Edward Eugene Davis v. State ( 2023 )

THIRD DIVISION
DOYLE, P. J.,
GOBEIL, J., and SENIOR JUDGE FULLER
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.
https://www.gaappeals.us/rules
December 22, 2023
In the Court of Appeals of Georgia
A23A1751. DAVIS v. THE STATE.
FULLER, Senior Judge.
A jury found Edward Eugene Davis guilty of rape, aggravated assault, and false
imprisonment. Following the denial of his motion for new trial, Davis appeals, arguing
that his convictions for rape and aggravated assault were repugnant in light of his
acquittal on other charges. He also challenges the sufficiency of the evidence
supporting his false imprisonment conviction, and he contends the trial court erred
in its jury instruction on that crime. Finally, he contends that the State’s closing
argument was improper. For reasons that follow, we affirm.
Viewed favorably to the verdict,1 the evidence shows that, on August 24, 2020,
the victim – who was homeless – was walking toward the Homeless Authority, pulling
her suitcases, when Davis approached her and offered to help. The two proceeded to
the Homeless Authority, but it was too late in the day to find the victim housing, and
she was asked to return the next day. Davis then told the victim she could stay with
him and his girlfriend.
The victim walked with Davis to his tent at an encampment. Although no
girlfriend was present, the victim entered the tent with Davis. Once inside, Davis
began drinking. The two began a cordial conversation, but “things [took] a turn[.]”
Davis held a knife to the victim’s throat and warned her not to make a sound. Davis
then pushed the victim backwards and choked her with one hand while removing her
clothes with his other hand. Davis choked and raped the victim multiple times. He
also placed his mouth on the victim’s vagina. At one point between assaults, Davis left
the tent to buy more beer; but the victim was afraid to leave because she did not know
how long Davis would be gone. Later, Davis approached the victim from behind as if
to penetrate her anally, and the victim cried and begged him to stop. The victim then
1
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
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asked to go to the bathroom, grabbed her purse, and fled, leaving behind her suitcases,
which contained all of her belongings.
The next morning, the victim returned to the Homeless Authority, and she told
one of the workers about the assault. Police were called and upon arrival discovered
the victim, who was shaking and crying. The victim told the police where to find the
encampment and described both Davis and his tent. Police traveled to the campsite
and found the victim’s suitcases. Davis was still inside the tent in a state of undress.
The victim was taken to a rape crisis center where she underwent a forensic
examination. The nurse who examined the victim noted “redness and bruising” on
her neck, arms, hands, back, legs, and abdomen. A pelvic exam showed bruising and
an ulceration on the victim’s genitalia.
Davis was arrested and charged with three counts of rape, one count of
aggravated sodomy for placing his mouth on the victim’s vagina, two counts of
aggravated assault by placing his hands around the victim’s neck and applying
pressure, one count of aggravated assault for brandishing a knife, and one count of
false imprisonment. At trial, Davis took the stand and denied raping, assaulting, or
imprisoning the victim; according to Davis, the two had consensual sexual relations.
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Based on the evidence, the jury found Davis guilty of one count of rape, one count of
aggravated assault by choking, and false imprisonment. The jury acquitted him of the
remaining charges.
1. On appeal, Davis contends that his convictions for rape and aggravated
assault are “repugnant verdicts” in light of his acquittals on the additional counts of
those same offenses. Although Davis was charged with multiple separate counts of
those offenses, the indictment used identical language for each rape charge and
identical language for each aggravated assault charge. According to Davis, the fact the
jury acquitted him of the exact same charge precludes a finding of guilt on any charge.
We disagree.
The crux of Davis’s argument appears to be that the verdicts are inherently
contradictory. As the Supreme Court acknowledged in McElrath v. State, there are
three main categories of contradictory verdicts: (1) inconsistent verdicts, (2) mutually
exclusive verdicts, and (3) repugnant verdicts. McElrath v. State, 308 Ga. 104, 108 (2)
(839 SE2d 573) (2020). At issue here is whether Davis’s convictions were repugnant.2
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The verdict is not mutually exclusive, which occurs in situations where a
defendant is found guilty of two offenses that cannot legally exist simultaneously.
McElrath, 308 Ga. at 110 (2) (b).
