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Lynch v. State

Court of Appeals of Georgia, First Division

June 28, 2018

LYNCH
v.
THE STATE

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Reese, Judge.

         A jury found Raoul Lynch guilty of committing rape, kidnapping with bodily injury, two counts of aggravated assault, and burglary.[1] He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his plea in bar and in instructing the jury, that the prosecution on the charges violated his constitutional rights, that he received ineffective assistance of counsel, and that the evidence was insufficient to support his kidnapping conviction. For the reasons set forth infra, we reverse his convictions and remand this case to the trial court for a new trial solely on the rape charge.

         Viewed in the light most favorable to the jury's verdict, [2] the record shows the following facts. Late on the evening of June 5, 1995, a woman (hereinafter, "the victim") was entering her Fulton County condominium unit ("condo") when a man grabbed her around her throat with "extreme force" and placed her in a headlock. The victim was unable to scream due to being choked. The man pushed her inside the condo while repeatedly demanding "Give me all your money" and "Where [are] we at?" Once inside the condo, the man punched her in the face several times, then pushed her toward the back of the condo and shoved her into a wall, telling her, "Don't make a sound." While the victim begged the man not to kill her, he pushed her into her bedroom and shoved her against a bedpost with such force that it broke in half. The man demanded her money and jewelry, and she told him to take her wallet, her car, and anything in the condo in the hope that he would leave.

         The man, however, forced the victim to her knees, used her belt to tie her hands behind her back, and tied a towel around her face so that she could not see and had difficulty breathing. The man picked her up, threw her on her bed, and pulled off her underwear. He grabbed her hair and raped her for a "very, very long time" in a manner the victim described as "brutal," while she begged him to stop. The man also anally sodomized her and forced her to perform oral sex on him.

         During the attack, which lasted several hours, the victim was only able to get brief glimpses of the assailant because the lights were off in the condo and, during most of the attack, there was a towel covering her face. Eventually, the man got dressed and, as he was leaving the condo, told her that, if she reported the assault, she "might not make it next time."

         After the man left, the victim called her parents and 911 to report the assault. She was transported by ambulance to a hospital, where she received treatment for her multiple injuries. An emergency room physician also performed a sexual assault examination on the victim and collected bodily fluids, hair clippings, and other evidence from her for a sexual assault kit that was then provided to the Fulton County Police Department. The police department, in turn, delivered the sexual assault kit, along with evidence collected from the victim's condo, to the Georgia Bureau of Investigation's Division of Forensic Sciences ("crime lab") for testing.

         On October 4, 2001, a crime lab forensic biologist compared a profile that had been created from a sample of deoxyribonucleic acid ("DNA") from the assailant in this case to DNA profiles that had been entered into the national Combined DNA Index System ("CODIS") database. According to the forensic biologist, the assailant's DNA profile matched a profile that had been created from a DNA sample obtained from the Appellant.

         Based upon the DNA match in the CODIS database, a Fulton County officer obtained an arrest warrant for the Appellant on October 30, 2001. However, the officer failed to enter the warrant into the state-wide Georgia Crime Information Computer ("GCIC") system. It was not until July 2002, when another officer was assigned to the case, that the warrant was entered into the GCIC system. Although officers then obtained addresses where the Appellant had recently lived, when they attempted to locate him at those addresses, they found the residences unoccupied.[3]The Appellant was eventually arrested in New York and returned to Fulton County in August 2007.

         In May 2005, about four years after the Appellant's DNA was matched with the assailant in this case on the CODIS database, the State filed an indictment charging the Appellant with rape, kidnapping with bodily injury ("kidnapping"), two counts of aggravated assault, and battery.[4] In June 2008, the State filed another indictment against the Appellant, charging him with the same crimes as in the 2005 indictment, but adding language to each count stating that his identity as the perpetrator had been established through deoxyribonucleic acid (DNA) evidence.[5]The Appellant was arraigned on the 2005 and 2008 indictments on July 18, 2008. Then, in September 2010, the State filed a third indictment that charged the Appellant with the same crimes and included the same DNA-related language as in the previous indictments, but each count also included the statement that "the identity of the accused was not known to the State until October 4, 2001[.]"

