Carswell v. State

534 S.E.2d 568, 244 Ga. App. 516, 2000 Fulton County D. Rep. 2379, 2000 Ga. App. LEXIS 606
CourtCourt of Appeals of Georgia
DecidedMay 12, 2000
DocketA00A0555
StatusPublished
Cited by2 cases

This text of 534 S.E.2d 568 (Carswell v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carswell v. State, 534 S.E.2d 568, 244 Ga. App. 516, 2000 Fulton County D. Rep. 2379, 2000 Ga. App. LEXIS 606 (Ga. Ct. App. 2000).

Opinion

Andrews, Presiding Judge.

Darren Edward Carswell appeals from the trial court’s denial of his motion for new trial after his conviction by a jury of kidnapping, terroristic threats, child molestation, criminal attempt to commit rape, and assault with a deadly weapon.

1. Carswell’s first enumeration is that the trial court erred in not permitting trial counsel to state and argue his motion for directed verdict and also that the trial court should have granted the motion based on the State’s failure to prove that the charged acts occurred in [517]*517Twiggs County as alleged.1

No objection was voiced by trial counsel when the trial court stated, after Carswell’s motion for directed verdict was made, that the court would allow the jury to consider the case and no farther argument was needed. Therefore, we do not further consider this argument.

Examining the sufficiency of the evidence regarding venue, which was alleged in Twiggs County on all charges, and viewing the evidence in favor of the jury’s verdict, Mincey v. State, 237 Ga. App. 463, 464 (2) (515 SE2d 433) (1999), it was that Carswell and Walker, the mother of victim L. S., had gone to school together and were neighbors in Danville. Danville is partially located in two counties, Twiggs and Wilkinson. Walker’s home was in Wilkinson County, and Carswell lived within walking distance of her home.

On December 12, 1995, when she was 11 years old, L. S. was walking from church, where she had been practicing for a Christmas pageant, to her maternal grandmother’s home not far from the church. Walker testified that L. S.’ grandmother’s house was located in Twiggs County.

As L. S. walked along, she saw Carswell, whom she knew, approach. He grabbed her by her arm and pushed her into some bushes and a ditch. Carswell tried to take her shirt off while holding her down with his knees on her legs, which he had spread. L. S. screamed and squirmed, but no one else was around. Carswell put his hands on her panties and rubbed her vaginal area. L. S. then managed to kick Carswell in the groin, causing him to grab himself and fall to the ground. She then ran away. As she was running, Cars-well told her that, if she said anything, he would break her neck and burn her house down.

L. S. went on to her grandmother’s house, where Walker was visiting her mother. L. S. did not mention the incident that day, because of fear. The next day, while L. S. was at the doorstep of Walker and her home, Carswell threw an iron pipe which struck L. S. in the ankle and caused swelling. Carswell said, “I told you I was going to get you.”

L. S. then told her mother of the-previous day’s incident and the pipe throwing, and authorities were called. The place where the incident occurred on December 12, according to Walker, was within walking distance of her home in Wilkinson County, “not even a half a mile” away.

On December 14, Carswell made a statement to Georgia Bureau [518]*518of Investigation Agent Durham in which he acknowledged that, on December 12 around 6:30 p.m., he was walking on Pine Street in Danville when he saw L. S. He bumped into her, and she fell to the ground. He then knelt and was pulling on her shirt when he asked her, “what are you going to do[?]” Carswell stated that, when a black person asks a black person this, it means are you going to have sex. Carswell said L. S. declined and walked away. The next day, Carswell said he was walking across the backyard of an aunt of L. S. when he saw L. S. again. He had a 12-inch object in his hand which he thought was a stick but later learned was a pipe. He told L. S. if she told anyone, he would hurt her, and she would be in ashes. He acknowledged throwing the object at L. S.’ feet. At trial, venue is a jurisdictional fact which the State must prove to the jury beyond a reasonable doubt. It is a question to be decided by the jury whose decision will not be set aside if there is any evidence to support it. Cox v. State, 241 Ga. App. 388, 391 (4) (526 SE2d 884) (1999); Weidmann v. State, 222 Ga. App. 796 (1) (476 SE2d 18) (1996) (physical precedent only). As provided in OCGA § 17-2-2 (b), “[i]f a crime is committed on, or immediately adjacent to, the boundary line between two counties, the crime shall be considered as having been committed in either county.” (Emphasis supplied.)

Here, as to the four crimes alleged to have been committed by Carswell on December 12, there was sufficient circumstantial and direct evidence, as set out above, from which the jury could have concluded that the acts occurred in Twiggs County. Therefore, the evidence of venue on the first four counts was sufficient, and denial of the motion for directed verdict on that ground was not error. Weidmann, supra; Pippins v. State, 204 Ga. App. 318, 320 (4) (419 SE2d 28) (1992).

On the assault with a deadly weapon charge on December 13, the evidence is less clear. Nonetheless, it shows that L. S. was standing on the doorstep of her home in Wilkinson County within walking distance of Twiggs County when Carswell, walking through a nearby backyard, threw the pipe at her. This evidence is sufficient to trigger the provisions of OCGA § 17-2-2 (b) and was legally sufficient to prove venue in either Wilkinson or Twiggs County. Compare In the Interest of N. T. S., 242 Ga. App. 109, 111 (2) (528 SE2d 876) (2000) with Sypho v. State, 175 Ga. App. 833 (1) (334 SE2d 878) (1985).

The maps introduced by Carswell during the motion for new trial hearing do not require a different result but, instead, show the efficacy of OCGA § 17-2-2 (b) in such a case.

2. Carswell’s second enumeration is that the four December 12 crimes all merged as a matter of law or fact. Below, however, the only argument made was that the attempted rape and child molestation charges merged as a matter of fact, and that is all we consider.

[519]*519Count 3 charged that Carswell committed child molestation by “fondl[ing] the genitals of [L. S.], a child. . . .” Count 4 charged that Carswell attempted to rape L. S., in that he “knowingly and intentionally [did] perform acts which constituted a substantial step toward the commission of said crime, to wit: [he] did pull [L. S.] into some bushes, try to take her shirt off, and did fondle the genitals of [L. S.]. . . .”

We agree that, as the crimes were alleged, while Carswell could be prosecuted for both child molestation and attempt to commit rape, the trial court erred in not merging the child molestation conviction into the attempt to commit rape conviction for sentencing purposes. Caldwell v. State, 263 Ga. 560, 562 (2) (436 SE2d 488) (1993); Wofford v. State, 226 Ga. App. 487, 488 (1) (486 SE2d 697) (1997); Lewis v. State, 205 Ga. App. 29, 30 (2) (421 SE2d 339) (1992).

3. In his third enumeration, Carswell contends the trial court erred in allowing the State to refer to Carswell’s admissions in its opening statement and in allowing into evidence the alleged admissions without a Jackson v. Denno2 hearing.

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Related

Ledford v. State
545 S.E.2d 396 (Court of Appeals of Georgia, 2001)
Moore v. State
539 S.E.2d 851 (Court of Appeals of Georgia, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
534 S.E.2d 568, 244 Ga. App. 516, 2000 Fulton County D. Rep. 2379, 2000 Ga. App. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carswell-v-state-gactapp-2000.