Hollis v. State, 484 S.E.2d 54 (Ga. Ct. App. 1997). · Go Syfert
Hollis v. State, 484 S.E.2d 54 (Ga. Ct. App. 1997). Cases Citing This Book View Copy Cite
26 citation events (8 in the last 25 years) across 2 distinct courts.
Strongest positive: GOMEZ-OLIVA v. State (gactapp, 2011-10-18)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 10 distinct citers.
discussed Cited as authority (rule) GOMEZ-OLIVA v. State
Ga. Ct. App. · 2011 · confidence medium
“The elements of the crime of attempted rape are that the accused (1) intended to have forcible and non-consensual carnal knowledge of the victim; and (2) took a substantial step toward committing rape; but (3) failed to consummate the rape.” (Citations omitted.) Hollis v. State, 225 Ga. App. 370, 370 (1) ( 484 SE2d 54 ) (1997); see also OCGA § 16-4-1 (criminal attempt). 9 Rather, in his amended motion for new trial, and at the hearing on the motion, Gomez-Oliva argued only that the trial court erred in failing to allow Gomez-Oliva to elicit testimony regarding alternate explanations of t…
discussed Cited as authority (rule) Binns v. State
Ga. Ct. App. · 2009 · confidence medium
Smith, P J., and Adams, J., concur. 1 (Punctuation and footnotes omitted.) Whitaker v. State, 287 Ga. App. 465 (1) ( 652 SE2d 568 ) (2007). 2 See King v. State, 224 Ga. App. 400, 401 (3) ( 480 SE2d 385 ) (1997). 3 (Citations omitted.) Wyche v. State, 291 Ga. App. 165, 167 (2) ( 661 SE2d 226 ) (2008). 4 Binns testified that he had a limp and was partially paralyzed because he was shot when he was 12 years old. 5 261 Ga. 625 ( 409 SE2d 839 ) (1991). 6 Id. at 630 (5). 7 See Landers v. State, 270 Ga. 189, 190-191 (2) ( 508 SE2d 637 ) (1998) (state improperly commented upon defendant’s silence bu…
discussed Cited as authority (rule) Rogers v. State
Ga. Ct. App. · 2000 · confidence medium
Hollis v. State, 225 Ga. App. 370, 371 ( 484 SE2d 54 ) (1997). (d) Finally, any previous consensual homosexual fantasies the victim may have had would in no way support an inference that the accused could have reasonably believed that the victim consented to the conduct complained of in the prosecution which included armed robbery and kidnapping, as well as nonconsensual aggravated sodomy at knifepoint.
cited Cited as authority (rule) Martinez v. State
Ga. Ct. App. · 2000 · confidence medium
(Citations and punctuation omitted.) Hollis v. State, 225 Ga. App. 370, 371-372 (3) ( 484 SE2d 54 ) (1997).
cited Cited as authority (rule) Manning v. State
Ga. Ct. App. · 1999 · confidence medium
Hollis v. State, 225 Ga. App. 370, 371 (2) ( 484 SE2d 54 ) (1997).
discussed Cited as authority (rule) McClarity v. State
Ga. Ct. App. · 1998 · confidence medium
(Citations and punctuation omitted.) Hollis v. State, 225 Ga. App. 370, 371 (3) ( 484 SE2d 54 ) (1997); controlling is Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); see Stephens v. State, 265 Ga. 120, 121 (2) ( 453 SE2d 443 ) (1995).
discussed Cited as authority (rule) McClarity v. State
Ga. Ct. App. · 1998 · confidence medium
NOTES [1] (Citations omitted.) Thaxton v. State, 260 Ga. 141, 142 (2), 390 S.E.2d 841 (1990). [2] Hayes v. State, 203 Ga.App. 143, 144 (2), 416 S.E.2d 347 (1992). [3] Mallory v. State, 225 Ga.App. 418, 422 (4), 483 S.E.2d 907 (1997). [4] Thaxton, supra, 260 Ga. at 142 (2), 390 S.E.2d 841 . [5] Davis v. State, 229 Ga.App. 787, 789 (2), 494 S.E.2d 702 (1997); see Smith v. State, 268 Ga. 42, 43 (3), 485 S.E.2d 189 (1997) (similar transaction issue waived if defendant fails to object at trial). [6] Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 , 260 S.E.2d 20 (1979); Stephens v. Dept. of Transp…
discussed Cited "see" Ely v. State (2×)
Ga. · 2000 · signal: see · confidence high
OCGA § 24-9-84; see Hollis v. State, 225 Ga. App. 370 (2) ( 484 SE2d 54 ) (1997) (simple battery not a crime involving moral turpitude); O’Neal v. Kammin, 263 Ga. 218, 219 ( 430 SE2d 586 ) (1993) (misdemeanor possession of marijuana not a crime involving moral turpitude); see generally Hall v. Hall, 261 Ga. 188 ( 402 SE2d 726 ) (1991).
discussed Cited "see" Horne v. State (2×)
Ga. Ct. App. · 1998 · signal: see · confidence high
Pope, P. J., and Ruffin, J., concur. 1 (Emphasis omitted.) 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). 2 See OCGA §§ 16-2-20; 16-8-41 (a). 3 Moore v. State, 219 Ga. App. 818, 819 ( 467 SE2d 5 ) (1996); see Spear v. State, 228 Ga. App. 112 (1) ( 491 SE2d 164 ) (1997) (jury determines credibility of accomplice’s testimony). 4 (Citations and punctuation omitted.) Brown v. State, 188 Ga. App. 266 ( 372 SE2d 832 ) (1988); see Riley v. State, 268 Ga. 640 ( 491 SE2d 802 ) (1997); Blalock v. State, 250 Ga. 441, 443 (4) ( 298 SE2d 477 ) (1983). 5 Allen v. State, 224 Ga. App. 324, 325 (3) (…
discussed Cited "see" Anderson v. State (2×)
Ga. Ct. App. · 1997 · signal: see · confidence high
See Hollis v. State, 225 Ga. App. 370, 371 (2) ( 484 SE2d 54 ) (1997) (evidence of violent acts by the victim against third persons irrelevant where the defendant denied having struck the victim); Simmons v. State, 266 Ga. 223, 228 (5) ( 466 SE2d 205 ) (1996) (“evidence of violent acts by the victim, against third persons, is admissible only when the defendant claims justification as a defense”).
Hollis
v.
the State
A97A0198.
Court of Appeals of Georgia.
Mar 11, 1997.
484 S.E.2d 54
Clarke & Pelletier, Alan S. Clarke, for appellant., Thomas J. Charron, District Attorney, Debra H. Bernes, Thomas A. Cole, Nancy I. Jordan, Assistant District Attorneys, for appellee.
Smith, Beasley, Banke.
Cited by 13 opinions  |  Published
Smith, Judge.