         In November 2010, the Appellant filed a plea in bar challenging the validity of the indictments, arguing that the 2005 indictment was fatally defective because it was filed outside of the applicable statute of limitation periods and did not allege any tolling provisions or exceptions to the running of the statutes of limitation. He also argued that, because the 2005 indictment was fatally defective, the 2008 and 2010 indictments were impermissible superseding indictments that could not relate back to the invalid 2005 indictment as a matter of law. According to the Appellant, because he could not be tried on an invalid indictment, the charges against him had to be dismissed.

         The trial court denied the plea in bar, concluding that the State had timely filed the 2005 indictment and that the 2005 indictment was still pending at the time the State filed the 2008 and 2010 indictments. The court ruled, therefore, that the 2008 and 2010 indictments were valid superseding indictments because they related back to the 2005 indictment. The court also found that, because the Appellant failed to file a demurrer or plea in bar challenging the validity of the 2005 and 2008 indictments within ten days after arraignment on those indictments, he had waived his challenge to the validity of those indictments.

         The case proceeded to trial and, in April 2011, a jury found the Appellant guilty of rape, kidnapping, two counts of aggravated assault, and burglary. The trial court denied the Appellant's motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [6] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[7]

         "The standard of Jackson v. Virginia, [8] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."[9] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. As an initial matter, we must address the Appellant's contention that the trial court erred in applying the 1996 amendment to former OCGA § 17-3-1 (b), [10] which extended the statute of limitation period for rape from seven to fifteen years, [11] to the 1995 rape in this case, arguing that it constituted an unconstitutional retroactive application of the amendment. We disagree.

         (a) Both the federal and state constitutions prohibit the enactment of an ex post facto law.[12] "To determine whether a penal statute is an ex post facto law, we employ a three-step analysis: First, we ask whether the law applies retrospectively. If it does not, our inquiry is at an end. A penal statute is retrospective if it alters the consequences for crimes committed prior to its enactment."[13] Such consequences include, among other things,

the infliction of a greater punishment than was permitted by the law in effect at the time of the commission of the offense, the subsequent proscription of an act which was not a crime when done, the alteration of the quality or degree of the charge, the requirement of less or different evidence than was necessary at the time of the violation, and the deprivation of any substantial right or immunity possessed at the time the defendant committed the act.[14]

         In Flournoy v. State, [15] this Court rejected the defendant's argument that the 1996 amendment to OCGA § 17-3-1 (a) was unconstitutionally applied in the prosecution of a rape that was committed in 1995. Specifically, this Court ruled that,

[w]here a statute extends the period of limitation, the extension applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period. Such a statute, however, cannot operate to revive offenses that were barred at the time of its enactment, since that would make the statute ex post facto.[16]

         Thus, this Court found that the limitation period for the rape committed by Flournoy on December 13, 1995, expired fifteen years from that date under OCGA § 17-3-1 (a), even though the legislature had extended the limitation period from seven to fifteen years in 1996, after the rape occurred, as in this case.[17] According to this Court, "[n]o ex post facto violation [arose] because the original seven-year limitation period had not expired at the time OCGA § 17-3-1 was amended in 1996."[18]

         For the same reason, we find that this alleged error lacks merit and that the trial court properly ruled that the applicable statute of limitation period for the rape charge in this case was 15 years.

         (b) Further, to the extent the Appellant raises an ineffective assistance claim based upon counsel's failure to argue that the retroactive application of the 1996 amendment violated other constitutional rights besides the protection against ex post facto laws, such claim is moot for the reasons given in Division 6, infra.

