Venue. Fulton Superior Court. Before Judge Manis, Senior Judge.
Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellant.
Lee W. Fitzpatrick, for appellee.
ANDREWS, Presiding Judge. McFadden, J., concurs. Ray, J., concurs in judgment only.
Andrews, Presiding Judge.
Following a jury trial, David Robertson was convicted of two counts of rape and two counts of aggravated sodomy. Robertson filed a motion for new trial, which the trial court granted, finding that the State failed to prove venue in Fulton County beyond a reasonable doubt. The State now appeals, arguing that it presented sufficient evidence as to venue. For the reasons that follow, we affirm.
We first address the standard of review. OCGA § 5-5-50 states: " The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." While the statute may provide the standard of review in both civil and criminal cases, it " is not applicable in all situations where a trial court has entered a first [329 Ga.App. 183] grant of a motion for new trial." O'Neal v. State, 285 Ga. 361, 362-363 (677 S.E.2d 90) (2009). For example, we review de novo a trial court's first grant of a new trial on a special ground involving a question of law. Id. at 363; see also State v. James, 292 Ga. 440, 441 (1) (738 S.E.2d 601) (2013).
Robertson's motion for new trial, as amended, asserted the general grounds, see OCGA § § 5-5-20 and 5-5-21, discussed the scope of a trial court's discretion to grant a new trial under those statutes, and argued that the verdict was contrary to the law and
evidence because the State failed to prove venue beyond a reasonable doubt. OCGA § § 5-5-20 and 5-5-21 " afford the trial court broad discretion to sit as a thirteenth juror and weigh the evidence on a motion for new trial alleging [the] general grounds." (Citation and punctuation omitted.) Walker v. State, 292 Ga. 262, 264 (2) (737 S.E.2d 311) (2013). At the hearing on the motion for new trial, however, Robertson's counsel, rather than discussing the trial court's discretion to grant a new trial on the general grounds, argued that the evidence at trial was legally insufficient to establish venue in Fulton County. The trial court's order on the motion for new trial contains no indication that it exercised any discretion. Rather, the trial court concluded as a matter of law that the circumstantial evidence upon which the State relied to prove venue was legally insufficient. The trial court thus granted a new trial on the general grounds, but it did so based on a purely legal determination. See Jones v. State, 272 Ga. 900, 901-902 (2) (537 S.E.2d 80) (2000) (" [T]he State's failure to prove venue beyond a reasonable doubt renders the verdict contrary to law [and] without a sufficient evidentiary basis." ) (punctuation and footnote omitted). Under these circumstances, we conclude that, consistent with our general practice in reviewing questions of law, a de novo standard of review should be applied. See, e.g., Bell v. State, 323 Ga.App. 751 (748 S.E.2d 114) (2013).
The evidence at trial showed that on April 20, 2005, Robertson drove a co-worker home after work to 222 Cole Street, Marietta in Cobb County. When Robertson and his co-worker arrived, some girls were sitting on the front porch, including the 16-year-old victim, who lived there, and the victim's sister. Later in the evening, the victim's sister asked Robertson to drive her to her apartment at 740 Mozley Drive, Smyrna in Cobb County. Robertson drove the victim's sister and her sister's boyfriend to that address, and the victim rode with them.
The victim testified that after dropping off her sister and her sister's boyfriend, Robertson told her that he wanted to take her to " see the lights of Atlanta." She stated that she could not remember whether they drove in the direction of Atlanta or how long they were [329 Ga.App. 184] in the car but testified that it was " for a while." They stopped when they " got to the park." The victim recalled that they " got to a building and ended up parking." The victim testified that she ended up lying on some sheets and clothes Robertson laid on the ground and that Robertson raped her. The victim testified that they got back in the car and that she thought they went back to Marietta. They stopped on the way, and the victim did not know where they were. The victim stated that they got out of the car and that Robertson made her bend over the hood and stuck his penis in her vagina. He also made her put his penis in her mouth. The victim stated that she thought Robertson managed to put his penis in her vagina again after they got back in the car. Then Robertson took her home. The victim disclosed what had happened to one of the adults in her Cole Street home, who took the victim to the hospital. The victim admitted on cross-examination that she was not sure that she was in Piedmont Park. When asked, " isn't it true that you simply told one of the district attorneys or a police officer that you were in a park and that it was the district attorney or the police officer that suggested that it was Piedmont Park," the victim replied, " yes."
A City of Marietta police officer who interviewed the victim at the hospital testified that she was able to determine where the crime occurred because the victim was describing landmarks where she and Robertson were driving, such as Turner Field. The officer testified that the victim told her that Robertson pulled into a park not far from Turner Field. According to the officer, the victim also said something about the park being under construction and having big dirt piles. The officer testified that she called Fulton County to find out if Piedmont Park was in " their jurisdiction" and was informed that it was and that Fulton County would send an officer to the hospital. She testified on cross-examination that when she called Fulton County, she was told that there were big dirt piles close to Piedmont ...