Paul James Hollis, Jr. was convicted on charges of attempted rape, OCGA §§ 16-6-1, 16-4-1; simple battery, OCGA § 16-5-23 (a) (2); and criminal trespass, OCGA § 16-7-21 (b) (3). His motion for new trial was denied, and he appeals.

1. Hollis asserts the general grounds with respect to his conviction for attempted rape. Construed to support the verdict, the evidence presented showed that Hollis approached the victim at her home while she was unloading laundry from her car, entered on the pretext of using the telephone, and ripped the telephone off the wall. He threw the victim to the floor, tore and attempted to rip off her clothes, bit her on the thigh, and kicked and beat her while repeatedly describing the explicit sexual acts, including rape, that he intended to perform on her. The victim struggled, inflicting scratch wounds on Hollis’s face, arms, and neck; she eventually escaped to a nearby convenience store. The police escorted her back to her home, where Hollis was discovered hiding in the bushes. He fled but was apprehended a short distance away, and the victim positively identified him at the scene. His face and neck were extensively scratched.

The elements of the crime of attempted rape are that the accused “(1) intended to have forcible and non-consensual carnal knowledge of the victim; and (2) took a substantial step toward committing rape; but (3) failed to consummate the rape. OCGA §§ 16-4-1, 16-6-1; McGinnis v. State, 183 Ga. App. 17, 18 (358 SE2d 269) (1987).” Lumsden v. State, 222 Ga. App. 635, 637 (4) (475 SE2d 681) (1996). Hollis suggests that we should believe his version of the encounter in preference to that given by the victim, but this Court has no authority to do so. "On appeal of a criminal conviction, the appellant is no longer indulged with the presumption of innocence, for the jury has rendered its verdict; we do not weigh the evidence or determine the [witnesses’] credibility but construe the evidence to uphold the verdict. Thus, we only determine whether the evidence is such as to enable any rational trier of fact to find the defendant guilty of the crime charged beyond a reasonable doubt.” (Citation omitted.) Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990), aff’d, 261 Ga. 311 (404 SE2d 787) (1991). We find that a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of attempted rape under the standard set forth in Jackson v. Virginia, [*371] 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Lumsden, supra; Mathis v. State, 184 Ga. App. 455, 456-457 (1) (361 SE2d 856) (1987); Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983).

