SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY , JJ.
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. http://www.gaappeals.us/rules/
July 9, 2014
In the Court of Appeals of Georgia A14A0270. TAYLOR v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Montrellus Lamar Taylor was convicted of kidnapping and
aggravated sodomy. He appeals, arguing that the state failed to prove venue for the
aggravated sodomy; that the trial court committed plain error when it instructed the
jury on venue; and that the trial court improperly admitted evidence that Taylor
previously had broken into the victim’s home. We find that the state adequately
proved venue and that the trial court’s instruction on venue was correct. We also find
that the trial court did not abuse his discretion in admitting the prior difficulties
evidence. We therefore affirm Taylor’s convictions.
Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App.
682, 683 (1) (746 SE2d 162) (2013), the evidence shows that the victim dated Taylor, off and on, for a number of years, and they have two children together. Their romantic
relationship ended in 2005.
On December 22, 2007, Taylor called the victim and asked her to meet him at
a storage unit in Dooly County because he had money for her and bicycles for their
children. When the victim arrived at the storage unit, Taylor called her over to his car
so she could look at presents in his open trunk. When she walked over, Taylor put a
gun to her head and told her to shut up and to get in the trunk. The victim struggled
with Taylor, but he choked her until she fell to the ground. He picked her up, threw
her into the trunk, and shut the compartment’s lid. The victim called her boyfriend on
her cell phone and had time to say that Taylor had a gun and had her in the trunk
before Taylor, who had been searching the victim’s car for her cell phone, opened the
trunk and took the phone from her. Taylor then drove off with the victim in the trunk.
She attempted to escape and was able to open the trunk, but Taylor was driving so
quickly that she could not jump out.
When Taylor realized the victim had opened the trunk, he stopped the car and
forced her into the back seat. The victim did not know where they were; all she saw
was trees. Taylor drove for another five to ten minutes before stopping. The victim
still had no idea where they were, but they remained in a wooded area. When he
2 stopped the car, Taylor blindfolded and handcuffed the victim and forced her to
perform oral sex on him. Afterwards, Taylor removed the victim’s blindfold and
handcuffs, and they drove away. The victim was crying and hyperventilating.
When the victim’s boyfriend received her call, he and his friends, who were
also friends of Taylor and the victim, drove to the storage facility. When they arrived,
they saw the victim’s car but not the victim. One of the friends called the police. The
boyfriend and his friends began driving around, looking for the victim. Eventually,
some of the friends encountered Taylor’s car in Dooly County. Taylor stopped, and
the friends rescued the victim from Taylor’s car.
When the victim was interviewed by law enforcement officers later that day,
she was “visibly shaken,” very upset, crying, “visibly distraught,” and “huddled in on
herself.” She still had on her head the mask which Taylor had used to blindfold her.
1. Venue.
Taylor argues that the evidence was insufficient to prove venue of the
aggravated sodomy. He acknowledges that under OCGA § 17-2-2 (h), if “it cannot
be determined in what county a crime was committed, it shall be considered to have
been committed in any county in which the evidence shows beyond a reasonable
doubt that it might have been committed.” But, he argues, that statute does not apply
3 here because the state could have determined the county in which the crime was
committed by having the victim retrace the route from the point where she was
rescued. A jury’s decision on venue must be affirmed if supported by any evidence.
Because the jury could have concluded from the evidence that the location of the
crime could not be determined, we reject Taylor’s argument.
One purpose of OCGA § 17-2-2 (h) “is to provide for establishment of venue
in situations in which there is . . . some doubt as to which county was the scene of the
crime[.]” Bundren v. State, 247 Ga. 180 (1) (274 SE2d 455) (1981) (discussing Code
Ann. § 26-302 (h), the former version of the statute). “OCGA § 17-2-2 (h) does not
violate the mandate of Art. VI, Sec. II, Par. VI, Ga. Const. 1983 [that criminal cases
be tried in the county where the crime was committed]. It merely provides a
mechanism by which that mandate can be carried out when the place in which the
crime is committed cannot be determined with certainty.” Hinton v. State, 280 Ga.
811, 815 (2) (631 SE2d 365) (2006) (punctuation omitted).
In this case, the victim testified that she was abudcted in Dooly County. She
was in the car’s trunk for part of the time that Taylor drove her to the location of the
aggravated sodomy. In response to the state’s question, the victim testified that she
had “no idea” where she was at the time of the sodomy. She was eventually rescued
4 from Taylor’s car in Dooly County. This evidence supports the conclusion that the
county in which the crime occurred could not be determined with certainty. The state
therefore was entitled to rely on OCGA § 17-2-2 (h) to prove venue. Compare
Stockard v. State, __ Ga. App. __, __ (2) (755 SE2d 548) (2014) (“[Because the
[s]tate made no attempt to elicit evidence as to where the crime occurred [through the
questioning of witnesses], we are unable to say that the county in which the crime
committed ‘cannot be determined’” so as to allow state to use OCGA § 17-2-2 (h) to
prove venue.) (footnote and emphasis omitted).
