a crime of violence against
[R. C.]” with the intent to terrorize.
10 A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another. The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.
(Citations and punctuation omitted.) Clement v. State, 309 Ga. App. 376, 379 (1) (710
SE2d 590) (2011). However, no person shall be convicted of the offense of terroristic
threats based on the uncorroborated testimony of the person to whom the threat was
communicated. OCGA § 16-11-37 (a). While only slight evidence may be sufficient
for corroboration, Boone v. State, 155 Ga. App. 937, 939 (1) (274 SE2d 49) (1980);
Wilson v. State, 291 Ga. App. 263, 264 (1) (661 SE2d 634) (2008), in this case R. C.’s
testimony is completely uncorroborated.
Murrell told R. C. that if she made any noise during intercourse he would “hurt
or kill” the children. While the dissent correctly notes that Murrell was involved in
crimes against other women during this period, the corroboration conduct as to the
terroristic threats, although slight, must be “corroboration of the circumstances during
which [the] terroristic threat [was] uttered.” In the Interest of C. S. G., 241 Ga. App.
37, 38 (1) (525 SE2d 106) (1999).
11 In Scott v. State, 225 Ga. App. 729 (484 SE2d 780) (1997), we determined that
there was sufficient corroboration of terroristic threats based on the laceration the
victim received when Scott stabbed her, the victim’s testimony, “as well as the
testimony of a witness who observed [the victim] immediately following the incident”
and saw that she was nearly hysterical. Id. at 732 (3). In Martin v. State, 219 Ga. App.
277, 283 (10) (464 SE2d 872) (1995), the victim’s testimony was corroborated by
several witnesses who testified that after the incident the victim was “frightened,”
“nervous and scared,” “literally terrified,” “very afraid,” and “scared to death.” In
Sprayberry v. State, 241 Ga. App. 501, 503-504 (3) (527 SE2d 224) (1999), testimony
from a witness that when the victim “banged” on his door and asked to use his phone,
she was “terrified,” “really agitated,” and “nervous almost to the point of shaking,”
was sufficient corroboration of the appellant’s threat to kill the victim.
Even though J. L. testified that Murrell said that she would be “sorry” if she
told anyone about Murrell’s attack, we have held that similar corroborated threats
against one victim could be used to corroborate threats against another victim. Ellis
v. State, 176 Ga. App. 384, 386-87 (3) (336 SE2d 281) (1985). In Ellis, the appellant
was charged with two counts of terroristic threats, one which was corroborated by the
victim’s daughter and other witnesses who overheard the defendant threaten to “kill
12 the victim and to kill “all white men.” ( Punctuation omitted.) Id. at 386. The second
count was based on appellant’s threat against a police officer who arrested Ellis to
“kill the officer and to kill all white police officers.” Id at 387. The second threat
occurred in the patrol vehicle and was only witnessed by the officer. Id at 387. We
held that the officer’s testimony was sufficiently corroborated because the previous
corroborated threat was similar and tended to prove that the incident involving the
officer had occurred. Id.
In this case, however, J. L.’s threats were not corroborated by any other
witnesses, and thus not sufficient to corroborate the uncorroborated threats against
R. C. Moreover, although there were several witnesses present at the hotel with R. C.,
there is no corroborating evidence, even slight, “that the incident occurred as
alleged.” (Citations and punctuation omitted.) Scott v. State, 225 Ga. App. at 732 (3).
Slight corroboration of the circumstances during which a terroristic threat is uttered
is . . . necessary to satisfy OCGA § 16-11-37 (a)’s requirement.” (Citation omitted
and emphasis supplied.) In the Interest of C. S. G., 241 Ga. App. at 38 (1); Drew v.
State, 256 Ga. App. 391, 393 (1) (568 SE2d 506) (2002) (even though victim did not
hear threat, her testimony about Drew’s violent behavior towards her was sufficient
to corroborate the police officer’s testimony that he heard Drew threaten the victim).