2. In his second enumeration, Hollis contends the trial court improperly excluded evidence of a charge of simple battery against the victim that was pending at the time of trial. We disagree. This evidence could not be used to impeach the victim with proof of her bad character because evidence of specific acts is not the proper method of doing so. Kennard v. State, 180 Ga. App. 522 (1) (349 SE2d 470) (1986). While a witness may be impeached by showing conviction of a crime involving moral turpitude, this evidence was improper for three reasons: Hollis failed to present record evidence rather than testimony, simple battery is not a crime involving moral turpitude, and the evidence here showed merely an arrest. “Even competent proof of an offense not involving moral turpitude, or incompetent proof of an offense involving moral turpitude, such as a mere indictment or a charge or an arrest or a trial and acquittal, are not legal methods of impeachment.” (Citations and punctuation omitted.) Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470) (1993).

Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991), though not cited by Hollis, allows the admission of evidence of violent acts by the victim against third persons under certain limited circumstances. Such evidence, however, is admissible only if, among other requirements, the defendant claims justification as a defense. Id.; see OCGA § 16-3-20. Hollis testified at trial, but he never made any claim amounting to justification. He did not contend, for example, that the victim attacked him or that he struck and kicked her as the result of provocation. He claimed instead that they met at a gas station and drank beer together, she invited him in to her home to drink more beer, then “started screaming on [him]” and falsely accused him of trying to rape her. He denied having struck her, and he contended the scratches and marks on his body were from his work as a tree surgeon or from running into a barbed wire fence rather than injuries inflicted by the victim. Under these circumstances, Hollis cannot rely upon the rule established in Chandler.

3. Finally, Hollis alleges ineffective assistance of trial counsel in several respects. “In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [A defendant] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a'defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reason[*372] able probability the jury would have reached a different verdict, absent the error of counsel.” (Citations and punctuation omitted.) Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

Hollis first complains that his trial counsel failed to object to a witness’s testimony regarding a statement made by Hollis. During his account of the arrest, the arresting officer volunteered that Hollis attributed the scratches on his body to a fight with another woman. This statement was not previously disclosed to Hollis’s counsel under the reciprocal criminal discovery provisions of OCGA § 17-16-4 (a) (1). Assuming without deciding that this testimony violated the discovery statute, the trial court’s decision that counsel’s failure to object did not affect the jury’s verdict is not clearly erroneous. As noted above, Hollis attributed scratches at one point to his work as a tree surgeon and at another point to a barbed wire fence. Hollis’s brother, however, while testifying on Hollis’s behalf, stated that he had no marks on his face or neck before the incident. The unrevealed statement was therefore merely cumulative of already conflicting testimony, and we cannot conclude as a matter of law that a reasonable probability exists that the jury would have reached a different verdict had counsel objected. See Strong v. State, 264 Ga. 837, 838-839 (3) (452 SE2d 97) (1995). Moreover, trial counsel testified that his failure to object or move for a mistrial was a strategic decision calculated to minimize the negative effect of the officer’s testimony. While Hollis “may now disagree with some of the tactical or strategic choices made by counsel during trial, such disagreements do not equate with inadequacy. [Cit.]” Cofield v. State, 216 Ga. App. 623, 627 (5) (455 SE2d 342) (1995).

Hollis also asserts that trial counsel was ineffective in failing to conduct a “thorough cross examination of the victim and police.” Trial counsel testified, however, that he conducted cross-examination of the State’s witnesses in accordance with his theory of the case, seeking to establish those facts which he thought most beneficial to Hollis. Counsel also testified that he was particularly cautious in cross-examining the victim because of the risk of appearing to berate or abuse her. Such decisions regarding the scope and focus of cross-examination provide perhaps the clearest example of tactical and strategic decisions on the part of trial counsel.

Finally, Hollis contends that trial counsel was ineffective in failing to call witnesses who might have bolstered his account of the incident. But on his motion for new trial, Hollis failed to support his claims with any testimony, affidavits, or proffer of the testimony of the witnesses. When a defendant fails to show what prospective witnesses’ testimony would be or that they would have agreed to testify if subpoenaed, it is impossible “to determine whether failure to call these witnesses would have indeed affected the outcome of [Hollis’s][*373] trial.” Goodwin v. Cruz-Padillo, 265 Ga. 614, 616 (458 SE2d 623) (1995). Hollis must offer more than mere speculation that “other witnesses . . . may have had evidence which would have assisted Mr. Hollis’ case at trial.”

Decided March 11,1997. Clarke & Pelletier, Alan S. Clarke, for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, Thomas A. Cole, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In denying Hollis’s motion for new trial, the trial court concluded that trial counsel was not ineffective and that there was no reasonable probability the jury would have reached a different verdict. We do not find this conclusion to be clearly erroneous.

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.