Futch v. State

¶1Following a bench trial, Mark D. Futch was convicted of one count of battery (family violence-first offense) and one count of influencing a witness. Futch appeals his convictions, arguing that the evidence was insufficient to prove his guilt beyond a reasonable doubt and that the trial court erred in admitting evidence of prior and *377subsequent bad acts without first conducting an explicit balancing test. For the reasons set forth infra, we affirm in part and reverse in part.

¶2Viewed in the light most favorable to the trial court’s guilty verdict,1 the evidence shows that Futch and his wife had been married for approximately five years at the time of the alleged battery on December 23, 2007, but at that time they were estranged and living separately. Futch and his wife have a daughter who was approximately two years old at the time, and who lived with her mother after the couple separated. A few days before the incident, Futch’s wife permitted him to see their child. But when Futch refused to give the child back, his wife decided to arrange a meeting to recover her daughter.

¶3On December 23, 2007, she met Futch and their daughter at Futch’s father’s home. They then traveled to Statesboro where they ate at a local restaurant. There, Futch tried to persuade his wife to reconcile, but this discussion quickly devolved into an argument, which in turn resulted in Futch taking the keys to his wife’s car. Futch’s wife then suggested that they go to the local Walmart to do Christmas shopping, hoping that this would give her an opportunity to escape with her daughter in tow.

¶4Once at Walmart, Futch noticed his wife’s nervousness. Suspecting that she would try to escape, he “put his hand” on his wife’s neck and warned: “You can think it, don’t try it. I’ll kill you, I’ll kill her and Fll kill myself.” Shortly thereafter, Futch’s wife noticed that their daughter’s hands had become sticky from a lollipop, and — seizing the opportunity — suggested that she take their daughter to the bathroom to wash the child’s hands. In the bathroom, Futch’s wife started “shaking and crying” with fear, and asked a woman in the bathroom “if she could please help [her]” by locating a manager or police officer. The Good Samaritan then tracked down a manager, who called the police.

¶5Shortly thereafter, a local police officer responded to the call. And upon arriving at Walmart, the officer found Futch’s wife sitting in her car, and observed that “[s]he was visibly upset, she was crying, [and] her voice was very shaky.” The officer took a statement from Futch’s wife, and arrested Futch for family-violence simple battery and family-violence simple assault.

¶6Subsequently, Futch was indicted on one count of making ter-roristic threats and one count of battery (family violence-first offense). And then, prior to a trial scheduled for March 28, 2008, Futch *378contacted his wife and threatened her not to testify, against him, warning, “[i]f you testify against me I’ll kill you.” Based on this threat, the charge of influencing a witness was added and presented as a Special Presentment to the Grand Jury on May 5, 2008, and ultimately true billed.

¶7Thereafter, Futch waived his right to a jury trial and proceeded with a bench trial, during which Futch’s wife testified to the alleged battery on December 23, 2007, and to Futch’s threat to kill her if she testified against him. In addition, she testified about three other domestic incidents between the estranged couple. Specifically, she testified that Futch pulled her out of bed by the ankles in November 2005, that Futch hit her and tried to strangle her on November 5, 2006, and that Futch cut her on the neck, causing a small puncture wound, on April 11, 2008. A detective with the Richmond Hill Police Department investigated this last incident and took pictures of the injury that Futch’s wife suffered. The defense called Futch’s father, mother, and brother to the stand, all of whom testified that they believed Futch’s wife to be dishonest.

¶8At the trial’s conclusion, the court found Futch guilty on the counts of battery (family violence-first offense) and influencing a witness.2 In explaining his ruling, the trial judge addressed Futch’s wife:

And, Ms. Futch, just that you don’t misunderstand, I think that about half of your testimony was a lie too. And that truth is stuck somewhere in between all of it. But I think there is enough truth there to convict and that’s the reason I’m doing it. And I don’t have any reasonable doubt that both of them happened.

¶9Subsequently, Futch moved for a new trial, which the trial court denied. This appeal follows.

¶101. In his first enumeration of error, Futch contends that the evidence was insufficient to support his convictions of family-violence battery and influencing a witness. Specifically, he argues that because the trial judge noted his belief that “half of [the victim’s] testimony was a lie,” the victim’s testimony is insufficient evidence to support his convictions. For the reasons noted infra, we affirm the conviction for influencing a witness. However, because the State failed to introduce sufficient evidence to support an essential element of family-violence battery, we are constrained to reverse Futch’s conviction on that particular count.