13 Thus, in this case, as Murrell’s threat to “hurt or kill” the victim’s children was
uncorroborated, the evidence was insufficient to sustain his conviction for the offense
of terroristic threats. Accordingly, we must reverse that conviction. See Hanvey v.
State, 186 Ga. App. 690 (1) (368 SE2d 357) (1988).
Murrell also contends that insufficient evidence supports his false
imprisonment conviction. The indictment charged that Murrell did “unlawfully. . .
arrest, confine and detain [R. C.] without legal authority.” All that is required to prove
false imprisonment “is there be an arrest, confinement or detention of the person,
without legal authority, which violates the person’s personal liberty (i.e., against his
or her will).” (Citation and punctuation omitted.) Armstrong v. State, 244 Ga. App.
871, 872 (1) (537 SE2d 147) (2000). See also OCGA § 16-5-41 (a). Here, evidence
was presented that Murrell came into R. C.’s room uninvited, put his hand across her
mouth, and lay on top of her, confining her movement and rendering her unable to
resist. This evidence is sufficient to sustain Murrell’s conviction for false
imprisonment. Rehberger v. State, 235 Ga. App. 827, 827-828 (1) (510 SE2d 594)
(1998); Herrin v. State, 229 Ga. App. 260, 263 (3) (493 SE2d 634) (1997) (OCGA
§ 16-5-41 (a) does not on its face require that imprisonment be for specific length of
time).
14 2. Murrell also contends that his trial counsel was ineffective for failing to
object and move for a mistrial when the State failed to present at trial evidence of the
similar transaction for which it had given notice; for failing to keep out hearsay
evidence of a separate allegation of child molestation; for failing to move for a
change of venue; and for failing to move for a mistrial when the jury was given an un-
redacted transcript containing allegations of a crime for which he had not been
indicted.
To establish ineffective assistance, [Murrell] must show both that his trial counsel’s performance was deficient and that this deficiency prejudiced his defense. [Murrell] must establish both elements; if we determine that one element is missing we need not consider whether the defendant has established the other element.
Hinton v. State, 290 Ga. App. 479, 481 (2) (659 SE2d 841) (2008).
a. The State filed notice of its intent to present evidence that Murrell had
previously pled guilty to kidnapping, rape, and aggravated sodomy. Following a
hearing, the trial court ruled that the evidence was admissible. At the end of the
State’s case-in-chief, the State informed the trial court that its similar transaction
witness had been hospitalized and would not be available to testify, so it would not
be presenting the similar transaction evidence. Murrell contends that his trial counsel
15 was ineffective for failing to move for a mistrial at that point, because his trial
strategy “relied heavily” on the similar transaction evidence being presented at trial.
At the motion for new trial hearing, trial counsel testified that even if he had
known that the similar transaction was not coming in, he probably would not have
changed his trial strategy. He testified that he “probably would have told the jury
about [the similar transaction] anyway” because “our theory was that most of these
allegations were made by witnesses who were not credible, who had made these
reports only after learning that there was a convicted sex offender living in their
community.”
We must measure the trial counsel’s performance under the circumstances
existing at trial. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).
Although another trial counsel might have pursued a different strategy or tactic, the
existence of an alternative course of action does not constitute ineffective assistance
of counsel. Heard v. State, 177 Ga. App. 802, 804 (5) (341 SE2d 459) (1986). The
constitutional right to assistance of counsel means “not errorless counsel, and not
counsel judged ineffective by hindsight, but counsel reasonably likely to render and
rendering reasonably effective assistance.” (Citation and punctuation omitted.)
Alderman v. State, 241 Ga. 496, 511 (8) (246 SE2d 642) (1978). Considering the
16 totality of the circumstances in Murrell’s trial, he has not met his burden under
Strickland v. Washington of showing that his counsel’s performance was deficient for
failing to move for a mistrial when the State was unable to introduce its similar
transaction evidence.
b. Murrell also asserts that counsel should have filed a motion for a change of
venue because of the publicity surrounding his arrest. To support a motion for a
change of venue, Murrell had the burden of demonstrating “(1) that the trial’s setting
was inherently prejudicial or (2) that the jury selection process revealed actual
prejudice to a degree that rendered a fair trial impossible. [Cit.]” Brady v. State, 270
Ga. 574, 575 (3) (513 SE2d 199) (1999).