This case is distinguishable from the cases Taylor cites. In Rogers v. State, 298
Ga. App. 895, 898-899 (3) (c) (681 SE2d 693) (2009), law enforcement officers knew
where the offenses were committed. In Thompson v. Brown, 288 Ga. 855, 856 (708
SE2d 270) (2011), the state readily could have determined venue “because the
informant would have known the general locations where the two [drug] sales
occurred and because the [law enforcement] agents knew the exact route that the
informant and [the defendant] traveled.”
“[V]enue is a question for the jury, and its decision will not be set aside if there
is any evidence to support it.” Leftwich v. State, 299 Ga. App. 392, 399 (4) (682 SE2d
614) (2009) (citation and punctuation omitted; emphasis added). There was evidence
5 to support the conclusion that the county in which the crime was committed could not
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SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY , JJ.
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. http://www.gaappeals.us/rules/
July 9, 2014
In the Court of Appeals of Georgia A14A0270. TAYLOR v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Montrellus Lamar Taylor was convicted of kidnapping and
aggravated sodomy. He appeals, arguing that the state failed to prove venue for the
aggravated sodomy; that the trial court committed plain error when it instructed the
jury on venue; and that the trial court improperly admitted evidence that Taylor
previously had broken into the victim’s home. We find that the state adequately
proved venue and that the trial court’s instruction on venue was correct. We also find
that the trial court did not abuse his discretion in admitting the prior difficulties
evidence. We therefore affirm Taylor’s convictions.
Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App.
682, 683 (1) (746 SE2d 162) (2013), the evidence shows that the victim dated Taylor, off and on, for a number of years, and they have two children together. Their romantic
relationship ended in 2005.
On December 22, 2007, Taylor called the victim and asked her to meet him at
a storage unit in Dooly County because he had money for her and bicycles for their
children. When the victim arrived at the storage unit, Taylor called her over to his car
so she could look at presents in his open trunk. When she walked over, Taylor put a
gun to her head and told her to shut up and to get in the trunk. The victim struggled
with Taylor, but he choked her until she fell to the ground. He picked her up, threw
her into the trunk, and shut the compartment’s lid. The victim called her boyfriend on
her cell phone and had time to say that Taylor had a gun and had her in the trunk
before Taylor, who had been searching the victim’s car for her cell phone, opened the
trunk and took the phone from her. Taylor then drove off with the victim in the trunk.
She attempted to escape and was able to open the trunk, but Taylor was driving so
quickly that she could not jump out.
When Taylor realized the victim had opened the trunk, he stopped the car and
forced her into the back seat. The victim did not know where they were; all she saw
was trees. Taylor drove for another five to ten minutes before stopping. The victim
still had no idea where they were, but they remained in a wooded area. When he
2 stopped the car, Taylor blindfolded and handcuffed the victim and forced her to
perform oral sex on him. Afterwards, Taylor removed the victim’s blindfold and
handcuffs, and they drove away. The victim was crying and hyperventilating.
When the victim’s boyfriend received her call, he and his friends, who were
also friends of Taylor and the victim, drove to the storage facility. When they arrived,
they saw the victim’s car but not the victim. One of the friends called the police. The
boyfriend and his friends began driving around, looking for the victim. Eventually,
some of the friends encountered Taylor’s car in Dooly County. Taylor stopped, and
the friends rescued the victim from Taylor’s car.
When the victim was interviewed by law enforcement officers later that day,
she was “visibly shaken,” very upset, crying, “visibly distraught,” and “huddled in on
herself.” She still had on her head the mask which Taylor had used to blindfold her.
1. Venue.
Taylor argues that the evidence was insufficient to prove venue of the
aggravated sodomy. He acknowledges that under OCGA § 17-2-2 (h), if “it cannot
be determined in what county a crime was committed, it shall be considered to have
been committed in any county in which the evidence shows beyond a reasonable
doubt that it might have been committed.” But, he argues, that statute does not apply
3 here because the state could have determined the county in which the crime was
committed by having the victim retrace the route from the point where she was
rescued. A jury’s decision on venue must be affirmed if supported by any evidence.
Because the jury could have concluded from the evidence that the location of the
crime could not be determined, we reject Taylor’s argument.
One purpose of OCGA § 17-2-2 (h) “is to provide for establishment of venue
in situations in which there is . . . some doubt as to which county was the scene of the
crime[.]” Bundren v. State, 247 Ga. 180 (1) (274 SE2d 455) (1981) (discussing Code
Ann. § 26-302 (h), the former version of the statute). “OCGA § 17-2-2 (h) does not
violate the mandate of Art. VI, Sec. II, Par. VI, Ga. Const. 1983 [that criminal cases
be tried in the county where the crime was committed]. It merely provides a
mechanism by which that mandate can be carried out when the place in which the
crime is committed cannot be determined with certainty.” Hinton v. State, 280 Ga.
