Baxter v. the State , 329 Ga. App. 589 ( 2014 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
November 13, 2014
In the Court of Appeals of Georgia
A14A1128. BAXTER v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Jared U. Baxter was convicted of one count of rape, one count
of kidnapping, three counts of burglary, three counts of terroristic threats, and one
count of peeping tom. He appeals, arguing that his sentence of life without the
possibility of parole for the rape conviction is illegal; that trial counsel was
ineffective; and that the state failed to prove asportation as required for the
kidnapping conviction.
As the state concedes, the sentence of life without the possibility of parole for
the rape conviction is illegal. Accordingly, we vacate that sentence and remand for
resentencing. We reject Baxter’s other claims. Baxter argues that trial counsel was
ineffective for failing to object to the admission of certain evidence. We find that
some of the evidence was admissible and trial counsel had strategic reasons for
failing to object to the other evidence. We also find that the state sufficiently proved
asportation. We therefore affirm Baxter’s convictions.
1. The evidence was sufficient to support the convictions.
Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App.
682 (1) (746 SE2d 162) (2013) (citation omitted), the evidence shows that on June
29, 2008, the first victim woke up in her bedroom to find Baxter putting his hand on
her mouth threatening to kill her if she screamed. When she fought back, Baxter fled
through the back door. The victim called the police and left her apartment. When she
returned, she discovered that her television was missing. The police later recovered
the television in Baxter’s apartment while executing a search warrant.
Less than a week later, Baxter forced his way into the apartment of the second
victim. He threatened to slit her throat if she screamed. Baxter raped the victim,
ejaculated on her back, and then made her take a shower. The victim described her
assailant as wearing a mask with eye holes cut out of it and a long-sleeved t-shirt.
Investigators found a similar mask and a long-sleeved t-shirt in Baxter’s storage
closet.
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On July 14, 2008, the third victim was watching television on her laptop. She
heard a sound and went to check that the door was locked, when Baxter forced his
way into her apartment, covered her mouth with his hand, and threatened to slit her
throat. Baxter told the victim to remove her shirt, but she fought him and he retreated.
The victim described her assailant as wearing a black ski mask with white stripes
above the eyes, the same kind of mask found in Baxter’s storage closet.
A few days later, the sheriff’s office set up a surveillance operation at the
apartment complex. At around 5:20 in the morning, a deputy saw an individual, who
was later identified as Baxter, drive up and park in a bright blue Saturn, take a black,
cloth object from the trunk of the car, and place it in his back pocket. Baxter looked
into the back window of an apartment. He heard a noise, thought someone had seen
him peeping into the window, and fled in his car, pursued by two undercover
Richmond County deputies. Baxter was eventually stopped in South Carolina. Baxter
admitted looking into the window, but he said he was spying on his girlfriend. But his
girlfriend did not live in that apartment; instead that apartment belonged to the fourth
victim.
Baxter testified at trial. He admitted being a peeping tom and admitted peeping
into the window of the fourth victim.
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Although Baxter did not raise the issue, we find that the evidence at trial was
sufficient to support the convictions of rape, burglary, terroristic threats, and peeping
tom beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61
LE2d 560) (1979). As discussed in more detail in Division 4, we also find that the
evidence was sufficient to support the kidnapping conviction beyond a reasonable
doubt.
2. Baxter is entitled to re-sentencing on the rape conviction.
Baxter argues that, under the circumstances of this case, he could not be
sentenced to life without the possibility of parole for the rape conviction. See Merritt
v. State, 286 Ga. 650 (690 SE2d 835) (2010); State v. Velazquez, 283 Ga. 206 (657
SE2d 838) (2008). The state, to its credit, concedes the point. Accordingly, we vacate
Baxter’s sentence on the rape conviction and remand for re-sentencing.
3. Baxter did not receive ineffective assistance of trial counsel.
Baxter argues that he received the ineffective assistance of trial counsel
because trial counsel did not object to the admission of certain evidence seized in
searches of his apartment, car, and computer. To prevail on his claim of ineffective
assistance of counsel, Baxter was required to show both deficient performance by trial
counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104
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SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d
362) (1985). If Baxter “fails to meet his burden of proving either prong, then we do
not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686
SE2d 863) (2009) (citation omitted).
Baxter argues that trial counsel was ineffective for failing to object to the
admission of evidence seized during the execution of a search warrant for his
apartment. Although he does not state it explicitly, his argument seems to be based
on the premise that by failing to object to the admission of this evidence, trial counsel
rendered defective performance because he waived the challenges to the admissibility
of the evidence that he had asserted in his motion to suppress. However, “[f]ailing
to object at trial is not a waiver of the motion to suppress grounds, [although]
affirmatively stating there is no objection in effect concedes the point.” Dyer v. State,
233 Ga. App. 770, 771 (505 SE2d 71) (1998) (citations omitted; emphasis in
original). Regardless of whether counsel failed to object to this evidence or whether
he affirmatively stated there was no objection, Baxter cannot show ineffective
assistance of counsel because the evidence either was admissible or was not
challenged because of a reasonable trial strategy.
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(a) Counsel’s failure to object to the admission of evidence seized from
Baxter’s apartment.
