Aggravated assault, etc. Forsyth Superior Court. Before Judge Bagley.
Sharon L. Hopkins, for appellant.
Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, for appellee.
Following a jury trial, Michael Sullivan was convicted of one count of aggravated assault, one count of criminal damage to property in the first degree, and one count of criminal damage to property in the second degree. He appeals following the denial of his motion for new trial, contending that the trial court erred in failing to merge the two counts of criminal damage to property and that his trial counsel was ineffective for failing to object during the State's closing argument. Finding no error, we affirm.
Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). So viewed, the record shows that [331 Ga.App. 593] in 2008, Sullivan was in the process of a divorce, and his wife hired a private investigative firm to conduct surveillance on him and his paramour. Janette Gagnon worked as a private investigator for the firm and was assigned to conduct surveillance of Sullivan while his wife was out of town. On the morning of September 6, 2008, she positioned herself at the corner of Bethel Road and Brown's Bridge Road in Gainesville, Georgia to monitor certain vehicles coming or going from Sullivan's nearby house. At approximately 3:00 p.m., she saw one of the vehicles turn onto Bethel Road, and she proceeded to follow the vehicle down Bethel Road and onto Lake Hollow, the street where Sullivan's house was located. She passed Sullivan's house but lost track of the vehicle and decided to return to her
previous post. As she was driving back to Bethel Road, a large, four-wheel all-terrain vehicle (" ATV" ) came up out of the woods and drove right up to the rear bumper of her car. She saw the driver standing up over the handlebars of the ATV and recognized him as Sullivan. Realizing that Sullivan had caught on to the surveillance, Gagnon called her partner, Ben Pierce, who had also set up surveillance nearby, to let him know.
As soon as she hung up the phone, Sullivan took off on his ATV through the woods, and Gagnon pulled into the nearby driveway of an abandoned barn to call Pierce again to determine what they should do next. Within seconds, Sullivan came " flying across the street at a high rate of speed, right up to [her] car." It appeared to Gagnon that Sullivan was purposely headed right for her car, and she became frightened. He blocked her in between his ATV and a tree, with the ATV parked beside her driver's side door. He was standing up on the ATV and appeared to be in a rage, shouting and cursing at Gagnon. He got off the ATV and walked toward her, still shouting and cursing. Gagnon told him she was just turning around and to leave her alone or she would call the police.
However, Sullivan grabbed the car window, which was rolled down one to two inches, and tried to pull it off. He also tried to forcibly pull the car door open, while yelling at her to " get out of the car, bitch." Gagnon, fearing that Sullivan was going to hurt her, hung up the call she had been on with Pierce, and started to call 911. Sullivan then got back on the ATV and drove away toward the road before coming back [331 Ga.App. 594] at her, in reverse, at full speed, and smashing into the driver's side door of her car, breaking the window and sending glass flying everywhere. Before speeding off, Sullivan turned to her and said, " oops, sorry, bitch." She immediately dialed 911, and as she and Pierce were waiting for police to arrive, she saw a white BMW 745, one of the vehicles owned by Sullivan, drive by, " flying ... kicking up dust" headed out toward Brown's Bridge Road. Gagnon suffered minor scrapes from the glass and swelling of her knee that had been resting against the car door. Photographs introduced at trial showed the damage to her car door, rear view mirror, and windshield, which cost $2,868.64 to repair.
Sullivan testified in his own defense and admitted to following " real close behind [Gagnon's] car" when he first spotted her driving past his house. He followed her to the spot where she had pulled over, " shoot[ing]" fast across Bethel Road and stopping within five feet of her car door. According to Sullivan, he asked her if he could help her with something, and she rolled her window down one to two inches but did not respond. He admitted to climbing down from the ATV, trying to look through the car window, and calling her a " bitch." However, he claimed that when he left, he meant to speed off quickly to spray rocks on her car, but accidentally put the ATV in reverse and ran into her car. He further admitted to saying, " sorry, bitch" and immediately returning to his house before taking off with friends for dinner plans.
In rebuttal, the State presented the testimony of Sandra Partridge, the Forsyth County Chief Assistant District Attorney. Partridge stated that during a calendar call for his case, Sullivan approached her and asked to speak to her about the case. Although she instructed him several times that he should not talk to her about the facts of the case and that anything he said to her could be used against him at trial, he insisted on telling her that all he was trying to do to Gagnon was " to scare her."
1. In his first enumeration of error, Sullivan asserts that the trial court erred in failing to merge his convictions for the criminal damage to property charges because criminal damage to property in the first degree and criminal damage to property in the second degree " are ...