Holsey v. State

729 S.E.2d 465, 316 Ga. App. 801, 2012 Fulton County D. Rep. 2056, 2012 WL 2345360, 2012 Ga. App. LEXIS 550
CourtCourt of Appeals of Georgia
DecidedJune 21, 2012
DocketA12A0515
StatusPublished
Cited by6 cases

This text of 729 S.E.2d 465 (Holsey 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
Holsey v. State, 729 S.E.2d 465, 316 Ga. App. 801, 2012 Fulton County D. Rep. 2056, 2012 WL 2345360, 2012 Ga. App. LEXIS 550 (Ga. Ct. App. 2012).

Opinion

DOYLE, Presiding Judge.

Rodney Calvindore Holsey was convicted of making a terroristic threat, 1 simple battery,2 and family violence battery.3 Holsey filed a motion for new trial, which the trial court denied. He appeals, challenging the sufficiency of the evidence as to the terroristic threat conviction. Holsey also argues that the trial court erred during sentencing and by failing to give curative instructions after improper remarks by the prosecutor during closing argument. For the reasons that follow, we affirm.

When an appellate court reviews the sufficiency of the evidence,

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. This familiar standard [802]*802gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.4

So viewed, the record shows that on February 14, 2009, Bridgett Holsey (Holsey’s wife), Gretel Pittman (Bridgett’s sister), and Kimberly Bell went to a bar in Albany. Holsey arrived some time later, approached the women, and grabbed Bridgett by her hair. Then, outside the club, Holsey hit Bridgett in the face, causing her to fall down. Pittman stood between Holsey and Bridgett in an effort to stop Holsey from hitting her again.

Pittman then called 911, and Corporal Rufus Reed responded to the scene. Pittman told Corporal Reed that as Holsey attacked Bridgett, he told Bridgett “that he would kill her and kill [Pittman] too while [Pittman] was on top of her sister trying to keep him from hitting [Bridgett] again.” Bell told the officer that Holsey hit Bridgett in the face and that Holsey threatened to kill Bridgett and Pittman. Corporal Reed documented Pittman and Bell’s verbal versions of the events in written statements. Later that night at the hospital, where Bridgett was receiving treatment for her injuries, Pittman and Bell reiterated their accusations that Holsey threatened to kill Bridgett and Pittman. Bridgett also told Corporal Reed that Holsey pulled her hair, punched her, and threatened to kill her.

Holsey was arrested and charged with simple battery, family violence battery, and two counts of making terroristic threats (one against Pittman and one against Bridgett). Pittman later contacted the police and signed paperwork stating that she no longer wished for Holsey to be prosecuted, explaining that Holsey and Bridgett had reconciled. Bridgett consulted with an attorney and signed an affidavit admitting that Holsey pulled her hair and hit her, but denying that he threatened Pittman; Bridgett gave the affidavit to the police and asked them to drop the charges against Holsey. Bridgett, accompanied by Bell, subsequently told prosecutors that she and Holsey “worked out [their] problems” and that she did not want Holsey [803]*803prosecuted, and she asked whether she would be required to testify against him.

At trial, Bridgett testified that at the club Holsey “tugged” her hair “to get [her] attention” and slapped her, causing her to fall down because she was “so drunk”; Bridgett denied telling police that Holsey threatened anyone. Bell testified that she saw Holsey hit Bridgett, but did not recall Holsey saying anything, explaining that, there “was a lot of people talking, so I don’t know who said what. We was all drinking.” Bell also stated that she did not recall telling police that she heard Holsey threaten to kill Bridgett and Pittman. Pittman testified that Holsey pulled Bridgett’s hair and hit Bridgett, and he threatened to kill Pittman.

Corporal Reed testified about what the three woman told him about the incident, and the State introduced a copy of the 911 call, a photograph of the injuries to Bridgett’s face, and copies of Bell’s and Pittman’s statements.

The jury found Holsey not guilty of making a terroristic threat against Bridgett (Count 1), but guilty of simple battery (Count 3), family violence battery (Count 4), and making a terroristic threat against Pittman (Count 2). During sentencing, the State introduced certified copies of Holsey’s nine prior felony convictions, and the trial court sentenced him to five years in prison on Count 2, to be served consecutively with the twelve-month concurrent sentences on Counts 3 and 4. This appeal followed.

1. Holsey contends that the evidence was insufficient to support his conviction for making a terroristic threat against Pittman, arguing that the State’s evidence on this charge consisted entirely of out-of-court statements made by Bell and Pittman.

This assertion is belied by the record, which indicates that Pittman admitted signing a statement that Holsey threatened to kill her, and she responded affirmatively when the State asked her on the witness stand whether “that’s what happened.” Pittman’s testimony alone is sufficient to sustain the jury’s verdict.5 6 Even without this testimony, however, the witnesses’ statements to Corporal Reed regarding Holsey’s threat to kill Pittman are sufficient to support the verdict. “[E]ven though . . . witnesses] may recant on the stand, [their] prior inconsistent statements constitute substantive evidence on which the [jury] may rely.”6 “Under circumstances such as this — [804]*804where there are multiple versions of events or . . . witness [es] change[ ] [their] testimony — the jury is responsible for ascertaining which version is true.”7 “The fact that at trial the [witnesses] disavowed [their] prior statements went to the weight and credibility that the jury wished to assign to the State’s otherwise sufficient evidence and presents no basis for reversal.”8 Accordingly, the evidence authorized the jury to conclude that Holsey made a terroristic threat to Pittman.9

2. Holsey also argues that the trial court erred by failing to give curative instructions after he objected when, during closing argument, the prosecutor improperly: (1) argued that the jury should take the case seriously because a member of the jury panel — the person was not selected to be on the jury — had a daughter murdered by her boyfriend; and (2) referred to the “domestic violence cycle.”10 Holsey argues that the foregoing arguments were outside the bounds of the evidence and prejudicial.

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.11

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Bluebook (online)
729 S.E.2d 465, 316 Ga. App. 801, 2012 Fulton County D. Rep. 2056, 2012 WL 2345360, 2012 Ga. App. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holsey-v-state-gactapp-2012.