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A truly repugnant verdict is rare. State v. Owens, 312 Ga. 212, 217 (1) (b) (862
SE2d 125) (2021). Repugnant verdicts “occur when, in order to find the defendant not
guilty on one count and guilty on another, the jury must make affirmative findings
shown on the record that cannot logically or legally exist at the same time.” McElrath,
308 Ga. at 111 (2) (c) (emphasis omitted). For example, in McElrath, the defendant
stabbed his mother to death, and he was charged with both malice murder and felony
murder. The jury found the defendant legally insane with respect to malice murder
and acquitted him of that offense, but determined that he was guilty but mentally ill
with respect to felony murder. Because it was impossible to have different mental
states at the same time, the Supreme Court found the verdicts repugnant. Id. at 111-
112 (2) (c).
Much like a repugnant verdict, an inconsistent verdict involves an
alleged inconsistency between guilty and not guilty verdicts against a
defendant or defendants that cannot be logically reconciled. However,
because the inconsistent verdict rule has been abolished, a defendant
cannot attack as inconsistent a jury verdict of guilty on one count and not
guilty on a different count as a legitimate means of having his or her
conviction reversed. This is the case because it is not generally within the
court’s power to make inquiries into the jury’s deliberations, or to
speculate about the reasons for any inconsistency between guilty and not
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guilty verdicts. Appellate courts cannot know and should not speculate
why a jury acquitted on one offense and convicted on another offense.
The reason could be an error by the jury in its consideration or it could
be mistake, compromise, or lenity. Stated another way, it is imprudent
and unworkable to allow criminal defendants to challenge inconsistent
verdicts on the ground that in their case the verdict was not the product
of lenity, but of some error that worked against them. Such an
individualized assessment of the reason for the inconsistency would be
based either on pure speculation, or would require inquiries into the
jury’s deliberations that the courts generally will not undertake.
Carter v. State, 298 Ga. 867, 868-869 (785 SE2d 274) (2016) (citations and
punctuation omitted).
To distinguish between a repugnant versus merely inconsistent verdict, we
ascertain whether the jury’s verdict plainly and palpably demonstrates the jury’s
reasoning in reaching an illogical conclusion. If any speculation at all is required, the
verdict is merely inconsistent rather than repugnant. See Carter, supra. And a verdict
will not be found repugnant simply “because it involves a finding of guilt and an
acquittal on the same offense based on the same set of facts[.]” Smith v. State, 348 Ga.
App. 643, 646 (1) (824 SE2d 382) (2019).
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Contrary to Davis’s contention on appeal, the verdicts against him – although
arguably inconsistent – were not repugnant. The verdict here does not plainly
demonstrate the jury’s reasoning in finding Davis guilty of one count of rape and
aggravated assault while acquitting him of the remaining charges of rape and
aggravated assault. Perhaps the jury felt that compromise was in order, or perhaps the
jury misapprehended the law. Where, as here, we are left to speculate regarding the
jury’s rationale, the verdict will be deemed inconsistent rather than repugnant. See
Wright v. State, 365 Ga. App. 415, 423 (1) (878 SE2d 751) (2022). Accordingly, this
argument presents no basis for reversal. See id.
2. Davis also challenges the sufficiency of the evidence supporting his
conviction for false imprisonment. According to Davis, there was no evidence that he
physically restrained the victim; rather, “any physical actions restraining the victim
were acts constituting the elements of the offenses of rape and aggravated assault.”
When we consider the legal sufficiency of the evidence, we view
the evidence in the light most favorable to the verdict and inquire only
whether any rational trier of fact might find beyond a reasonable doubt
that the defendant is guilty of the crimes of which he was convicted.
Under this review, we must put aside any questions about conflicting
evidence, the credibility of witnesses, or the weight of the evidence,
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leaving the resolution of such things to the discretion of the trier of fact.
Accordingly, the jury’s verdict will be upheld as long as there is some
competent evidence, even though contradicted, to support each fact
necessary to make out the State’s case.
Wilkey v. State, 368 Ga. App. 238, 240 (1) (889 SE2d 427) (2023) (footnotes and
punctuation omitted).
“A person commits the offense of false imprisonment when, in violation of the
personal liberty of another, he arrests, confines, or detains such person without legal
authority.” OCGA § 16-5-41 (a). “As the statute does not require that the
imprisonment be for a specific length of time, a brief detention can constitute false
imprisonment.” Stewart v. State, 267 Ga. App. 100, 102 (2) (598 SE2d 837) (2004).
