Day v. State

728 S.E.2d 337, 315 Ga. App. 824, 2012 Fulton County D. Rep. 1687, 2012 WL 1630978, 2012 Ga. App. LEXIS 449
CourtCourt of Appeals of Georgia
DecidedMay 10, 2012
DocketA12A0059
StatusPublished

This text of 728 S.E.2d 337 (Day 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
Day v. State, 728 S.E.2d 337, 315 Ga. App. 824, 2012 Fulton County D. Rep. 1687, 2012 WL 1630978, 2012 Ga. App. LEXIS 449 (Ga. Ct. App. 2012).

Opinion

BARNES, Presiding Judge.

Brian Dale Day was convicted of two counts of aggravated assault, kidnapping, aggravated sodomy, three counts of burglary, [825]*825stalking, aggravated stalking, two counts of possession of a knife during the commission of a crime, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He appeals, contending that the trial court erred in admitting similar transaction evidence; that the evidence of kidnapping was insufficient; and that his sentence on one of the firearms charges exceeds the statutory limit. For the reasons that follow, we affirm.

We review the evidence in the light most favorable to the jury’s verdict. Lytle v. State, 290 Ga. 177 (1) (718 SE2d 296) (2011). So viewed, the evidence showed that Day, the victim, and the victim’s children were living together, but the victim moved out of Day’s house on August 6, 2006, after she awoke on the sofa three times to find him standing over her and masturbating while watching a pornographic video on his bedroom television. The victim got up and went into her daughter’s bedroom, where she blocked the door with furniture, and she and her children moved out the next morning. While the victim was working that night, she took the trash out to the isolated trash bin behind the store early, and when she went outside to smoke a cigarette at her usual garbage disposal time of 3:00 a.m., she saw Day lurking behind the building, so she ran inside and called her parents.

The next morning, the victim spoke to Day, who denied being at the store and said he was on his way to work. The victim and her mother went to Day’s house a few hours later to retrieve her belongings, thinking he would be at work. His truck was not there, but after five minutes he came out of a back bathroom and announced his presence. The victim was frightened of him and left with her mother after telling Day he had better not been masturbating in her daughter’s presence. She later retrieved her things with help from co-workers.

Day continued to call the victim’s cell phone, but she did not answer. On September 5, 2006, the victim was asleep at her mother’s house when she awoke to find Day “standing over” her with “his penis in one hand and knife in the other hand,” masturbating. The victim sat up and talked Day into going to the kitchen with her for coffee. Day dropped the knife to pull up his pants, and the victim called 911 when he was not looking. She asked him to leave, but he would not do so. When a deputy sheriff drove up, Day ran away, and the deputy retrieved the knife, which had an eight-inch blade, from the bedroom floor by the bed. While en route to the scene, a sergeant saw what he later identified as Day’s truck parked a quarter of a mile from the victim’s house.

Day was arrested the next day, September 6, 2006, and released on bond the day after that. The victim immediately obtained a temporary family violence protective order against him, and then after Day was served with the petition and the court held a hearing [826]*826at which he did not appear, the victim obtained a one-year family violence protective order against him. Day was indicted on October 3, 2006, for aggravated assault, burglary, two counts of possession of a knife during the commission of a crime, peeping tom, and stalking. The victim subsequently reported on October 24, 2006 that someone had broken into her house, pulled her window air conditioning unit out and put it in backward, but the investigating deputies were unable to obtain usable fingerprints.

Finally, on the morning of November 8, 2006, after her children left for school and her parents were at work, the victim walked out and locked her back door, intending to go to her job site until she attended a later appointment because she “didn’t feel comfortable” being there alone. She began to walk down the steps to her car when she saw Day squatting down by the stairs, holding a handgun. She began crying, and Day forced her into the house as she begged him not to hurt her. While pointing the gun at the victim, Day forced her to disrobe, placed a vibrator inside her, and put his penis in her mouth until he ejaculated in her mouth and hair. Some of his semen also spilled onto the bathroom rug, and he grabbed the rug and directed the victim to drive him to his truck. As they drove to a nearby dirt road, Day held the gun on the victim and threatened to kill her if she went to the police. He got out of her car with the rug and the vibrator, and the victim drove to the sheriff’s office to report the crimes.

A nurse swabbed the victim’s mouth and cut a swatch of her hair to send to the GBI laboratory for testing. A forensic biologist testified that the DNA profile obtained from the victim’s hair matched Day’s profile. Investigators found the victim’s rug in the woods and tire tracks off the dirt road about half a mile from the victim’s house.

The State introduced evidence of two similar transactions, both from ex-wives of Day. One ex-wife, who had married Day when she was sixteen and divorced him about four years later in 1993, testified that Day forced her to have sex with him while they were married. In 1992, after they separated, she stopped to help him when she saw him standing by his apparently broken-down truck on a road she traveled regularly. He pulled a knife on her, dragged her into the woods, and raped her. An investigator with the sheriff’s department recovered a knife in the location the ex-wife showed him. Day was arrested and gave a statement admitting he “was in the wrong” and asking his then-wife to forgive him. She later dropped the charges because, she explained, she had loved him and thought he would change, but left for good after he pulled a knife on her again. After she left, Day broke into the apartment she shared with her sister and raped her at [827]*827knifepoint. She obtained a protective order, but in 1993 Day subsequently accosted her with a knife in her driveway, an attack which resulted in convictions for aggravated assault and aggravated stalking.

A second ex-wife testified that before they were married in 2000, Day put a knife to her throat and forced her to have sexual intercourse, but she did not report it because Day was seeing a counselor and she “thought it was something that could be fixed.” During her two-year marriage to Day, he repeatedly forced her to perform oral sex and have intercourse with him, after which he would cry and apologize. After she made him move out, he returned and forced himself on her while her six-year-old son was “right outside” the door. She reported the assault to police, but did not prosecute it because she “didn’t want to have to be judged and looked down on.”

1. Day contends that the trial court erred in admitting the similar transaction evidence from his two ex-wives, which he argues was not offered for a proper purpose and was more prejudicial than probative. Day argues that the probative value of his ex-wives’ testimony about his sexual assaults using a knife was “marginal” and outweighed by its prejudicial impact because the victims’ credibility was questionable. Day also argues that the probative value of his first ex-wife’s testimony was limited because the transactions occurred more than a decade earlier, because she never “pressed charges,” and because he was never tried or convicted of any offenses against her.

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Bluebook (online)
728 S.E.2d 337, 315 Ga. App. 824, 2012 Fulton County D. Rep. 1687, 2012 WL 1630978, 2012 Ga. App. LEXIS 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-state-gactapp-2012.