¶11*379At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.3 In evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.”4 Accordingly, the trier of fact’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case . . . .”5

¶12(a) Family-Violence Battery. A defendant commits the offense of battery when he “intentionally causes substantial physical harm or visible bodily harm to another.”6 As defined in the statute, the term “visible bodily harm” means bodily harm “capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.”7 And when a defendant commits the offense of battery against a spouse or other family member, then the offense constitutes family-violence battery.8

¶13Whether substantial physical harm or visible bodily harm occurs is typically a question for the trier of fact.9 That does not mean, however, that any type of physical contact with the victim is sufficient to support a conviction for battery.10 To establish battery, the State must introduce evidence of pain or harm.11 Moreover, the State must introduce some evidence that the physical harm is substantial or visible to others.12 Indeed, the severity of the harm inflicted is precisely what distinguishes battery from the lesser offense of simple battery: Simple battery requires offensive touching or physical harm, *380whereas battery requires substantial physical harm or visible bodily injury.13 Our General Assembly has established harsher penalties for batteries that result in more severe physical harm, allowing a battery to be punished as a felony under certain circumstances, while generally punishing simple battery as a misdemeanor.14

¶14In family-violence-battery cases, the State typically establishes substantial physical harm or visible bodily injury by introducing evidence that the defendant’s conduct produced bruises, swelling, cuts, or some other physical mark.15 Additionally, evidence that the victim suffered significant pain is also sufficient to support a conviction for family-violence battery.16 However, in the case sub judice, the victim’s testimony that Futch “put his hand” on her neck falls short of the evidence required to permit a reasonable trier of fact to infer that she suffered substantial physical harm or visible bodily harm.17 The State has accordingly failed to carry its burden of establishing the severity of harm required for the offense of battery under OCGA § 16-5-23.1 (a). Consequently, the evidence is insufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Futch was guilty of family-violence battery.18 We are, therefore, constrained to reverse Futch’s conviction on that offense.

¶15*381(b) Influencing a Witness. A defendant commits the offense of influencing a witness when “with intent to deter a witness from testifying freely, fully and truthfully to any matter pending in any court,” he “communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness . . . ”19

¶16As noted supra, Futch contends that his wife’s testimony is insufficient evidence to support his conviction because the trial judge noted his belief that “about half of [her] testimony was a lie.” We disagree. Assessing the credibility of witnesses properly belongs to the trier of fact.20 Indeed, this Court does not assess the credibility of witnesses on appeal.21 Moreover, it is within the discretion of the trier of fact to believe part of a witness’s testimony while disbelieving another part.22 Furthermore, the factfinder may even rely on a witness’s prior statements when that witness’s testimony at trial contradicts those statements.23

¶17Here, the trial court was entitled to rely on the testimony of Futch’s wife that Futch threatened to kill her if she testified against him. And the testimony of a single witness is generally sufficient to establish a fact.24 The State thus presented sufficient evidence that Futch acted with the requisite criminal intent to deter his wife from testifying and that he directly communicated a threat to her.25 Accordingly, the trial court did not err in finding that Futch was guilty beyond a reasonable doubt of influencing a witness.26

¶182. Futch also contends that the trial court erred in admitting evidence regarding three other incidents of physical abuse of his wife as prior and subsequent bad acts without conducting an explicit balancing test. We disagree.

¶19We first note that “[a]s a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent *382evidence of its abuse.”27 Moreover, because this was a bench trial, “there is a presumption, in the absence of a strong showing to the contrary, that the trial judge sifted the wheat from the chaff, ignored illegal evidence and considered only legal evidence.”28 We address Futch’s claim of error with these guiding principles in mind.

¶20In Wall v. State,29 the Supreme Court of Georgia held that evidence of the defendant’s prior bad acts toward the victim, such as a prior assault, quarrel, or threat, is admissible when

the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.30

¶21Importantly in Wall, our Supreme Court dispensed with the requirement that the trial court conduct a pre-trial hearing and make certain findings before allowing evidence of prior difficulties between the defendant and the victim.31 Furthermore, because subsequent bad acts arise from the relationship between the defendant and victim in the same way that prior bad acts do, they are admissible under the same analysis.32 Of course, as with any evidence, evidence of prior and subsequent difficulties may not be unduly prejudicial, remote, or confusing to the jury.33

¶22Contrary to Futch’s contention, however, there is no requirement that the trial judge conduct an “explicit” balancing test in order to conclude that the probative value of the evidence outweighs its prejudicial effect.34 And here, Futch’s prior and subsequent physical abuse of his wife was relevant to showing the type of relationship that *383existed between them, as well as Futch’s motive, intent, and bent of mind in committing the charged offenses.35 Accordingly, the trial court did not abuse its discretion in admitting evidence of prior and subsequent bad acts.

¶23For all the foregoing reasons, we reverse the trial court’s conviction on the count of battery (family violence-first offense) and affirm the trial court’s conviction on the count of influencing a witness.

¶24Judgment affirmed in part and reversed in part.