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Pettis v. State

Court of Appeals of Georgia, Fifth Division

June 12, 2019


          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          Goss, Judge.

         On appeal from his conviction for family violence battery and simple assault, Jerry Wayne Pettis argues that the evidence was insufficient as to the assault, that trial counsel was ineffective, and that the trial court erred in requiring him to reimburse the State for his defense costs. We find no error and affirm.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation omitted.) Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation and emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         Thus viewed in favor of the jury's verdict, the record shows that on August 28, 2014, Pettis was living with his wife and her teenage son when he began arguing with his wife in the laundry room. The son did not confront Pettis because Pettis had previously choked him. When Pettis demanded the keys to the couple's car and attempted to get them from his wife's pockets, she resisted, at which Pettis grabbed her by the arms and threw her to the ground, where she landed on her elbows and knees. Pettis then grabbed the back of his wife's head, pushed it down into the floor, and twisted her arm behind her back. When Pettis told his wife that she was "not going anywhere," she went back into the house, where her son saw her injuries, including a welt on her forehead. The son then told Pettis, "You can't keep my mom here." At this, Pettis charged the son, who retreated into the house. When Pettis walked away from the door of the house, the victims escaped to a neighbor's house, where they called 911.

         The victims made statements describing these events to officers arriving at the scene, but contradicted some of the details at trial, perhaps because, as they testified, they were afraid of Pettis. The State introduced a certified copy of a conviction arising from the prior choking incident. Pettis was charged with two counts of family violence battery as to his wife and one count of simple assault as to her son. After a jury found Pettis guilty of all three crimes, he was convicted and sentenced to five years with three to serve. His out-of-time motion for new trial was denied on the merits, and this appeal followed.[1]

         1. Pettis challenges the sufficiency of the evidence against him only as to the assault charge.

         A person commits the offense of simple assault when he or she "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a) (2). The crime of simple assault "is complete if there is a demonstration of violence, coupled with an apparent present ability to inflict injury so as to cause the person against whom it is directed reasonably to fear that he will receive an immediate violent injury unless he retreats to secure his safety." (Punctuation and footnote omitted.) Daniels v. State, 298 Ga.App. 736, 737 (681 S.E.2d 642) (2009). Moreover, "assault is an attempted battery, so the state must show that the defendant made a substantial step toward committing the battery." (Punctuation and footnote omitted.) Id.

         Here, it was for the jury to determine whether, in light of the prior difficulties between them, Pettis's act of charging his stepson placed him in reasonable fear of receiving a violent injury. Daniels, 298 Ga.App. at 738 (evidence including that a defendant blocked the victim from escaping his presence as he shouted at her "authorize[d] the jury to find that [the victim] feared she would receive an immediate violent injury and that her fear was reasonable") (punctuation and footnote omitted). The evidence outlined above sufficed to sustain Pettis's conviction as to all of the charges against him. OCGA §§ 16-5-23.1 (defining family violence battery), 16-5-20 (a) (2) (defining simple assault); Jackson, supra.

         2. Pettis argues that trial counsel was ineffective when he failed to object to portions of the prosecutor's closing argument. We disagree.

         To show ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 S.E.2d 362) (1985), citing Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). As to deficient performance, "every effort must be made to eliminate the distorting effects of hindsight," and the trial court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Citation and punctuation omitted.) White v. State, 265 Ga. 22, 23 (2) (453 S.E.2d 6) (1995). As to prejudice, a defendant need only show "a reasonable probability of a different outcome" due to trial counsel's deficient performance. (Punctuation and footnote omitted.) Cobb v. State, 283 Ga. 388, 391 (2) (658 S.E.2d 750) (2008). Finally, the question of ineffectiveness is a mixed one of both law and fact: "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Footnote omitted.) Suggs v. State, 272 Ga. 85, 88 (4) (526 S.E.2d 347) (2000).

         (a) Pettis first objects to the State's assertions in closing argument that the victim was part of a cycle of violence characteristic of abused women, including self-blame and false reconciliation, with the victims sometimes "pos[ing] more of a threat to [a police] officer than the defendants do or the perpetrators" and eventually "working against" the State's case, as outside the scope of the evidence. Pettis also objects to the State's assertion that the victim had been "nasty to [the prosecutor's] office" and to the prosecutor "personally."

         Given these victims' refusal to stand by their statements at the scene, the State's characterization of them as hostile witnesses was a reasonable extrapolation from the evidence presented at trial, and any objection would have been meritless. See Hendrix v. State, 298 Ga. 60, 66 (2) (d) (779 S.E.2d 322) (2015) (defense counsel was not ineffective for failing to object to prosecutor's comments during closing argument regarding witness intimidation, which "drew on reasonable inferences from admissible evidence and the trial proceedings" and was "within the wide realm of acceptable closing argument") (citation omitted); Lewis v. State, 317 Ga.App. 218, 225 (5) (735 S.E.2d 1) (2012) (when witnesses "recanted or minimized their initial complaints" against a perpetrator of domestic violence, it was highly improbable that a witness's improper testimony about the cycle of domestic violence contributed to the guilty verdict).

         But even assuming that the State's argument was improper and that counsel's failure to object to that argument amounted to deficient performance, "the trial court instructed the jury that closing arguments were not to be considered as evidence[.]" Grier v. State, - Ga.App. - (2) (b) (Case No. S19A0634, decided May 20, 2019). In light of the evidence against Pettis, including the wife's written statement to police on the night of the incident, Pettis's other convictions arising from his prior difficulties with the victims, and the wife's testimony that she did not remember the circumstances of those prior ...

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