At the hearing on the motion for new trial, Murrell’s trial attorney testified that
he did not recall an overwhelming amount of media coverage on the case, which came
to trial approximately two years after the initial publicity. Further, he testified that his
trial strategy was to use the publicity surrounding the case to demonstrate that some
of the victims were not reliable and that their calls to police were generated by the
newspaper articles rather than made contemporaneously when the incidents occurred.
Trial counsel testified that he could not recall the specific responses of the jurors to
17 questions about pretrial publicity, but that prejudice in the pool must have been
limited because they were able to satisfactorily seat a jury.
Other than showing that six stories ran in the local newspaper between August
22, 2002 and October 19, 2002, Murrell did not present any evidence at the motion
hearing to show that the jury could have been unfairly tainted or biased in the context
of a trial that occurred in May 2004. “Under those circumstances, there being no
evidence the trial’s setting was inherently prejudicial or the jury selection process
showed actual prejudice to a degree that rendered a fair trial impossible, [Murrell] has
not shown the failure to seek a change of venue constituted ineffective assistance of
counsel.” (Citation omitted.) Williams v. State, 277 Ga. 853, 858-859 (6) (d) (596
SE2d 597) (2004). Moreover, trial counsel’s assessment that the venue was not
tainted fell within reasonable trial strategy and tactics and do not amount to
ineffective assistance of counsel. Hazelrigs v. State, 255 Ga. App. 784, 786 (2) (567
SE2d 79) (2002).
c. Murrell further contends that trial counsel was ineffective for failing to keep
out harmful hearsay about another allegation of child molestation contained in the
recorded interview with K. F. that was played to the jury. During the recorded
interview, K. F. told the investigator that “Ashley” told her that Murrell had touched
18 her in the same way he touched K. F. Murrell asserts that the hearsay violated his
Sixth Amendment right to confront and cross-examine the witnesses against him, and
his trial counsel’s failure to object constituted error.
This claim, however, was not raised in the motion for new trial as amended or
at the hearing in the matter. Thus, this allegations of ineffectiveness is deemed
waived because a defendant is obligated to raise all allegations of ineffectiveness of
counsel at the earliest practicable moment. Hayes v. State, 262 Ga. 881, 882 (2) (426
SE2d 886) (1993).
d. Murrell also contends that trial counsel was ineffective for failing to request
that the trial court ask the jurors if they had read ahead in their copy of the transcript
of an interview being played in open court. During the trial, the State played the tape
of a police interview with victim R. C., and the jury was given a transcript of the
interview to read along as the tape played. While reading ahead, trial counsel
discovered an un-redacted hearsay statement R. C. made concerning her cousin’s
comments about Murrell. The cousin was not a witness at trial. Trial counsel raised
an objection, the trial court sustained the objection, and the bailiff collected the
jurors’ transcripts.
19 At the motion for new trial hearing, trial counsel testified that he did not ask
for a curative instruction because he did not want to bring unnecessary attention to
the statement, and that in his experience, jurors follow along “word for word” with
the audiotape and the transcript. He further testified that he believed that he had
discovered the inadmissible hearsay before it was exposed to the jury.
As stated earlier,”[t]rial strategy and tactics do not equate with ineffective
assistance of counsel.” (Punctuation and footnote omitted.) Caylor v. State, 255 Ga.
App. 362, 364 (1) (566 SE2d 33) (2002).
When a defendant’s complaint relates to tactical judgments made by trial counsel, in the absence of a showing, and there is none in the present case, that the trial counsel’s loyalty, integrity or best use of his ability is questioned, a new trial will not be granted on the ground that the defendant was not afforded competent representation.
(Citation and punctuation omitted.) Sledge v. State, 312 Ga. App. 97, 103-104 (2) (b)
(717 SE2d 682) (2011). Here, trial counsel’s decision not to seek a mistrial on this
ground was a tactical decision and was not ineffective.