         2. We also conclude that, in its order denying the Appellant's plea in bar, the trial court properly ruled that former OCGA § 17-3-1 (c.1), [19] which eliminated the statutes of limitation for rape and kidnapping when DNA evidence was used to identify the accused, applied only to offenses committed on or after July 1, 2002, [20] and, thus, did not apply in the instant case.[21]

         3. The Appellant contends that the trial court erred in denying his plea in bar as to the charges in all three indictments. His arguments attack each of the three indictments independently, as well as collectively to the extent that the court ruled that the 2008 and 2010 indictments were valid superseding indictments that related back to the 2005 indictment.

The appellate standard of review for a plea in bar asserting a statute of limitation[ ] defense is a de novo review of the issue of laws. Since this ruling involves a mixed question of fact and law, we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.[22]

         For the following reasons, we find that the trial court erred in denying the Appellant's plea in bar as to the charges for kidnapping, aggravated assault, and battery. However, the trial court properly denied the plea in bar as to the rape charge.

         (a) (i) The 2005 Indictment.

         The record shows that, on May 27, 2005, the State indicted the Appellant for rape, kidnapping, aggravated assault, and burglary, [23]alleging that the Appellant committed those offenses against the victim on June 6, 1995. The indictment also charged him with committing an aggravated assault against the victim on June 1, 1995.[24] Although almost ten years had passed between the date the crimes were committed and the filing of the indictment, the indictment was timely filed within the fifteen-year statute of limitation period for the rape charge.[25] However, the seven-year statute of limitation period had expired on the kidnapping charge, [26] as had the four-year limitation period for the aggravated assault and burglary charges.[27] Despite this, none of those counts contained tolling or other language that explained why the charges were not time-barred even though the indictment had been filed outside of the applicable statute of limitation periods.[28]

         It is axiomatic that the statute of limitation period for charging an individual for a crime begins running at the time of the criminal act.[29] Thus, the State must file an indictment charging the accused with the offense within the applicable statute of limitation period for that crime.[30] Under certain circumstances, however, the State may file an indictment after the statute of limitation period for the alleged crime has expired.[31] In such cases, the State must specifically allege in each count of the indictment the applicable tolling provision or exception to the statute of limitation in order to show that the charged offense is not time-barred.[32] And, at trial, "[t]he burden is unquestionably upon the State to prove that [the] crime occurred within the statute of limitation [period], or, if an exception to the statute is alleged, to prove that the case properly falls within the exception."[33]

         In this case, the 2005 indictment showed on its face that it was filed after the applicable statute of limitation periods had expired.[34] Thus, because the indictment did not include the required language to show that the statute of limitation periods had been tolled, the indictment was fatally defective as a matter of law as to the kidnapping, aggravated assault, and burglary charges, and the Appellant's convictions on those counts must be reversed.[35] However, because the 15-year statute of limitation period for the rape charge had not expired in 2005, that count of the indictment was timely filed and sufficient to support the Appellant's rape conviction.[36]

         (ii) We also conclude that the trial court erred in denying the Appellant's plea in bar based on its finding that the Appellant had waived his challenge to the validity of the 2005 indictment because he did not file a demurrer or plea in bar within ten days of arraignment, [37] pursuant to OCGA § 17-7-110.[38] As noted in State v. Barker, [39] this Court rejected such a time-based limitation over a century ago.[40] It follows that a defendant may file a plea in bar or general demurrer challenging the validity of an indictment at any time before trial and, even if the defendant fails to file such a challenge, he "may still assert the defense of the statute of limitation[ ] in the trial of the case."[41] Consequently, the trial court erred in ruling that the Appellant had waived his claim that the 2005 indictment was fatally defective by failing to raise such claim within ten days of his arraignment.

         (b) The 2008 Indictment.

         As noted above, on June 27, 2008, the State filed a second indictment charging the Appellant with the same crimes as in the 2005 indictment.

         (i) In its order denying the Appellant's plea in bar, the trial court ruled that the 2008 indictment was a valid superseding indictment because it related back to the 2005 indictment.

