Fulcher v. State

578 S.E.2d 264, 259 Ga. App. 648, 2003 Ga. App. LEXIS 223
CourtCourt of Appeals of Georgia
DecidedFebruary 13, 2003
DocketA02A2167
StatusPublished
Cited by6 cases

This text of 578 S.E.2d 264 (Fulcher 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
Fulcher v. State, 578 S.E.2d 264, 259 Ga. App. 648, 2003 Ga. App. LEXIS 223 (Ga. Ct. App. 2003).

Opinions

Adams, Judge.

Kevin Lee Fulcher was convicted of kidnapping with bodily injury, robbery, gang activity, and terroristic threats. He enumerates 14 errors.

Construed in favor of the verdict, the evidence shows that on February 27, 1997, the victim, who was of Korean and Native American descent, was walking alone along Lawrenceville Highway on his way to cash his paycheck when a car pulled over near him. Fulcher and two other men got out of the car, and Fulcher physically picked [649]*649up the victim and placed him in the front seat between the other two men. Fulcher sat behind the victim along with two young women, and he told the victim that they were going to have a “boot party.”

During the drive, the victim was searched and his check was taken. Throughout the drive, the victim was asked if he knew what a skinhead was, and he was threatened with being raped, beaten, sprayed with mace, forced to drink Drano, dragged behind the car, disemboweled, and killed. In addition to making several of the threats, Fulcher said, “We’re skinheads. We don’t like people with your color. White people rule. We’re white supremacists. We’re with an organization, and we go out and we’ll kill people like you. Just last week, we had done the same thing to a black guy.” Ultimately, the victim was taken to a field where he was kicked and beaten by all three men who were wearing combat boots at the time.

1. In two enumerations, Fulcher contends that, in denying his motion for new trial, the trial court erred in ruling against his claim that he received ineffective assistance of trial counsel prior to, during, and subsequent to trial. But Fulcher apparently chose not to have a hearing on his motion for new trial — there is no transcript, and therefore we must conclude that the trial court was authorized to find that Fulcher failed to show that he received ineffective assistance of counsel. Cf. Wade v. State, 274 Ga. 791, 793 (6) (560 SE2d 14) (2002). See also Green v. State, 274 Ga. 686, 689 (3) (558 SE2d 707) (2002).

Moreover, Fulcher only makes bare assertions with regard to the alleged deficient performance of his trial counsel prior to and during the trial, and yet he has not provided any citations to the record or transcript to support the assertions, he did not introduce any evidence in connection with his motion for new trial, and he has not shown how any of the alleged deficiencies prejudiced his defense. The burden of establishing a claim of ineffective assistance of counsel falls squarely on the appellant, and Fulcher has not carried that burden. See Smith v. State, 209 Ga. App. 540, 542 (3) (433 SE2d 694) (1993).

With regard to post-trial, Fulcher contends that his trial counsel failed to properly prosecute his appeal. This enumeration' is moot because Fulcher already received relief on these grounds when a court granted his petition for habeas corpus.

2. Fulcher did not receive an illegal or improper sentence for kidnapping with bodily injury. That crime carries the punishment of life imprisonment or death, and Fulcher received life. See OCGA § 16-5-40 (b). Reading OCGA § 17-10-6.1 in its entirety shows that subsection (b) does not, as Fulcher claims, reduce the applicable sentence to a minimum ten years with life being discretionary; rather it simply establishes a mandatory minimum sentence for certain serious vio[650]*650lent felonies, including kidnapping. This legislative intent is stated in the preamble to the original act. See Ga. L. 1994, p. 1959.

3. Fulcher challenges his conviction and sentence for robbery, terroristic threats, and gang activity for several reasons. We find no error.

The evidence was sufficient to convict Fulcher of robbery. He was more than merely present for the robbery: he abducted the victim; he agreed with everyone that they should cash the check; and he drove the car part of the time, including to a check cashing store. “While mere presence at the scene of a crime is not sufficient evidence to convict, criminal intent can be inferred from companionship, presence, and conduct before, during, and after an offense.” (Footnote omitted.) Cutkelvin v. State, 258 Ga. App. 691, 694 (1) (574 SE2d 883) (2002).

With regard to terroristic threats, we disagree that the acts alleged were necessarily included in the charge of kidnapping with bodily harm. The fact that Fulcher made terroristic threats during the kidnapping does not change the fact that the two crimes do not share the same essential elements. See OCGA § 16-1-6. Cf. Johnson v. State, 247 Ga. App. 157, 163 (12) (543 SE2d 439) (2000).

The evidence was sufficient to support the conviction for gang activity under the codification of OCGA § 16-15-1 et seq. applicable at the time, which defined “Pattern of criminal gang activity” as

the commission, attempted commission, or solicitation of two or more of the following offenses [including robbery and terroristic threats], provided at least one of those offenses occurred after July 1, 1992, the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions or by two. or more persons. . . .

(Emphasis supplied.) Ga. L. 1992, p. 3238, § 1. The evidence here showed that two or more persons engaged in robbery and terroristic threats against the victim after July 1, 1992, and that they belonged to an identified criminal street gang. The evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Green v. State, 266 Ga. 237 (466 SE2d 577) (1996), is not on point. The determinative issue in that case was that no competent evidence was introduced to show a pattern of criminal gang activity. Id. at 238-239 (2).

4. Fulcher contends the trial court erred by failing to excuse a juror who, one morning before trial, read a newspaper headline regarding the case. The jurors had been instructed not to read, listen to, or view any news report concerning the case.

[651]*651“When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the burden of establishing beyond a reasonable doubt that no harm occurred.” (Footnote omitted.) Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997). To upset a jury verdict, the misconduct must have been “so prejudicial that the verdict is deemed inherently lacking in due process. Furthermore, where the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.” (Punctuation and footnotes omitted.) Id. Finally, “fw]hen jurors have been exposed to inadmissible material, the trial court [has] discretion in passing on a motion for mistrial or in deciding whether to replace jurors with alternates.” (Citations omitted.) Guess v. State, 264 Ga. 335, 338 (6) (443 SE2d 477) (1994).

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Fulcher v. State
578 S.E.2d 264 (Court of Appeals of Georgia, 2003)

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578 S.E.2d 264, 259 Ga. App. 648, 2003 Ga. App. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulcher-v-state-gactapp-2003.