In State v. Robertson, the Georgia Court of Appeals affirmed the grant of the defendant’s motion for new trial after the defendant had been convicted of two counts of rape and two counts of aggravated sodomy.
The Court held that the trial court properly found that the State failed to prove venue in Fulton County.
The defendant and the alleged victim were riding in a car in Cobb County. At some point, he told the 16 year-old girl that he wanted to take her to “see the lights of Atlanta.” She testified that they drove for “a while,” but could not remember whether they drove in the direction of Atlanta. She alleged that during this trip in the car the defendant raped her. She stated that afterwards, he took her back to her home in Cobb County.
The Court noted that circumstantial evidence may be sufficient to prove venue, but held that here the evidence was “insufficient to exclude every reasonable hypothesis that Robertson and the victim never entered Fulton County” because of the lack of evidence concerning the counties in which Atlanta is located.
The Marietta officer who investigated the case said that she believed the crimes occurred in Atlanta, and that Atlanta lies to some extent in Fulton County. An Atlanta police detective testified that Piedmont Park is in both Atlanta and Fulton County. The Court stated that on the record, there was evidence that some part of Atlanta is in Fulton County, but the State did not show that if the defendant drove into Atlanta, he necessarily also drove into Fulton County. Testimony was sufficient to show that Piedmont Park is in Fulton County, but not sufficient to show that the defendant and the victim were ever in Piedmont Park. The victim testified that she was not sure that she was in Piedmont Park on the night in question or if a police officer had suggested that location to her.
The Marietta officer concluded that the victim and the defendant were in Piedmont Park because the victim mentioned driving by landmarks like Turner Field, but she did not say that she had been in Piedmont Park. The officer could not explain how she excluded the possibility that the crime might have occurred in another park.
The Court held that the circumstances under which the Marietta officer identified Piedmont Park as an actual or possible crime scene were not sufficient to exclude other potential locations. The Court noted that the officer’s opinion that the crimes took place in Piedmont Park carried no more weight than the circumstantial evidence on which that opinion was based.
Thus, the Court of Appeals concluded that the trial court did not err in granting a new trial based on the State’s failure to prove venue in Fulton County.
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The Court also found that while it was error for the trial court not to notify the parties until after…