Georgia has adopted the federal rule recognizing that a superseding indictment filed after the expiration of the statute of limitation may relate back to a timely-filed original indictment if certain conditions are met. A superseding indictment brought after the statute of limitation has run is valid as long as (i) the original indictment is still pending; (ii) the original indictment was timely; and (iii) the superseding indictment does not broaden or substantially amend the original charges.[42]

         "A superseding indictment usually refers to an indictment that is returned while a valid indictment is still pending."[43]

         In ruling that the 2008 indictment was a valid superseding indictment, the trial court found that the 2005 indictment had been timely filed, that it was still pending when the 2008 indictment was filed, and that the 2008 indictment did not substantially broaden or amend those pending charges.[44] As previously discussed in Division 3 (a) (i), supra, however, the 2005 indictment charged crimes that were committed in 1995, yet it included no language to show that the applicable statute of limitation periods had been tolled. Thus, with the exception of the rape charge, the 2005 indictment showed on its face that it was not "timely filed" within the applicable statute of limitation periods and was, therefore, fatally defective. It follows that the court erred in ruling that the 2008 indictment was valid as to the kidnapping, aggravated assault, and burglary charges because it related back to the 2005 indictment.[45]

         (ii) The issue becomes, therefore, whether the 2008 indictment, standing alone (as if the 2005 indictment had never been filed), showed on its face that it was filed within the applicable statute of limitation periods.

         When the 2008 indictment was filed, 13 years had passed since the crimes at issue had been committed in 1995. Therefore, just as with the 2005 indictment, the face of the 2008 indictment clearly showed that the statute of limitation periods for the kidnapping, aggravated assault, and burglary charges had expired, unless the State alleged that the limitation periods had been tolled or an exception to the statutes of limitation applied.[46]

         In contrast to the 2005 indictment, all of the counts in the 2008 indictment (except the burglary charge) included the following language: "[A]s to [this count], deoxyribonucleic acid (DNA) evidence was used to establish the identity of Raoul Lynch and a sufficient portion of the physical evidence tested for DNA [was] preserved and [was] available for testing by Raoul Lynch." This language apparently referred to the statute of limitation exception found in former OCGA § 17-3-1 (c.1). As discussed in Division 2, supra, however, this exception did not apply to the charges in this case and, thus, did not salvage the kidnapping and aggravated assault charges that were otherwise filed outside of the applicable statute of limitation periods.

         As for the burglary charge, that count did not include the OCGA § 17-3-1 (c.1) language, but, instead, included the statement that "the identity of the accused was not known to the State until the year 2001." This language apparently referred to OCGA § 17-3-2 (2), which tolled the running of the statute of limitation period during any period in which "[t]he person committing the crime is unknown or the crime is unknown[.]"[47] However, because the State discovered the Appellant's identity as the victim's assailant in October 2001, the four-year statute of limitation period expired in 2005, well before the State filed the 2008 indictment.

         Under these circumstances, the 2008 indictment could not stand on its own merits as to the kidnapping, aggravated assault, and burglary charges because it was filed outside the applicable statute of limitation periods for those crimes and failed to include the required language showing that the statute of limitation periods had been tolled. As with the 2005 indictment, however, the 15-year statute of limitation period for the rape charge had not expired in 2008 (regardless whether the running of the limitation period began in 1995 or 2001), so that count of the indictment remained valid and pending.

         (iii) For the same reasons discussed in Division 3 (a) (ii), supra, regarding the 2005 indictment, the trial court erred in finding that the Appellant had waived his challenge to the validity of the 2008 indictment by failing to file a demurrer or plea in bar within ten days of his arraignment.

         (c) (i) The 2010 Indictment.

         On September 17, 2010, the State filed a third indictment that included the same charges as the preceding indictments. For the reasons explained in Divisions 3 (a) and (b), however, the 2010 indictment could not relate back to either previous indictment on the kidnapping, aggravated assault, and burglary charges, because the previous indictments were fatally defective as to those charges. It follows that the trial court erred in finding that the 2010 indictment was a valid superseding indictment on those charges.

         In contrast, because the rape charge in the 2008 indictment was still valid and pending at the time the State filed the 2010 indictment, the 2010 indictment constituted a ...


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