¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: October 25, 2022
¶4 S22A1220. POLKE v. THE STATE.
¶5 ELLINGTON, Justice.
¶6 A Tattnall County jury found Barbra Ann Polke guilty of
¶7malice murder and other crimes arising from the shooting death of
¶8her former girlfriend, Ashley Sharpe.1 Polke contends that the
¶9 A Tattnall County grand jury indicted Polke on February 24, 2015, for 1
¶10felony murder (Count 1), aggravated assault (Count 2), malice murder (Count 3), possession of a firearm during the commission of a felony (Count 4), and two counts of possession of a firearm by a convicted felon (Counts 5-6), arising from the shooting death of Sharpe on July 11, 2014. After a bifurcated jury trial held on May 23 and 24, 2016, Polke was found guilty on all counts except Count 6. On June 14, 2016, Polke was sentenced as a recidivist to life in prison without parole for malice murder; five years concurrent imprisonment for possession of a firearm by a convicted felon; and five years consecutive imprisonment for possession of a firearm during the commission of a felony. The trial court purportedly merged the remaining counts for purposes of sentencing. Although the aggravated assault count was properly merged, the felony murder count actually stood vacated by operation of law. See Johnson v. State, 300 Ga. 665, 665 n.2 (797 SE2d 903) (2017). Polke filed a motion for a new trial on June 20, 2016, which she amended through new counsel on March 30, 2020. Following a hearing on April 19, 2022, the trial court denied Polke’s motion. Polke filed a notice of appeal on May 18, 2022. This appeal was docketed to the August 2022 term of Court on July 7, 2022, and submitted for a decision on the briefs. evidence was insufficient to support her convictions beyond a
¶11reasonable doubt and that the trial court should have exercised its
¶12discretion as the thirteenth juror to grant a new trial. Polke also
¶13contends that the State failed to prove venue beyond a reasonable
¶14doubt. Because the record supports the trial court’s order denying
¶15Polke’s motion for a new trial, we affirm.
¶16 In assessing the constitutional sufficiency of the evidence, this
¶17Court views the evidence in the “light most favorable to the verdict,
¶18with deference to the jury’s assessment of the weight and credibility
¶19of the evidence.” (Citation and punctuation omitted.) Hayes v. State,
¶20292 Ga. 506, 506 (739 SE2d 313) (2013). See also Jackson v. Virginia,
¶21443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). So
¶22viewed, the evidence shows the following.
¶23 Polke and Sharpe were in a romantic relationship, and they
¶24lived together and worked together in Vidalia. Sharpe worked for
¶25WalMart; Polke worked at a McDonald’s franchise located inside the
¶26WalMart. According to Polke, the first nine months of their
¶27relationship was good, but when she became suspicious that Sharpe
¶28 2 was cheating on her, the relationship soured.
¶29 On June 29, 2014, Polke punched Sharpe in the face, sending
¶30her to the emergency room. Sharpe filed a police report. Sharpe
¶31immediately ended the relationship, and Polke moved out of their
¶32home. Sharpe considered seeking a restraining order but decided
¶33instead to request a transfer to the WalMart in Rincon. Catherine
¶34Sharpe (“Catherine”), who has no apparent relation to the victim, let
¶35Polke stay with her after the breakup. Text messages between Polke
¶36and Sharpe showed that, in the 12 days between the assault and the
¶37shooting, Sharpe remained resolute in her decision to end the
¶38relationship. Nevertheless, Polke repeatedly asked her for
¶39forgiveness. Sharpe responded that she was afraid of Polke and that
¶40there was nothing Polke could say or do to repair the relationship.
¶41 On the morning of July 10, 2014, the day before the shooting,
¶42Sharpe told Polke to stop calling her or she would get a restraining
¶43order and quit her job. That same morning, Polke asked her friend
¶44Catherine for help. Catherine took Polke to a pawn shop where they
¶45pawned several items in exchange for a .380 Jiminez handgun.
¶46 3 Thereafter, Catherine and Polke searched for .380 bullets, finally
¶47finding a store that carried them. One of the store’s employees, an
¶48acquaintance of Polke, testified that she saw Polke grabbing boxes,
¶49trying to find the right ammunition. When the employee asked why
¶50they were looking for bullets, Polke responded with a “shushing”
¶51sound, admonishing the employee to be quiet.
¶52 On July 11, 2014, Sharpe learned that her transfer request had
¶53been approved. She clocked out of work at 1:56 p.m. for lunch.
¶54WalMart video surveillance of the parking lot shows Sharpe getting
¶55into Polke’s car shortly thereafter. About 45 minutes later, Polke
¶56called 911 and said that Sharpe had been shot but was still alive.
¶57Paramedics and police officers responded to Catherine’s home in
¶58Reidsville, which is in Tattnall County. Though emergency
¶59personnel arrived within minutes of the 911 call, they found Sharpe
¶60deceased.
