X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Watkins, Judge. Barry Rutherford appeals from an order of the Superior Court of Candler County denying his amended motion for new trial after a jury found him guilty of one count each of rape, kidnapping, family violence aggravated assault, and family violence battery.[1] Rutherford argues that the evidence was insufficient to support his convictions, that the trial court plainly erred in admitting into evidence letters that he had purportedly sent from jail, and that his trial counsel was ineffective. For the reasons set forth infra, we affirm. Viewed in the light most favorable to the verdict,[2] the evidence shows that, on the evening of January 4, 2019, Rutherford lured his estranged wife, J. M., away from her family’s home and into his vehicle, where he drove down dirt roads, beating her repeatedly and raping her, before he dropped her off in the area of her residence. J. M. testified that she and Rutherford had begun dating in February 2018 and that he was already abusive and controlling before they married in October 2018. J. M. left the marital home around Christmas of 2018 to stay with her mother. On the evening in question, J. M. was visiting her sister, who lived a few doors down from her mother’s home. After J. M. missed a number of calls from Rutherford, he demanded that she stay on the phone with him until he arrived at her sister’s residence. When he arrived there, Rutherford told J. M. that he was not going to take her anywhere or touch her, but that he just wanted to talk. While they sat in Rutherford’s vehicle, J. M. told him that she no longer wanted to be with him. Rutherford then began punching her in the face, beginning what ultimately resulted in a four-hour attack. Rutherford drove her to multiple locations, while beating her and making her take off her clothes and get into the backseat of his vehicle. After raping her, Rutherford left a naked and beaten J. M. in the dark on a dirt road before driving back minutes later and forcing her back into his car. He dropped her off near her home and fled, telling her not to call the police. Upon seeing J. M. crying, bloody, and dirty, her sister immediately contacted their mother, who called 911. Deputy Brandon McGahee was the first responder on the scene, and the jury viewed the footage from his body camera. McGahee observed that J. M.’s shirt was inside out, that she was visibly shaking, and that she had significant swelling to her face. After J. M. was transported to the hospital, she told the deputy that she had sex with Rutherford so he would stop beating her. J. M. received a sexual assault exam the next day around noon. Rutherford was ultimately arrested in Atlanta a couple of weeks later, and police obtained DNA evidence from buccal swabs from his cheek, which matched DNA taken from J. M.’s vaginal swabs. At trial, the State presented testimony from J. M., J. M.’s sister, various medical personnel, police officers, the sexual assault nurse examiner (“SANE”), and an expert witness in sexual assault trauma. After the jury found Rutherford guilty on all four charged counts, Rutherford filed an amended motion for new trial. Following an evidentiary hearing, the trial court denied the motion. This appeal followed. 1. Rutherford argues that the evidence was insufficient to support his convictions for rape and family violence aggravated assault.[3] When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.[4] (a) Rutherford contends that the evidence of rape was insufficient because there was no evidence in J. M.’s medical records indicating a sexual assault and because J. M. delayed reporting the rape, admitted at trial to having consensual sex with him four days before the date in question, and testified that she had sex “willingly” with him on the date in question so that he would stop beating her. “A person commits the offense of rape when he has carnal knowledge of [a] female forcibly and against her will[.]“[5] “Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.”[6] “It is well established that a victim’s testimony, without more, is sufficient to sustain a conviction for rape.”[7] Here, J. M. testified that Rutherford drove her down a dirt road against her will and forced her back into the car when she attempted to escape, all while beating her with his fists and telling her that he was going to disfigure her face so that no one else would want her. After forcing her to take off her clothes, Rutherford got on top of J. M. in the backseat of the car and told her, “If you don’t f*ck me right now, I’m going to keep beating your a***.” When the prosecutor asked her, “[w]hy did you have sex with him?” J. M. testified in response: “So he would stop hitting me.” J. M. also testified to a pattern of abuse and control leading up to the charged offenses. On cross-examination, defense counsel asked J. M. why she did not initially report the rape to the responding officers and medical personnel. J. M. explained that she did report to the hospital doctors that she and Rutherford had sex during the encounter, but that she “didn’t know that was considered rape, what he did, because [she] opened [her] legs.” Further, the very next morning, she told the investigating officer that she had sex with Rutherford so that he would stop beating her. As a result of this report, the officer set her up with the SANE exam the same day. J. M.’s testimony alone is sufficient to sustain Rutherford’s rape conviction. “[F]orce may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.”