3. Murrell also asserts as error the trial court’s jury instruction regarding
similar transaction evidence because the State did not introduce such evidence at trial
and the instruction “inappropriately drew attention to the similar transaction.” While
20 absent the State’s introduction of evidence regarding the similar transaction the
charge was not relevant or applicable, reviewing the charge as a whole, as we must,
we conclude that the error was harmless. Stansell v. State, 270 Ga. 147, 150-151 (4)
(510 SE2d 292) (1998). The trial court adequately and appropriately informed the
jury of the charges against Murrell, of his presumption of innocence, of the State’s
burden of proof, and of its duty to acquit if it did not find him guilty beyond a
reasonable doubt. Id.
Judgment affirmed in part and reversed in part. Mikell, P .J., and Miller, J.,
concur. Adams, J., concurs in judgment only. Doyle, P. J., Blackwell and McFadden,
JJ., concur in part and dissent in part.
21 A12A0225. MURRELL v. THE STATE.
MCFADDEN, Judge, concurring in part and dissenting in part.
I respectfully dissent from the portion of division 1 that reverses Murell’s
conviction for terroristic threats. I concur fully in the remainder of the majority
opinion.
I would hold that, “[t]he victim’s testimony in this regard was sufficiently
corroborated by the evidence concerning the events which transpired immediately
before and after the appellant made the asserted threats.” Steele v. State, 196 Ga. App.
330, 331 (3) (396 SE2d 4) (1990). “[C]orroborating conduct includes the defendant’s
commission of similar transactions which were clearly interwoven and linked
(connected) with the facts of the crime charged.” (Citations omitted.) Alatise v. State, __ Ga. __, __ (5) (__ SE2d __) (Case number S12A0024, decided June 18, 2012).
Here “the evidence of a clear crime spree committed by [Murrell] both before and
after the [terroristic threat made to R. C.] corroborated [R. C.’s] testimony.” Id. And
that evidence “showed a clear modus operandi” of targeting and isolating women. Id
His effort to discourage R. C. from calling for help was consequently sufficiently
“interwoven and linked” with the rest of his crime spree for his other crimes to
provide the slight corroboration necessary to sustain his conviction for terroristic
threats.
I note that Alatise involved corroboration of a co-defendant’s testimony and
that we have found no cases in which similar transactions involving other victims
have been recognized as the corroboration necessary to sustain a conviction for
terroristic threats. Nevertheless, “[i]n order to interpret [the corroboration requirement
of the terroristic threats statute], reference can be made to other corroboration
requirements in Georgia law.” Robert E. Cleary, Jr., Kurtz Criminal Offenses and
Defenses in Georgia, Terroristic Threats and Acts, p. 1752 (2011 ed.).
In that regard, as the majority notes, Murrell also threatened another of his
victims, J. L., if she told anyone about his attack. While the majority attempts to
distinguish the instant case from Ellis v. State, 176 Ga. App. 384 (336 SE2d 281)
2 (1985), that case sets forth the rule of law that controls this case. “[T]he corroboration
requirement of OCGA § 16-11-37 has been analogized to the corroboration that was
formerly required in rape cases and that is still required in statutory rape cases. In
crimes involving sexual offenses, evidence of similar previous transactions is
admissible to corroborate the testimony of the victim as to the act charged.”
(Citations and punctuation omitted; emphasis in original). Id at 387 (3). Thus, J. L.’s
testimony of a similar threat by Murrell during an assault was sufficient to
corroborate R. C.’s testimony as to Murrell’s terroristic threat during his assault of
her.
Indeed, “[s]light circumstances may be sufficient for corroboration and the
question of corroboration is one solely for the jury. If there is any evidence of
corroboration, this court will not go behind the jury verdict and pass on its probative
value.” (Citations and punctuation omitted.) Id. at 386 (3). Because there is some
evidence corroborating the victim’s testimony, Murrell’s terroristic threats conviction
should be affirmed.
I am authorized to state that Presiding Judge Doyle and Judge Blackwell join
in this dissent.