¶61 Sharpe was seated in the passenger seat of Polke’s car with an
¶62apparent gunshot wound to the left side of her head. The paramedics
¶63did not believe that Sharpe had died within the previous few
¶64 4 minutes, which was contrary to Polke’s statements in the 911 call.
¶65Sharpe had been shot once, just above her left ear. According to the
¶66medical examiner, the bullet passed through her head and exited
¶67the right temple. Gunpowder stippling was found near the entry
¶68wound. The medical examiner testified that the gun was fired less
¶69than 18 inches away from the wound, and “probably much closer.”
¶70 The police tested Polke’s hands for gunpowder residue and
¶71recovered enough residue to suggest that she had either fired a
¶72weapon, was close to a gun when it was fired, or had handled
¶73something that had primer particles on it. The police recovered a
¶74.380 shell casing from the back seat of Polke’s car. Police officers and
¶75forensics experts testified that the passenger window had what
¶76appeared to be a bullet hole with shattered glass around the
¶77periphery of the hole, but no glass was found inside the car,
¶78suggesting that a gun had been fired from inside the car. No other
¶79defect similar to the hole in the passenger-side window was found
¶80on the interior or exterior of the car.
¶81 Initially, Polke told the police that she had picked Sharpe up
¶82 5 from work and had taken her to eat lunch at a Chinese restaurant
¶83in Lyons. After lunch, they drove to Reidsville. Polke claimed that,
¶84when they stopped at the intersection of Highway 280 and Gordon
¶85Avenue in Toombs County, she saw a group of men, one of whom
¶86fired a shot at her car, striking Sharpe. Polke said that she did not
¶87immediately realize that Sharpe had been shot. Instead of driving
¶88to a hospital in Vidalia, just five minutes away, Polke said she
¶89panicked and drove to Catherine’s house in Reidsville. Based on this
¶90initial account, the police went to the intersection in Toombs County
¶91and immediately secured and searched area. The police took Polke
¶92to the intersection, and she indicated where she had seen the group
¶93of men. The police found no ballistics evidence there and no one in
¶94the area reported hearing gunshots or seeing suspicious activity. In
¶95fact, no evidence of any kind was found at the location provided by
¶96Polke.
¶97 Polke testified at trial and gave a different account of the
¶98shooting. At trial, she said that her friend Catherine “was the one
¶99who gave [her] that gun to kill [Sharpe],” and that she was sorry
¶100 6 because “she didn’t want to kill [Sharpe], but [Catherine] told [her]
¶101to.” She said that Catherine took the gun from her after the shooting
¶102and hid it. Polke was a convicted felon at the time of the shooting,
¶103as shown by her 2008 Evans County conviction for carrying a
¶104concealed weapon.
¶105 1. With respect to Polke’s first claim of error challenging the
¶106sufficiency of the evidence as a matter of constitutional due process
¶107under Jackson, the record shows that the evidence of Polke’s guilt
¶108was overwhelming. Polke testified at trial and essentially admitted
¶109that she shot Sharpe. The record shows that Sharpe ended her
¶110relationship with Polke because of Polke’s violent behavior toward
¶111her. Polke repeatedly tried to reestablish the relationship, even
¶112though Sharpe had threatened to get a restraining order. Polke
¶113purchased a .380 handgun and bullets the day prior to the shooting.
¶114A .380 shell casing was found in Polke’s car after the shooting. The
¶115police observed a bullet hole in the passenger-side window, but no
¶116glass inside the car, which supported an inference that a gun had
¶117been fired from inside the car. The medical examiner testified that
¶118 7 Sharpe’s death was caused by a wound from a bullet that entered
¶119the left side of her head, exited through the right side, and which
¶120was fired from a gun no further than 18 inches away. Polke had
¶121gunpowder residue on her hands. Polke’s initial version of the
¶122shooting, that it happened in Toombs County and that a gun was
¶123fired by one of several men standing outside the car, was not
¶124supported by any evidence. This evidence is sufficient to support the
¶125jury’s verdicts beyond a reasonable doubt. See Jackson, 443 U. S. at
¶126318-319.
¶127 2. Polke also contends that the trial court “should have
¶128exercised its discretion as the thirteenth juror and granted [her] a
¶129new trial.” OCGA §§ 5-5-20 and 5-5-21, respectively, allow the trial
¶130court to grant a new trial “[i]n any case when a verdict of the jury is
¶131found contrary to evidence and the principles of justice and equity,”
¶132or when “the verdict may be decidedly and strongly against the
¶133weight of the evidence even though there may appear to be some
¶134slight evidence in favor of the finding.” The two statutes give “the
¶135trial court broad discretion to sit as a thirteenth juror and weigh the
¶136 8 evidence on a motion for new trial alleging these general grounds.”
¶137Holmes v. State, 306 Ga. 524, 527-528 (2) (832 SE2d 392) (2019)
¶138(citation and punctuation omitted).
