Miller v. the State , 335 Ga. App. 58 ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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 3, 2015
In the Court of Appeals of Georgia
A15A1837. MILLER v. THE STATE. JE-068C
ELLINGTON, Presiding Judge.
A Whitfield County jury found Samantha Miller guilty of two counts of
criminal trespass, OCGA §§ 16-7-21 (a), (b) (1); simple assault, OCGA § 16-5-20 (a)
(2); and battery, OCGA § 16-5-23.1. Miller appeals from the order denying her
motion for a new trial, contending that the trial court erred in failing to give jury
charges on the affirmative defense of justification and that her trial counsel was
ineffective for failing to request those charges. Finding no error, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the record shows the
following. On November 3, 2012, Floyd Head received a phone call from Miller, his
1
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
former girlfriend, asking him for a ride. According to Head, Miller had been
“wrestling” with her sister and needed to get away from her house. Head, who had
been drinking, asked his friend Trevor Beebe to drive him to pick up Miller, and
Beebe agreed. When Head and Beebe arrived at Miller’s sister’s house, Miller was
outside, walking along the road. As soon as Beebe pulled over, Miller “dove into the
back seat.” Head and Beebe testified that Miller was behaving erratically, that she
was “all over the place,” and that she was talking nonsensically about the FBI. During
the ride to Head’s home, Miller bit Beebe twice. She also talked about having sex
with Head and she tried to wrap her legs around his neck from the back seat of the
car.
Head testified that he had seen Miller behave like this before and that he had
hoped she would eventually calm down when Bebee went home. After Beebe left,
Miller asked if she could launder her clothes and take a bath, and Head agreed. While
Miller was in the laundry room, Head sat down in his recliner. Moments later, Miller,
now naked, “c[a]me running at [him],” knocked him out of his recliner, and started
biting and scratching him. Head hit Miller to get her to stop biting him, and Miller ran
out of the house naked.
2
Miller ran toward the home of Yuliana Solis, which was about 55 feet away
from Head’s home. She started beating her face against Solis’ air conditioning
window unit and screaming: “Angel, come out of the room.” Worried for the safety
of his neighbor and her baby, Head called the police.
Solis testified that she was startled by the sounds of very loud banging near her
front door. Miller then broke the window, pulled the air conditioning unit out, and
climbed in to the home. Solis testified that Miller’s face was bloodied, that she
wanted “Angel” to come out, and that she screamed: “I’m going to kill you, you . . .
bitch!” Solis ran with her baby to the kitchen and wedged a chair under the door.
Solis called 911 and hid until the police arrived.
When law enforcement officers arrived, they heard glass breaking and items
being thrown around inside Solis’ home and someone yelling for “Angel.” A
detective with the Whitfield County Sheriff’s Office testified that, as he entered Solis’
home, Miller, who was naked, ran at him. He had to subdue her with a taser. Miller
told the detective that she had pulled the air conditioning unit out so that she could
get inside the house and get Angel. The detective testified that Miller’s behavior was
very erratic, that she disobeyed his orders to sit still, that she was “scooting around
. . . on her knees and sliding around all over the floor, continually coming out of the
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cover that [they] were trying to keep her covered with until [they] could get a female
[officer] there.” The deputy that had accompanied the detective described Miller as
aggressive. The detective eventually had to use his taser a second time to subdue
Miller.
The detective and the deputy testified that they believed Miller was under the
influence of a drug, possibly methamphetamine, synthetic marijuana, or “bath salts.”
During the 40 minutes that Miller was with the responding officers, including a
female corrections officer, she did not tell any of them that she was fleeing from an
assailant, nor did she indicate that anyone had sexually assaulted her. Beebe had
returned at Head’s request and they both spoke with the deputy about Miller’s
behavior.
At trial, Miller claimed that she had broken in to Solis’ home to escape Head,
whom she claimed had spiked her drink with Rohypnol and had sexually assaulted
her. However, she also testified that, when she decided to enter Solis’ home, her
alleged assailants had already stopped chasing her and had gone back home.
1. Miller contends the trial court erred in failing to charge the jury on the
concepts of “affirmative defense” and “justification.” Although the record shows that
the court did, in fact, charge on the concept of justification as it pertained to using
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reasonable force to protect oneself from an assault, Miller argues that the trial court’s
charge was insufficient because it did not adequately address her sole defense to
criminal trespass, that is, that she was justified in entering Solis’ home and damaging
her property to escape from an ongoing assault. For the following reasons, we
disagree.
