Tompkins v. State

595 S.E.2d 599, 265 Ga. App. 760
CourtCourt of Appeals of Georgia
DecidedJune 7, 2004
DocketA03A1714
StatusPublished
Cited by9 cases

This text of 595 S.E.2d 599 (Tompkins 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
Tompkins v. State, 595 S.E.2d 599, 265 Ga. App. 760 (Ga. Ct. App. 2004).

Opinions

Johnson, Presiding Judge.

Pursuant to a stipulated trial before a judge sitting without a jury, Steve Tompkins was convicted of two counts of child molestation. He appeals, arguing that the state failed to prove venue and that the judge should have ruled that the child molestation charges are barred by the statute of limitation. The argument concerning venue is without merit. But the trial court’s statute of limitation ruling was, in part, erroneous. We therefore vacate Tompkins’ convictions and remand the case for a new trial within the parameters set by this opinion.

On July 3, 2002, the Cobb County grand jury indicted Tompkins [761]*761for five sexual offenses against his stepdaughter: aggravated sexual battery, attempt to commit rape, and three counts of child molestation. Tompkins filed a speedy trial demand, and the case was called for trial on October 21, 2002. Tompkins’ attorney told the court that she was not ready for trial, offered to withdraw the speedy trial demand, and moved for a continuance. The court refused to continue the case, noting that Tompkins’ attorney had announced that she was ready for trial at previous calendar calls and by having filed the speedy trial demand.

The trial then commenced, but Tompkins’ attorney refused to participate, claiming that she could not provide effective assistance of counsel due to her lack of preparation. A jury was picked and the state presented its evidence, all without any participation by Tompkins or his attorney. The state’s first witness was Tompkins’ stepdaughter, who testified that the acts of molestation occurred at their home in Cobb County. The stepdaughter’s biological father and a detective also testified, after which the court ordered a recess.

When the trial resumed the following day, October 22, a new attorney appeared in court on behalf of both Tompkins and his original lawyer, who was facing contempt charges for refusing to participate in the trial. Tompkins and his original lawyer waived any conflict of interest in having the same attorney represent them. Tompkins’ new counsel then moved for a mistrial, waiving the speedy trial demand and waiving any future claims of double jeopardy. The trial court granted the motion for a mistrial.

On January 13, 2003, Tompkins was back in court, represented by his new counsel and another attorney. The trial court first heard Tompkins’ plea in bar, which asserted that the five-count indictment is barred by the statute of limitation. The court granted the plea as to the aggravated sexual battery and attempted rape charges, finding that they are barred by the statute of limitation. But the court denied the plea as to the three child molestation counts, and a stipulated bench trial on those charges was then held.

No witnesses testified at the bench trial. Rather, at the outset of the trial, one of Tompkins’ lawyers told the court that the defense would first stipulate to the facts proffered by the state, would next present a summary of its own evidence, and would then ask the court to render judgment based on the parties’ proffered evidence. The prosecutor then summarized the state’s case for the court, stating that the evidence would show that when the victim was 12 years old, she and her mother and sisters began living with Tompkins. When the victim was aged 13 to 15, Tompkins molested her at their home. On several occasions he touched her breasts and vagina with his hands, and once he touched her vaginal area with his penis.

One of Tompkins’ attorneys then made a proffer of the defense [762]*762case. The attorney stated that there is no physical evidence of molestation, that defense witnesses would show the victim is emotionally unstable and is motivated to lie, that witnesses would testify about Tompkins’ good character, and that Tompkins himself would emphatically deny ever molesting the girl. The attorney concluded by reiterating the defense position that the child molestation charges are barred by the statute of limitation.

The judge found Tompkins guilty on two of the child molestation counts and not guilty on the other count. Pursuant to a negotiated sentencing recommendation between the state and the defense, the court sentenced Tompkins to serve ten years on probation as a first offender. Tompkins appeals from his child molestation convictions.

1. Tompkins contends that the state did not prove venue because in its stipulated proffer of evidence at the bench trial the state never mentioned that the crimes occurred in Cobb County. While venue is an essential element of the crimes charged, parties may agree to stipulate to facts in a criminal case.1 This court has rejected attempts to appeal stipulated issues after bench trials.2

In Scott v. State,3 we held that the defendant could not challenge the sufficiency of the evidence on appeal because his stipulation at a bench trial led the state and the court to believe that the only disputed matter was if certain evidence should be suppressed.

It is obvious from a review of the record that the defense attorney led both the trial judge and the prosecuting attorney to think that the only issue contested by the defendant was whether the evidence, obtained by the search of defendant, should be suppressed. The defense attorney made it clear to both the prosecuting attorney and the trial judge that her main goal in defending this case was to preserve for appeal the denial of defendant’s motion to suppress. Defense counsel led the trial court to believe she conceded that the State had otherwise met its burden of proof. Defendant thus waived his right to challenge the sufficiency of the evidence of the elements of the crimes charged.4

The instant case differs slightly from Scott in that Tompkins did not file a motion to suppress and did not waive all challenges to the sufficiency of the evidence. But those differences are immaterial because Tompkins’ stipulation clearly led the trial court and the [763]*763state to believe that he was not challenging the sufficiency of the evidence as to venue.

It is apparent from a review of the record that Tompkins’ defense at the stipulated bench trial was twofold and in no way contested venue. His first and primary defense strategy was to have the trial court find that all the charges are barred by the statute of limitation. When the trial court ruled that the three child molestation counts of the indictment are not time-barred, Tompkins proceeded with his second defense strategy, which was to challenge the reliability of the victim’s accusation that he had molested her. Tompkins’ attorney did this during his proffer of the defense evidence by asserting Tompkins’ denial of the accusation, by attacking the victim’s credibility, and by citing evidence of Tompkins’ good character. But Tompkins and his attorneys never contested the issue of venue during the defense proffer, nor at any other point of the stipulated bench trial.

The record plainly reveals that the stipulation by Tompkins’ lawyers led the trial judge and the prosecutor to believe that the only contested issues were the timeliness of the charges and the believability of the victim’s claims of molestation, not whether venue was proper in Cobb County.5

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vincent Pelayo v. State
Court of Appeals of Georgia, 2024
Lyde v. State
716 S.E.2d 572 (Court of Appeals of Georgia, 2011)
State v. Godfrey
709 S.E.2d 572 (Court of Appeals of Georgia, 2011)
Wilder v. State
698 S.E.2d 374 (Court of Appeals of Georgia, 2010)
Stroud v. State
644 S.E.2d 467 (Court of Appeals of Georgia, 2007)
Berman v. State
632 S.E.2d 757 (Court of Appeals of Georgia, 2006)
Tompkins v. State
610 S.E.2d 646 (Court of Appeals of Georgia, 2005)
Tompkins v. State
607 S.E.2d 891 (Supreme Court of Georgia, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
595 S.E.2d 599, 265 Ga. App. 760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tompkins-v-state-gactapp-2004.