Here, the victim testified that Davis pulled a knife on her and threatened to kill her,
and that she was afraid to leave the tent. Under these facts, the jury was authorized to
find Davis guilty of false imprisonment. See Ellis v. State, 316 Ga. App. 352, 357 (1) (d)
(729 SE2d 492) (2012).
In a related sub-argument, Davis asserts that “[t]he State ‘used up’ the
evidence establishing false imprisonment in proving the other charges[.]” This
appears to be a merger argument. See Townsend v. State, 357 Ga. App. 111, 114 (1) (a)
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(848 SE2d 210) (2020) (“[T]wo offenses will merge as a matter of fact if one of them
is established by proof of the same or less than all the facts required to prove the other.
The key question is whether the State ‘used up’ its evidence in proving the crime.”)
(citation and punctuation omitted). Because the offenses of rape and aggravated
assault have different elements than the crime of false imprisonment, the offenses did
not merge. See Turner v. State, 253 Ga. App. 760, 763 (5) (560 SE2d 539) (2002)
(holding that false imprisonment did not merge with child molestation charge).
3. Davis asserts that the trial court failed to properly charge the jury on the
offense of false imprisonment. The trial court instructed jurors that “[a] person
commits the offense of False Imprisonment when, in violation of the . . . personal
liberty of another, he confines or detains such person without legal authority.” In the
indictment, however, Davis was charged with false imprisonment for confining the
victim. According to Davis, based on the trial court’s instruction, the jury could have
convicted Davis for detaining rather than confining the victim.
Because Davis did not object to the jury instructions at trial, we consider only
whether the court’s jury instruction constituted plain error. Hughes v. State, 310 Ga.
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453, 456 (2) (a) (851 SE2d 580) (2020). Under this stringent standard, reversal is
authorized only if:
[T]he error was obvious, the instruction likely affected the outcome of
the proceedings, and the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. On “plain error” review, the
presence of actual legal error is not enough, as the jury instruction in
question must have an obvious defect rather than a merely arguable
defect.
Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012).
There is no plain error here. As a threshold matter, we question whether there
is a meaningful distinction between the words “confine” and “detain.” See, e. g.,
State v. Coleman, 306 Ga. 529, 531 (832 SE2d 389) (2019) (noting that dictionaries use
the words “confine” or confinement” to define “detain”). In any event, the trial
court’s instruction was a correct statement of the law and thus did not constitute plain
error. See Ferguson v. State, 322 Ga. App. 565, 568 (2) (b) (745 SE2d 784) (2013) (no
plain error where charge given was a correct statement of the law).
4. Finally, Davis contends that the trial court erred in permitting the prosecutor
to argue about Davis’s propensity for violence in closing argument. When Davis took
the stand, the State tendered a copy of his prior conviction for aggravated assault for
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impeachment purposes. The trial court instructed jurors that the evidence was being
offered for the limited purpose of attacking Davis’s credibility. Nevertheless, during
closing argument, the prosecutor said:
[R]emember that [Davis] was sentenced in February of 2020 for the
offense of Aggravated Assault. And in August of 2020, six months later,
[the victim] accuses him of Aggravated Assault. So it’s not hard to
believe he did it again.
Davis asserts that this argument was improper, and we agree. Because Davis’s
prior aggravated assault conviction was offered for impeachment purposes, it could
not be used to establish his propensity to commit crimes. See Parker v. State, 339 Ga.
App. 285, 293 (3) (793 SE2d 173) (2016). The State thus erred in arguing that the prior
aggravated assault showed Davis had a propensity to commit the offenses for which
he was on trial. See id.For the error to be reversible, however, Davis must show harm as well as error.
See Wright v. State, 319 Ga. App. 723, 731 (3) (a) (738 SE2d 310) (2013). We find no
harm here. Davis does not challenge the admission of his prior conviction for
impeachment purposes. Accordingly, the jury was already aware of the conviction,
and the trial court instructed the jury regarding the limited use of the conviction.
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Although the prosecutor strayed beyond that limited use in closing argument, the
improper comment was fleeting. Under these circumstances, we find it highly
probable that the improper argument did not contribute to the verdict. See Arrington
v. State, 286 Ga. 335, 345-346 (16 ) (a) (687 SE2d 438) (2009).
Judgment affirmed. Doyle, P. J., and Gobeil, J., concur.
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