“A criminal defendant is ordinarily required to present written requests for any
desired jury instructions.” (Citation and punctuation omitted.) Woods v. State, 291
Ga. 804, 809 (3) (733 SE2d 730) (2012). See also OCGA § 5-5-24 (b). However, “[i]f
an affirmative defense is raised by the evidence . . . the trial court must present the
affirmative defense to the jury as part of the case in its charge, even absent a request.”
(Citation and punctuation omitted.) Watts v. State, 259 Ga. App. 531, 533 (3) (578
SE2d 231) (2003). See also Price v. State, 289 Ga. 459 (2) (712 SE2d 828) (2011)
(“The trial court must charge the jury on the defendant’s sole defense, even without
a written request, if there is some evidence to support the charge.”) (citation and
punctuation omitted). “[A]n affirmative defense is one that admits the doing of the
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act charged but seeks to justify, excuse, or mitigate it.” (Punctuation and footnote
omitted.) Strickland v. State, 267 Ga. App. 610, 611 (600 SE2d 693) (2004).2
In this case, Miller testified that she bit and scratched Head to escape a sexual
assault and that she damaged Solis’ home and broke into it in order to escape her
assailant. Miller’s counsel orally requested and the trial court gave the jury a charge
on justification, but it pertained specifically to the use of force against another person
and did not address justification for other criminal acts such as trespass.3 The trial
2
The court was not required to instruct the jury on the definition of
“affirmative defense” absent a written request when, as in this case, the charge as a
whole would not mislead a jury of average intelligence as to what was required to
prove the affirmative defense of justification. See Redd v. State, 232 Ga. App. 666,
667 (2) (b) (502 SE2d 467) (1998).
3
The court gave the following charge:
A person is justified in threatening or using force against another person
when and to the extent that she reasonably believes that such threat or
force is necessary to defend herself or a third person against the other’s
imminent use of unlawful force. A person is justified in using force that
is intended or likely to cause death or great bodily harm only if that
person reasonably believes that such force is necessary to prevent death
or great bodily injury to herself or a third person or to prevent the
commission of a forcible felony. The State has the burden of proving
beyond a reasonable doubt that the defendant was not justified.
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court, in its order denying Miller’s motion for a new trial, explained that it was not
required to give a justification charge with respect to the criminal trespass counts
because the evidence was insufficient to support such a charge. The court explained:
Here, upon leaving Mr. Head’s residence, Ms. Miller had options
available to her apart from breaking into a neighbor’s residence: she
could have called the police, she could have requested entry to a nearby
house to call the police, or she could have just run down the street and
hid. There was no immediate threat such that she needed to damage the
air conditioner and break into Ms. Solis’ residence.
Indeed, Solis’ home was a mere 55 feet away from Head’s home. In the time it took
Miller to rip an air conditioning unit from the window and break in, her allegedly
pursuing assailants should have been able to catch her. More significantly, however,
Miller’s own testimony supported the court’s findings. She admitted that, when she
entered Solis’ home, her assailants had stopped chasing her and had gone home.
Given this evidence, the court did not err in declining to give a charge on justification
as it pertained to the criminal trespass counts. See Moon v. State, 244 Ga. App. 443,
446 (3) (535 SE2d 771) (2000) (The trial court did not err in failing to charge, sua
sponte, on justification where the evidence showed that the defendant, a drug addict,
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had options available to him other than stealing a car in order to drive to a clinic to
get his medication.).
2. Miller contends that her trial counsel was ineffective because he did not
request the jury charges discussed in Division 1, supra. However, where the evidence
does not support the giving of a charge, counsel’s failure to request the charge does
not amount to ineffective assistance. See, e.g., Alston v. State, 277 Ga. App. 117,
117-118 (1) (a) (625 SE2d 475) (2005) (withdrawal of request for jury charge on an
affirmative defense was not ineffective assistance where the evidence did not support
such a defense); Davis v. State, 209 Ga. App. 187, 190 (6) (433 SE2d 366) (1993)
(counsel was not ineffective based on jury charge where defendant failed to show that
the charges in question were erroneous). Consequently, the trial court did not err in
denying Miller’s claim of ineffective assistance of counsel.
Judgment affirmed. Dillard and McFadden, JJ., concur.
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