Thompson v. State , 277 Ga. 102 ( 2003 )

Fletcher, Chief Justice.

We granted certiorari to the Court of Appeals of Georgia¹ to consider the proper scope of appellate review of the sufficiency of the evidence to establish venue. We hold that, because venue is an essential element of the State’s case and must be decided by a jury, only evidence presented to the jury may be considered on appeal. Because the Court of Appeals relied upon material not presented to the jury, and because the evidence at trial was insufficient to establish venue for his misdemeanor conviction, we reverse in part.

A Houston County jury convicted Phillip E. Thompson of felony child molestation and misdemeanor sexual battery based on two incidents involving his 13-year-old daughter. Thompson appealed, contending that venue was not properly established.² The evidence at trial showed that one of the incidents occurred at Thompson’s residence and the other occurred at his place of business. In concluding that there was sufficient evidence of venue as to each incident, the Court of Appeals relied upon two statements made in Thompson’s written motion for reconsideration of bond. The motion, filed on Thompson’s behalf by his counsel, stated that Thompson had been a Houston County resident all his life and that his place of business was in Houston County.

1. The standard for review of the sufficiency of the evidence to support a criminal conviction is whether “[a]fter 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.”³ The review of the sufficiency of the evidence to support venue is no different because venue is an essential element that must be proven beyond a reasonable doubt in every criminal trial.⁴ In considering this standard, this Court and the Court of Appeals have consistently stated that the evidentiary review is limited to the evidence actually presented to the jury.⁵ Other appellate courts have affirmatively rejected arguments that evidence outside the trial record should be considered.⁶ The Court of Appeals, however, relied upon evidence that was never presented to the jury in order to conclude that evidence of venue was sufficient. By relying on materials never admitted into evidence, the Court of Appeals failed to conduct a proper sufficiency review.

2. The State contends that the statements made in Thompson’s bond request constituted admissions in judicio, and therefore, no further evidence of venue was required. A criminal defendant may expressly authorize factual stipulations that will obviate the need for proof.⁷ However, the record in this case is devoid of any evidence that the statements made in connection with the request for bond were intended to operate as a stipulation regarding venue. Because no valid stipulation regarding venue existed, the State was required to introduce evidence at trial on the issue.

3. We have reviewed the evidence of venue presented at trial, and conclude that the evidence was sufficient regarding the venue of the child molestation charge. The evidence showed that the act supporting the child molestation charge occurred at Thompson’s residence and there was evidence that the residence was in Houston County. The evidence with regard to the sexual battery charge is insufficient however. The victim testified that the act leading to this charge occurred at Thompson’s place of business, but there was no evidence at all as to the location of the business. Therefore, we must reverse Thompson’s conviction for sexual battery.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Benham and Carley, JJ, who concur in part and dissent in part.

1 Thompson v. State, 257 Ga. App. 426 (2) (571 SE2d 158) (2002).

2 Thompson was sentenced to twenty years, eighteen to serve, on the felony count, and a consecutive one-year term on the misdemeanor count.

3 Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

4 Jones v. State, 272 Ga. 900, 902-903 (537 SE2d 80) (2000).

5 See, e.g., Garrett v. State, 276 Ga. 556, 557 (580 SE2d 236) (2003) (“the evidence at trial was sufficient for a reasonable trier of fact to have found [the defendant] guilty”) (emphasis supplied); Miller v. State, 275 Ga. 730, 731 (571 SE2d 788) (2002) (“the evidence introduced at trial . . . , was sufficient to enable rational triers of fact to find appellant guilty”); Rhode v. State, 274 Ga. 377, 378 (552 SE2d 855) (2001) (reviewing “the evidence produced at trial”); Goss v. State, 247 Ga. App. 520, 520 (544 SE2d 206) (2002) (in reviewing sufficiency of evidence, “we review evidence presented at trial”).

6 See State v. Adams, 554 N.W.2d 686, 691 (Iowa 1996) (“for purposes of reviewing the sufficiency of the evidence to support the judgment of conviction, we confine our consideration to the trial record”); Shepler v. State, 412 N.E.2d 62, 67 (Ind. 1980) (cannot consider evidence presented at suppression hearing in reviewing sufficiency of evidence to convict); Chambers v. State, 711 S.W.2d 240 (Tex. Ct. Crim. App. 1986) (“[w]hat is not in evidence is irrelevant to a determination of the sufficiency of the evidence”); Hillman v. State, 72 S.W.2d 607, 608 (Tex. Ct. Crim. App. 1934) (cannot consider statement of facts in companion case in reviewing sufficiency of evidence of cause of death); United States v. Lopez-Ramirez, 68 F.3d 438, 441 n.3 (11th Cir. 1995) (cannot consider defendant’s statements at sentencing in determining sufficiency of evidence); United States v. Escobar, 674 F.2d 469, 477 (5th Cir. 1982) (cannot consider testimony made outside jury’s presence in reviewing sufficiency of evidence).

7 Farmer v. State, 100 Ga. 41, 45-46 (28 SE 26) (1896); In re Glenn, 200 Ga. App. 276, 277 (407 SE2d 428) (1991). See also Richards v. State, 269 Ga. 483 (500 SE2d 581) (1998); Sanders v. State, 252 Ga. App. 609, 613-614 (556 SE2d 505) (2001) (defendant may be tried wholly on stipulated facts).