¶139 The record does not support Polke’s claim of error. Although
¶140she sought a new trial on this basis, the argument in the brief
¶141supporting her motion for a new trial was cursory at best. In a one-
¶142paragraph argument, counsel asserted, based upon testimony
¶143presented at sentencing, that Polke was easily manipulated because
¶144she had a low IQ. Moreover, Polke’s counsel did not advance the
¶145thirteenth-juror argument during the hearing on her motion,
¶146conceding that Polke had admitted shooting Sharpe. Instead,
¶147counsel focused solely on her second claim of error, a venue
¶148argument, and informed the trial court that, with respect to the
¶149insufficiency claim, she would rely on her written brief in support of
¶150the motion.
¶151 In its order denying the amended motion for a new trial, the
¶152trial court denied “each and every ground thereof” based upon its
¶153review of the entire record and counsel’s argument at the hearing.
¶154 9 Under these circumstances, we cannot say that the trial court
¶155abused its discretion as the “thirteenth juror” in denying Polke’s
¶156motion. See Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671)
¶157(2017).
¶158 3. Polke contends that the evidence was insufficient to allow
¶159the jury to find that venue was proper in Tattnall County. We
¶160disagree.
¶161 With respect to venue generally, “all criminal cases shall be
¶162tried in the county where the crime was committed.” Ga. Const. of
¶1631983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2 (a) (“Criminal
¶164actions shall be tried in the county where the crime was committed,
¶165except as otherwise provided by law.”). Also, “[c]riminal homicide
¶166shall be considered as having been committed in the county in which
¶167the cause of death was inflicted.” OCGA § 17-2-2 (c). If, however, “it
¶168cannot be determined in which county the cause of death was
¶169inflicted, it shall be considered that it was inflicted in the county in
¶170which the death occurred.” Id. If a “body is discovered in this state
¶171and it cannot be readily determined in what county the cause of
¶172 10 death was inflicted, it shall be considered that the cause of death
¶173was inflicted in the county in which the dead body was discovered.”
¶174Id. See also Coleman v. State, 301 Ga. 753, 755 (804 SE2d 89) (2017);
¶175Shelton v. Lee, 299 Ga. 350, 354-355 (788 SE2d 369) (2016). And,
¶176OCGA § 17-2-2 (h) provides that, “[i]f in any case it cannot be
¶177determined in what county a crime was committed, it shall be
¶178considered to have been committed in any county in which the
¶179evidence shows beyond a reasonable doubt that it might have been
¶180committed.” With respect to proof of venue,
¶181 [v]enue is a jurisdictional fact that the State must prove beyond a reasonable doubt and can do so by direct or circumstantial evidence. Determining whether venue has been established is an issue soundly within the province of the jury. When examining whether the State has carried its burden, we view the evidence in the light most favorable to the verdict and must sustain the verdict if the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.
¶182(Citations and punctuation omitted.) Hernandez v. State, 304 Ga.
¶183895, 898 (2) (823 SE2d 272) (2019).
¶184 The trial court charged the jury that the State must prove
¶185 11 venue beyond a reasonable doubt and that where “it cannot be
¶186determined in what county the crime was committed, then venue is
¶187proper and may be proved in any county in which the evidence shows
¶188beyond a reasonable doubt that it might have been committed.” See
¶189OCGA § 17-2-2 (a) and (h).2 In this case, it was not readily
¶190determinable whether Polke shot Sharpe in Toombs or Tattnall
¶191County. Polke initially claimed that the shooting happened in
¶192Toombs County; however, there was no evidence to corroborate her
¶193account of events, and the jury was authorized to reject her self-
¶194serving statement as a lie. It was also unclear where Sharpe died.
¶195Polke claimed that Sharpe was still alive when they arrived at
¶196Catherine’s home in Tattnall County, a statement from which the
¶197jury could infer that Sharpe died in Tattnall County. However, there
¶198was evidence that the paramedics believed Sharpe’s death had
¶199occurred earlier than Polke claimed. It was undisputed, however,
¶200that Sharpe’s body was found in Tattnall County. Thus, the jury was
¶201 2 The trial court did not charge the jury that it could find venue pursuant to OCGA § 17-2-2 (c), concerning where the cause of death was inflicted. 12 authorized to find beyond a reasonable doubt that venue was
¶202established in Tattnall County under OCGA § 7-2-2 (h). See
¶203Hernandez, 304 Ga. at 898 (2) (venue lay in county where victim’s
¶204body was found “because it was not readily determinable where
¶205Hernandez shot and killed [the victim]”). See also Bulloch v. State,
¶206293 Ga. 179, 187 (4) (744 SE2d 763) (2013) (Evidence was sufficient
¶207for the jury to find beyond a reasonable doubt that venue was
¶208established pursuant to OCGA § 17-2-2 (a) and (h).).
¶209 Judgment affirmed. All the Justices concur.
¶210 13