811, 815 (2) (631 SE2d 365) (2006) (punctuation omitted).
In this case, the victim testified that she was abudcted in Dooly County. She
was in the car’s trunk for part of the time that Taylor drove her to the location of the
aggravated sodomy. In response to the state’s question, the victim testified that she
had “no idea” where she was at the time of the sodomy. She was eventually rescued
4 from Taylor’s car in Dooly County. This evidence supports the conclusion that the
county in which the crime occurred could not be determined with certainty. The state
therefore was entitled to rely on OCGA § 17-2-2 (h) to prove venue. Compare
Stockard v. State, __ Ga. App. __, __ (2) (755 SE2d 548) (2014) (“[Because the
[s]tate made no attempt to elicit evidence as to where the crime occurred [through the
questioning of witnesses], we are unable to say that the county in which the crime
committed ‘cannot be determined’” so as to allow state to use OCGA § 17-2-2 (h) to
prove venue.) (footnote and emphasis omitted).
This case is distinguishable from the cases Taylor cites. In Rogers v. State, 298
Ga. App. 895, 898-899 (3) (c) (681 SE2d 693) (2009), law enforcement officers knew
where the offenses were committed. In Thompson v. Brown, 288 Ga. 855, 856 (708
SE2d 270) (2011), the state readily could have determined venue “because the
informant would have known the general locations where the two [drug] sales
occurred and because the [law enforcement] agents knew the exact route that the
informant and [the defendant] traveled.”
“[V]enue is a question for the jury, and its decision will not be set aside if there
is any evidence to support it.” Leftwich v. State, 299 Ga. App. 392, 399 (4) (682 SE2d
614) (2009) (citation and punctuation omitted; emphasis added). There was evidence
5 to support the conclusion that the county in which the crime was committed could not
be determined – the victim’s testimony that she did not know where Taylor had
sodomized her. There was evidence to support the conclusion that the crime might
have been committed in Dooly County – evidence that the victim was abducted and
rescued there. “Even though the victim was unable to testify with precision in which
county the attack took place, she was not required to do so to establish the proper
venue. Her testimony established that she was abducted from and returned to [Dooly]
County. . . . [T]his was sufficient to establish [Dooly] County as the proper
venue.”Arnold v. State, 284 Ga. App. 598, 600 (1) (645 SE2d 68) (2007).
2. Jury charge.
Taylor argues that it was plain error for the trial court to charge the jury on
OCGA § 17-2-2 (h). In order to show plain error in the giving of a jury instruction,
a defendant must show “that the . . . charge was erroneous, the error was obvious, the
. . . charge likely affected the outcome of the proceedings, and the error seriously
affected the fairness, integrity, or public reputation of the judicial proceedings.”
Johnson v. State, __ Ga. __, __ (2) (__ SE2d __) (Case No. S14A0367, decided June
16, 2014) (citation omitted). Given the evidence detailed above, the trial court did not
err, much less commit plain error, in charging the jury on this statute.
6 3. Evidence of prior difficulties.
Taylor argues that the trial court abused his discretion by admitting evidence
that he had broken into the victim’s house two years before this incident. He argues
that the trial court’s decision not to give a jury instruction on prior difficulites
amounted to a finding that the evidence did not meet the proper standard for prior
difficulties evidence. The record indicates, however, that the trial court did not give
the charge because the state withdrew it, not because the trial court concluded that the
evidence should not have been admitted.
Taylor also argues that the evidence was inadmissible, because it did not tend
to prove his motive or intent or the state of the relationship between him and the
victim, and because there was not a sufficient connection between the break in and
the kidnapping or aggravated sodomy. But evidence of a defendant’s prior acts
toward the victim, “be it a prior assault, a quarrel, or a threat, are evidence of the
relationship between the victim and the defendant and may show the defendant’s
motive, intent, and bent of mind in committing the act against the victim which
results in the charges for which the defendant is being prosecuted.” Thompson v.
State, 295 Ga. 96, 102 (3) (b) (__ SE2d __) (2014) (citation and punctuation
7 omitted).1 Moreover, prior difficulties “do not implicate independent acts or
occurrences, but are connected acts or occurrences arising from the relationship
between the same people[.] . . . Thus, the admissibility of evidence of prior
difficulties does not depend upon a showing of similarity to the crime for which the
accused is being tried.” Dixon v. State, 275 Ga. 232, 232-233 (2) (564 SE2d 198)
(2002) (citation and punctuation omitted). Taylor has not shown that the trial court
abused his discretion in admitting this evidence.
Judgment affirmed. Andrews, P. J., and Ray, J., concur.
1 This case, like Thompson, was tried under Georgia’s old Evidence Code. Under the new Evidence Code, which applies to trials beginning on or after January 1, 2013, the admissibility of this sort of “[e]vidence of other crimes, wrongs, or acts” is governed by OCGA § 24-4-404 (b).