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Horne v. State

Court of Appeals of Georgia, Second Division

June 23, 2015

HORNE
v.
THE STATE

Page 468

Editorial Note:

This Opinion is Uncorrected and subject to revision by the court.

MILLER, Judge. Andrews, P. J., and Branch, J., concur.

OPINION

Page 469

Miller, Judge.

Following a jury trial, Damion Horne was convicted of aggravated battery (OCGA § 16-5-24 (a)), aggravated assault (OCGA § 16-5-21 (a) (2) (2008)), false imprisonment (OCGA § 16-5-41 (a)), and battery (OCGA § 16-5-23.1 (a)).[1] Horne appeals from the denial of his motion for new trial,

Page 470

contending that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] (1979).

(Citation omitted.) Wilson v. State, 318 Ga.App. 37 (733 S.E.2d 345) (2012).

So viewed, the evidence shows that the victim and Horne were in a long-term relationship and shared a residence. On August 11, 2008, prior to the incident at issue, the victim called 911 and reported that Horne had physically assaulted her after he saw text messages on her phone concerning a sexual relationship with another man. The responding officer observed that the left side of the victim's face was very swollen and she was very upset. Horne, who had left the residence before police arrived, was not arrested.

On August 18, 2008, the day at issue, the victim called 911 and reported that Horne came to the house, beat her, raped her, stabbed her with scissors, and would not let her leave the house. When police officers responded to the scene, they caught Horne as he was attempting to flee. A police officer made contact with the victim and observed that she was crying, her face was swollen and bruised, one eye was swollen and bloodshot, and she had wounds on her legs.

The victim was transported to the hospital. At the hospital, and during a police interview that was recorded and played for the jury, the victim reported that, on the day in question, Horne accused her of seeing another guy, began hitting her when she denied it, and then grabbed her by her hair and dragged her upstairs, where he threw her onto the bed and resumed hitting her while threatening to kill her.

A few months before the trial, the victim married Horne. At Horne's trial, the victim recanted her allegations of abuse. In particular, the victim testified that she lied about the August 11 and August 18 incidents; most of her injuries were the result of consensual rough sex with Horne, while other injuries were self-inflicted; and Horne did not become physically violent with her, never threatened to kill her, and never hit her on the head. The victim testified that she lied about Horne hurting her and threatening to kill her because she hoped to get Horne into trouble for wanting to leave her.

After the victim recanted, the State called an expert in the field of intimate partner violence. The expert testified about the behaviors of victims of such violence, including that some of these victims minimize the acts of violence because they want to stay with the abuser, they often return to their abuser after an incident of violence, victims often change their mind about participating in the prosecution of such offenses and victims sometimes recant their claims of abuse once they realize the ramifications of filing a police report.

1. In three related enumerations of error, Horne contends that trial counsel was ineffective in handling the testimony of the State's expert witness. Horne has failed to establish that trial counsel was ineffective.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption

Page 471

that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial ...

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