Baxter argues that the warrant to search his apartment was not supported by
probable cause. Our Supreme Court, in State v. Palmer, 285 Ga. 75 (673 SE2d 237)
(2009), described the standards applicable to the various levels of judicial scrutiny
involved in the warrant process as follows:
The magistrate’s task in determining if probable cause exists to issue a
search warrant is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons supplying
hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.
The trial court may then examine the issue as a first level of review,
guided by the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant, and the principle that substantial
deference must be accorded a magistrate’s decision to issue a search
warrant based on a finding of probable cause.
A deferential standard of review is appropriate to further the Fourth
Amendment’s strong preference for searches conducted pursuant to a
warrant. Although in a particular case it may not be easy to determine
when an affidavit demonstrates the existence of probable cause, the
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resolution of doubtful or marginal cases in this area should be largely
determined by the preference to be accorded to warrants.
Our appellate courts will review the search warrant to determine the
existence of probable cause using the totality of the circumstances
analysis. . . . The duty of the appellate courts is to determine if the
magistrate had a substantial basis for concluding that probable cause
existed to issue the search warrant. . . . In reviewing the trial court’s
grant or denial of a motion to suppress, we apply the well-established
principles that the trial court’s findings as to disputed facts will be
upheld unless clearly erroneous and the trial court’s application of the
law to undisputed facts is subject to de novo review, keeping in mind
that a magistrate’s decision to issue a search warrant based on a finding
of probable cause is entitled to substantial deference by a reviewing
court.
Id. at 77-78 (citations and punctuation omitted).
Viewed with theses principles in mind, we turn to the warrant in this case. The
warrant authorized the search of Baxter’s apartment for items that included a 35-inch
Samsung television, a ski mask, gray gloves, a red long-sleeve shirt, and
electronically stored material including material on computers and external hard
drives. The warrant was supported by a lengthy affidavit in which the affiant related
that on June 29, 2008, at 5:25 a.m., the first victim reported that she awoke in her
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bedroom to find a man with a red bandana covering his face standing at her bedroom
door. The man grabbed her, placed his hand over her mouth, and threatened to kill her
if she screamed. The victim was able to push the man in the chest and run out her
front door. She ran to her neighbors’ residence and called the police. When she
returned to her apartment, she saw that her 35-inch Samsung television had been
taken. That victim lived at a particular address on Iron Horse Drive.
The affiant averred that on July 3, 2008, at 1:42 a.m., the second victim
reported that she was getting ready for bed, and while she was naked, entered her
kitchen to get a drink. She decided to place the trash outside her back door, when a
man forced his way into her residence. The perpetrator put his hand over the victim’s
mouth, told her he had a knife, and threatened to cut her throat if she resisted. The
perpetrator inserted his fingers into the victim’s vagina and then unsuccessfully tried
to penetrate her with his penis. The perpetrator made the victim kneel on the couch
and then began having sexual intercourse with her. He pulled out his penis and
ejaculated on her back. The perpetrator wiped off the victim’s back with his shirt and
then forced her to shower. He told her to stay in the bathroom as he left. The victim
described the perpetrator as a white male, approximately five feet, 10 inches tall,
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weighing 155 pounds with blue eyes, wearing blue jeans and a mask. That victim
lived at another address on Iron Horse Drive.
The affiant related that on July 8, 2008, two individuals reported that on March
26, 2008 at 1:09 a.m., they had heard a noise outside their bedroom window. One of
them looked out the window and saw a bald white male, approximately five feet, 10
inches tall, weighing 155 pounds standing outside their window. The man fled. One
of the individuals thought that the man was familiar from the apartment complex.
They also lived on Iron Horse Drive.
The affiant related that on July 14, 2008 at 1:20 a.m., the third victim reported
that she was sitting by the rear sliding glass door to her apartment while she was
working on her computer. She heard a scratching noise by the door and pushed open
the blinds to see whether the door was locked, when a man pushed open the door. The
third victim described the man as a white male, approximately five feet, 10 inches tall,
weighing from 150 to 160 pounds with blue eyes, wearing blue jeans, a red long
sleeve T-shirt, and a mask. The perpetrator put his hand over her mouth and
threatened to slit her throat if she screamed. He told her to stand up and take off her
shirt, but she ran for the front door, screaming. As she looked back, she saw the man
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fleeing the scene out the same door he had entered. That victim lived at an address
on Ridgecrest Drive.
The affiant explained that based on these facts, investigators believed that there
was a serial sexual offender in the area, who had firsthand knowledge of the area
from either living or working there, and that based on the information from the two
individuals, the investigators believed that the perpetrator may have been conducting
surveillance of his victims prior to their attacks.
The affiant described the officers’ surveillance operation: On July 17, 2008 at
5:20 a.m., officers were conducting surveillance in the Iron Horse and Ridgecrest
apartments from an apartment. One of the officers was monitoring video and noticed
a blue Saturn Ion pull into the complex. He lost sight of the vehicle when it went out
of range of the videocameras, so the officer looked out the front window of the
apartment and saw a man later identified as Baxter exit the Saturn and retrieve from
the trunk a cloth object, which he stuffed into his back pocket. The officer watched
Baxter walk to the rear patio door of an apartment, and then look into the window,
where the fourth victim was showering. When Baxter heard a noise from the officers,
he fled to his vehicle and left the complex. He was stopped by South Carolina police.