[8] Further, “[t]o the extent that there was inconsistent testimony at trial, resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court.”[9] Additionally, the State introduced expert testimony that it was not uncommon for sexual assault trauma survivors to have “disjointed” memories and to remember additional details later, when they were no longer in “survival mode.” In light of the foregoing, as well as the DNA evidence mentioned above, we hold that the evidence was sufficient to support Rutherford’s rape conviction. (b) Rutherford also challenges the sufficiency of the evidence to support his conviction for family violence aggravated assault because J. M. did not tell Deputy McGahee she had been choked, McGahee did not see signs of trauma on her neck, and neither the EMS paramedic nor the SANE noticed any neck injuries. Rutherford was indicted and convicted under OCGA § 16-5-21 (a) (3),[10] which defines aggravated assault as an assault “[w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation[.]” In this context, “ ‘[s]trangulation’ means impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person.”[11] “[T]he use of hands to choke a victim can satisfy the deadly weapon or dangerous object element of aggravated assault.”[12] On direct examination, the prosecutor asked J. M. if Rutherford “put his hands around [her] throat at any point in time in this melee[.]” J. M. responded, “ I can’t remember. I’m pretty sure he did though.” While the EMS and hospital documents do not contain any reports of visible injury to J. M.’s neck, various medical personnel testified that it was possible for marks or bruising from strangulation to come later. The SANE, who examined J. M. sometime after noon on January 5, noticed that J. M. had a “spot” on her neck. The SANE testified further that, according to the checklist the SANE had filled out prior to the sexual assault exam, J. M. reported that Rutherford “used his fist, he was hitting, kicking, grabbing, pushing, punching, [and] strangulation or choking[.]“[13] “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.”[14] Here, the indictment alleged that Rutherford committed aggravated assault by assaulting J. M. “with his hand, an object which when used offensively against a person is likely to result in strangulation by squeezing her throat[.]“[15] “Thus, the State was . . . required to show that [Rutherford] used his hands in a manner likely to result in strangulation.”[16] Here, the State introduced evidence that J. M. was pretty sure Rutherford put his hands around her throat during the attack and that she reported “strangulation or choking” to the SANE the day after the attack. Viewed in the light most favorable to the verdict, the evidence is sufficient to support Rutherford’s aggravated assault conviction.[17] 2. Rutherford contends that the trial court plainly erred in admitting into evidence letters that he purportedly sent from jail. Specifically, he argues that the State failed to lay a proper foundation for the admission of the letters such as the official jail policy concerning the screening of inmates’ mail, further explanation regarding the witness’s recognition of Rutherford’s handwriting, and testimony regarding the dates the letters were intercepted and when Rutherford was incarcerated. As Rutherford concedes, he did not object to the admission of the letters; thus, we review only for plain error.[18] There are four prongs in the test for plain error. First, there must be an error or defect _ some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.[19] Here, the county jail supervisor testified that she “overs[aw] anything having to do with the jail[,]” including “ jail mail[,]” and that it was the policy to screen all ingoing and outgoing mail (other than legal mail). She testified that she recognized Rutherford’s handwriting, which was “ pretty distinctive,” on two letters that were intercepted before mailing out and admitted into evidence at trial. One of the letters was dated February 20, 2021, and the other letter was undated. Over Rutherford’s objection, the supervisor noted that Rutherford had not continuously been in jail between January 2019 (when he was arrested on the instant offenses) and February 2021. OCGA § 24-9-901 (a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One example conforming to this requirement is “[n]onexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation[.]“[20] Rutherford has failed to show error, much less clear or obvious error. The jail supervisor testified that she was familiar with Rutherford’s handwriting, and the letters referenced information concerning the case, specifically instructing the recipient on how to coach J. M. to testify in his favor. Accordingly, the State provided sufficient evidence to establish a prima facie case that Rutherford wrote and attempted to send the letters.[21] 3. Finally, Rutherford argues that he was denied effective assistance of counsel because his trial attorney failed to impeach the victim’s testimony with her own affidavit and admitted in closing argument that J. M. had been beaten, which “effectively amounted to a guilty plea” to the charges of assault and battery. To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel’s performance was deficient and that the deficient performance resulted in prejudice to the defendant. To satisfy the deficiency prong, a defendant must show that trial counsel performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. This requires a defendant to overcome the strong presumption that trial counsel’s performance was adequate. To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel’s deficient performance, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.