265 Ga. App. 760 - Tompkins v. State

RUFFIN, Presiding Judge,

¶1concurring specially.

¶2I agree with the result reached by the majority, as well as the reasoning in Division 2. However, because I cannot agree with the majority’s analysis in Division 1,1 concur specially.

¶3In Division 1, the majority concludes that, although the State failed to prove venue in this case, such failure does not require reversal because Tompkins never contested venue at the stipulated bench trial. According to the majority, Tompkins waived any right to challenge on appeal the sufficiency of the evidence supporting venue. I disagree.

¶4Tompkins pled not guilty to the two child molestation charges of which he was later convicted. This “act of pleading not guilty to an indictment is considered by law to be an irrefutable challenge to all the allegations set forth therein, including those allegations pertaining to venue.”20 Like all other material allegations in the indictment, venue must be proven beyond a reasonable doubt.21

¶5 *768The State did not present evidence of venue at the bench trial.22 And although Tompkins stipulated to a bench trial based upon evidentiary summaries from both sides, he did not concede that the State’s evidence was sufficient to find him guilty. Explaining the agreed-upon process for the trial, Tompkins’ counsel noted that the prosecution would summarize its evidence for the court, followed by a summary from the defense, and the trial court would then decide whether Tompkins “remains not guilty or is found guilty.” During its presentation, the defense clearly challenged the evidence proffered by the State.

¶6The majority asserts that Tompkins only contested below the timeliness of the charges and the victim’s veracity, thus leading the prosecution and the court to believe that he did not challenge venue. In my opinion, however, Tompkins’ challenge to the State’s evidence extended to all material elements of the crimes charged, including venue. The cases relied upon by the majority, Sanders v. State23 and Scott v. State,24 do not require a different result. In Sanders, we concluded that the defendant waived any challenge to venue on appeal by stipulating at the trial level that all elements of the offense, including venue, had been proven.25 We similarly determined in Scott that, with the exception of an issue regarding the suppression of certain evidence, defense counsel had led the trial court to believe that the defense conceded the State had met its burden of proof.26 Under those circumstances, the defendant waived his challenge to the sufficiency of the evidence.27

¶7Without dispute, Tompkins focused below on his statute of limitation defense and the credibility of witnesses. Venue, however, remained a key element of the State’s case. And although a defendant “may expressly authorize factual stipulations that will obviate the need for proof,”28 I cannot conclude that a valid stipulation existed as to venue. Unlike in Sanders and Scott, Tompkins did not *769expressly concede, or lead the trial court to believe he conceded, that the State met its burden of proof here. Rather, he specifically attacked the State’s evidence as to the charges. The State, therefore, was required to introduce evidence at trial sufficient to prove venue.29 To find othexwise unreasonably extends the rulings in Sanders and Scott and relieves the State of its burden of proof.

Decided February 23, 2004Brian Steel, Stephen B. Murrin, Michael R. Duponte, for appellant.Patrick H. Head, District Attorney, Amelia G. Pray, Lori A. Zamberletti, Assistant District Attorneys, for appellee.

¶8I believe that the State’s failure to prove venue requires reversal in this case. The failure to properly establish venue, however, does not prevent a retrial.30 As noted by our Supreme Court, if we reverse a criminal conviction “because of an evidentiary insufficiency concerning the procedural propriety of laying venue within a particular forum, and not because of an evidentiary insufficiency concerning the accused’s guilt, retrial is not barred by the Double Jeopardy Clause.”31 Accordingly, although I disagree with Division 1 of the opinion, I agree with the majority’s ultimate conclusion that this case must be remanded for a new trial.

¶9I am authorized to state that Presiding Judge Blackburn, Judge Barnes and Judge Phipps join in this special concurrence.

¶10Jones v. State, 272 Ga. 900, 902 (2) (537 SE2d 80) (2000).

¶11 See id. at 901.

¶12 On appeal, the State contends that evidence presented at Tompkins’ prior jury trial, which ended in a mistrial, can be used to establish venue for purposes of the bench trial. It has cited no authority for this novel argument. Cf. Thompson v. State, 277 Ga. 102, 103 (1) (586 SE2d 231) (2003) (in determining whether the State presented sufficient evidence to support venue, appellate courts are limited to reviewing the evidence actually presented to the factfinder).

¶13252 Ga. App. 609 (556 SE2d 505) (2001).

¶14201 Ga. App. 162 (410 SE2d 362) (1991).

¶15 See Sanders, supra at 615-616 (2).

¶16 See Scott, supra at 163 (1).

¶17 See id.; see also Cannon v. State, 260 Ga. App. 15, 17 (579 SE2d 60) (2003) (because defendant admitted that he had violated the restitution condition of his probation, he necessarily admitted wilfulness and waived any challenge to the sufficiency of the evidence regarding that violation).

¶18Thompson, supra at 103-104.

¶19 See id. at 104.

¶20 See Jones, supra at 904-905 (4).

¶21Id. at 905.