When asked about his presence in the Iron Horse Apartments he said he was
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attempting to spy on his mistress, but gave the name of a person other than the fourth
victim, who lived alone in her apartment. Baxter matched the description given by the
second and third victims, and has blue eyes. Baxter lived on Ridgecrest Drive.
Under the totality of the circumstances, the magistrate had a substantial basis
to determine that there was a fair probability that evidence of a crime would be found
in Baxter’s apartment. The police caught Baxter peeping into a woman’s apartment
in the area where they believed a serial sexual offender was operating, and they
believed the offender was conducting surveillance on his victims prior to their
attacks. Baxter matched the description of the perpetrator given by two of the victims
and he lied, falsely claiming to be spying on his girlfriend.
Further, the magistrate properly allowed the police to seize the clothing and
mask the victims described the perpetrator as wearing, as well as the television that
the first victim reported had been stolen. OCGA § 17-5-21 (a) (1), (3). Consequently,
Baxter has failed to establish that he was prejudiced by counsel’s failure to object to
or acquiescence in the admission of the clothing, mask, and television seized pursuant
to a search of his apartment.
(b) Counsel’s failure to object to the admission of evidence seized from
Baxter’s camera and computers.
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Baxter argues that trial counsel was ineffective for failing to object to the
admission of “peeping tom” images taken from his camera and computers. He asserts
that the admission of this evidence violated the Fourth Amendment and that it
constituted evidence of other crimes. At the motion for new trial hearing, trial counsel
explained that he did not object to the admission of this evidence because he wanted
to establish credibility with the jury, given that Baxter was “caught red-handed”
committing the act of peeping tom. His strategy was to establish for the jury that
Baxter may have been a peeping tom, but he was not a rapist. Baxter himself testified
at trial that he was a peeping tom.
Baxter has not shown counsel’s failure to object to the admission of this
evidence amounted to a deficient performance. See Paul v. State, 257 Ga. App. 86,
87 (570 SE2d 399) (2002) (given overwhelming evidence of theft, trial counsel’s
strategy of showing state could prove robbery but not armed robbery was reasonable);
see also Mallon v. State, 266 Ga. App. 394, 396 (2) (597 SE2d 497) (2004) (bench
trial strategy of showing that evidence established lesser charged offense but not
greater charged offense was reasonable). Consequently, this ineffective assistance of
counsel claim fails.
4. The state proved asportation sufficient to support the kidnapping conviction.
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Citing Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), Baxter argues that
his kidnapping conviction must be reversed because the slight movement of the
second victim solely occurred during the commission of the separate violent crimes
and did not expose her to any danger independent of the danger already in progress.
In Garza, our Supreme Court set out four factors to determine whether the
asportation element was met:
(1) the duration of the movement; (2) whether the movement occurred
during the commission of a separate offense; (3) whether such
movement was an inherent part of that separate offense; and (4) whether
the movement itself presented a significant danger to the victim
independent of the danger posed by the separate offense.
Id. at 702 (1). After our Supreme Court’s decision in Garza, the legislature amended
the kidnapping statute, effective July 1, 2009, to provide that slight movement is
sufficient to prove kidnapping as long as the movement was not incidental to another
offense. Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011). But because
Baxter’s acts occurred prior to the statute’s July 1, 2009 effective date, Garza applies.
Id. at n. 5. The state is not required to satisfy all four Garza factors in order to prove
the element of asportation. Brown v. State, 291 Ga. 750, 753 (2) (733 SE2d 300)
(2012).
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The second victim testified that after Baxter raped her on her couch and
ejaculated on her back, he made her take a shower, instructing her to wash the small
of her back and her genital area. He would not allow her to close the shower curtain
and he watched her shower. He became impatient with her and she was afraid of
upsetting him. He eventually left the bathroom, and the victim, afraid that Baxter was
still in the apartment, waited in the bathroom for about five minutes before she left
to call for help.
The movement of the victim to the bathroom was not an inherent part of the
rape, as that crime had already ended. “Further, moving the victim into the bathroom
placed [her] in a more dangerous situation because isolating [her] made it easier for
[Baxter] to maintain control over [her] and made it impossible for [her] to call for
help.” Brown, supra, 291 Ga. at 753 (2). We conclude that the state presented
sufficient evidence to support the kidnapping verdict. Id. (movement of victim from
front of house to back bathroom was not insignificant, was not an inherent part of
other charged crimes and placed victim in more dangerous situation). Accord
Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (moving victim
from hotel room into bathroom was sufficient asportation as it created additional
danger to her by increasing defendant’s control over her and was not inherent part of
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aggravated assault); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010)
(pulling victim back into hotel room from hallway sufficient to prove asportation
because it occurred before defendant threatened her with a razor and raped her).
Judgment affirmed, sentence vacated in part, and case remanded for
resentencing. Andrews, P. J., and Ray, J., concur.
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