[22] (a) The charged offenses were alleged to have occurred in January 2019, and Rutherford was arrested later that month. As part of his motion for new trial, Rutherford introduced a February 2019 affidavit from J. M., in which she recanted her allegations and requested that the charges against him be dropped. Prior to trial, trial counsel filed an “extraordinary motion in limine,” in which he requested an ex parte hearing to determine how to proceed as he had been presented with a “certain document[,]” the veracity of which was in question. At the hearing on Rutherford’s motion for new trial, trial counsel testified that he filed the motion in limine after the prosecutor’s office advised that J. M. had been paid to execute the affidavit recanting her accusations and because J. M. had refused to submit to an interview with defense counsel.[23] Counsel testified further: So now I’ve got a Hobson’s choice. The document has the whiff of fraud about it, which as an attorney, I cannot put a fraudulent document into court. However, I can’t also directly confront the witness before court to verify completely that it’s a fraudulent document. [Y]es, it would have been good to cross-examine the witness on her change of story. However, it could also be taken that this document has nothing to do with whether or not a rape had occurred. What I mean by that is this, 12 . . . jurors bringing their common sense to the courtroom and listening to the evidence in the courtroom could very well just say this is shenanigans that goes on whenever these kinds of allegations arise. And now we’ve got a document out there that causes just as bad a light on my client as it does on the alleged victim. And so at this point, given the fact that I still think it’s a fraudulently procured document, I wasn’t going to touch it. “The extent of crossexamination is a strategic and tactical decision. Decisions about crossexamination do not amount to deficient performance unless they are so unreasonable that no competent attorney would have made them under similar circumstances.”[24] In light of trial counsel’s concerns that J. M. would testify that she was paid to execute the affidavit recanting her accusations and that such testimony would cast a negative light on Rutherford, counsel’s decision not to impeach J. M. with the affidavit was “a strategic or tactical decision by trial counsel and therefore does not constitute ineffective assistance of counsel absent a contrary showing.”[25] Because Rutherford has failed to show deficient performance, we need not address the prejudice prong.[26] (b) Rutherford also argues that trial counsel was ineffective in his closing argument when he conceded that J. M. was “beaten.” During closing argument, counsel argued that the State had failed to prove beyond a reasonable doubt the charges for rape, kidnapping, and aggravated assault. He then stated, “I never denied it and won’t ever deny it. She was beaten.” Counsel then argued that J. M. had a motive to lie and concluded by arguing that the evidence was lacking on the rape, kidnapping, and aggravated assault charges. At the motion for new trial hearing, counsel explained the battery charge was the only misdemeanor within the indictment. Counsel testified further: What you had there were facts that were put into evidence that showed [J. M.] was beaten. Now, you couldn’t get away from that. You have to make an argument to a jury that is logical that a jury can follow, and you have to sway the jury to what you think the ultimate issue is, which is to keep [Rutherford] from getting a life without parole sentence which is where I was headed. And that’s what I did. [T]actical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them. Here, trial counsel’s strategic decision to basically admit the conduct underlying the [battery] allegations against [Rutherford], and to argue that his actions amounted at most to the [misdemeanor offense], was eminently reasonable.[27] “Because this portion of trial counsel’s closing argument was a legitimate trial strategy or tactic, it fell within the bounds of reasonable professional conduct.”[28] Judgment affirmed. Barnes, P. J., and Land, J., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
May 23, 2024
London

Celebrate outstanding achievement in law firms, chambers, in-house legal departments and alternative business structures.


Learn More
June 27, 2024
New York

Consulting Magazine identifies consultants that have the biggest impact on their clients, firms and the profession.


Learn More

Company Description CourtLaw Injury Lawyers is an established Personal Injury Law Firm with its primary office located in Perth Amboy, New J...


Apply Now ›

Black Owl Recruiting is looking for a number of qualified applicants to fill positions for a highly reputable client. Recent experience work...


Apply Now ›

McManimon, Scotland & Baumann, LLC is seeking talented and motivated Associate Attorneys with 3-7 years of experience working closely wi...


Apply Now ›
04/29/2024
The National Law Journal

Professional Announcement


View Announcement ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›