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HUNSBERGER v. STATE

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Court of Appeals of Georgia.

HUNSBERGER v. The STATE.

No. A09A1411.

Decided: August 06, 2009

Barbara B. Claridge, Augusta, for Appellant. Rebecca A. Wright, Dist. Atty., for Appellee.

A Richmond County jury found Julio A. Hunsberger guilty of kidnapping with bodily injury. On appeal, Hunsberger claims that the trial court erred in denying his motion to sever his trial from that of his co-defendant and brother, Alexander L. Hunsberger. He also contends that the trial court lacked subject matter jurisdiction because the injury in question did not occur in Georgia. For the reasons set forth below, we disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence shows that the 16-year-old victim was forced into the trunk of Hunsberger's car in Richmond County, Georgia, and driven by Hunsberger and his brother, Alexander Hunsberger, to Edgefield, South Carolina. Stephen Barnes and three other individuals followed Hunsberger in another car. When they arrived in Edgefield, the victim was released from the trunk and marched to a field adjacent to property owned by Hunsberger's family. At Barnes's insistence, each person in turn, including the defendant, shot at the victim with a handgun. According to testimony at trial and consistent with evidence recovered from the crime scene, at least some of these shots were intentionally fired into the ground. A short time later, however, Barnes shot the victim in the head, inflicting a fatal injury.

1. Hunsberger contends that the trial court erred in denying his motion to sever his trial from that of his co-defendant. We disagree.

Whether to sever co-defendants' trials is within the discretion of the trial court. Causey v. State, 192 Ga.App. 294, 297(4), 384 S.E.2d 674 (1989).

Factors to be considered by the court in its exercise of discretion are as follows: (1) Will the number of defendants create confusion as to evidence and law relative to the separate defendants?; (2) Is there a danger that evidence admissible against only one defendant (or, where there are more than two defendants, only against certain ones of them) will nevertheless be considered against another?; and (3) Are the defendants' respective defenses antagonistic to the defenses, or the rights, of another?

Id. “The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citation and punctuation omitted.) Metz v. State, 284 Ga. 614, 616(2), 669 S.E.2d 121 (2008).

Here, the evidence showed that Hunsberger and his brother were involved in a single scheme and that they were tried for the same offense, and so a joint trial was appropriate. See Langley v. State, 258 Ga. 251, 252(2), 368 S.E.2d 316 (1988). Further, Hunsberger “does not attempt to explain how the fact that [the two] co-defendants were jointly tried caused the jury to be confused.” Green v. State, 274 Ga. 686, 688(2), 558 S.E.2d 707 (2002). To the extent that there was a disparity in the strength of the evidence against Hunsberger and his brother, this “does not demand a finding that the denial of a severance motion is an abuse of discretion, where there is evidence showing that the defendants acted in concert.” (Citation and punctuation omitted.) Strozier v. State, 277 Ga. 78, 81(5)(b), 586 S.E.2d 309 (2003).

Hunsberger nevertheless contends that the trial court erred in failing to sever the trial when his brother decided to testify in his own defense, because “at that point, the defenses of the co-defendants became antagonistic and [there was] a very clear danger that evidence admissible against only one defendant would become admissible against the other defendant.” Before Alexander testified, the trial court admitted Alexander's confessions to police into evidence, after they were redacted to omit references to Hunsberger and following an instruction to the jury that Alexander's confession could not be considered against Hunsberger. After Alexander testified, Alexander's confessions implicating both co-defendants were admitted into evidence in their entirety.

As a rule, a co-defendant's confession is not admissible against another defendant at a joint trial. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); OCGA § 24-3-52; Akins v. State, 173 Ga.App. 797, 798(2), 328 S.E.2d 413 (1985). “However, the rule applies only where the co-defendant does not testify and is not available for cross-examination.” Akins, 173 Ga.App. at 798(2), 328 S.E.2d 413. See House v. State, 237 Ga.App. 504, 507(3), 515 S.E.2d 652 (1999). Since Alexander testified, his confession was admissible against both defendants.1 Id. Accordingly, Hunsberger fails to show that there was a danger that evidence admissible against Alexander would be improperly considered against him. Further, Alexander's defense did not become antagonistic to Hunsberger's defense based upon Alexander's testimony-Alexander simply denied making the alleged statements to the police or having participated in anything connected with the victim's death. The trial court did not abuse its discretion in denying Hunsberger's motion to sever. See Passmore v. State, 274 Ga. 200, 552 S.E.2d 816 (2001) (“Because the co-defendant testified, his statement was admissible as substantive evidence, and severance was not required.”).

2. Hunsberger claims that because the victim was killed in South Carolina that Georgia lacked subject matter jurisdiction to convict him for the offense of kidnapping with bodily injury. OCGA § 16-5-40.2 We disagree.

“[A] person shall be subject to prosecution in this state for a crime which he commits, while either within or outside the state, ․ if ․ [t]he crime is committed either wholly or partly within the state.” OCGA § 17-2-1(b)(1). Since the victim was abducted in Georgia, the kidnapping occurred within the state. See generally Martin v. State, 281 Ga.App. 64, 65(1), 635 S.E.2d 358 (2006) (kidnapping “is consummated in the county where the victim was seized and asported to some degree”). When the victim was later injured in South Carolina, it was nevertheless a bodily injury for purposes of the Georgia kidnapping. For example, our Supreme Court affirmed a defendant's conviction for kidnapping with bodily injury where the victim was abducted in Georgia and later stabbed to death in Kentucky, but remanded the case for further proceedings on an unrelated issue in connection with the sentencing phase of the trial. Sears v. State, 268 Ga. 759, 493 S.E.2d 180 (1997). In a subsequent appeal, the Court found that the defendant's acts outside of Georgia could be considered for purposes of the state's authority to impose the death penalty. Sears v. State, 270 Ga. 834, 841-842(4), 514 S.E.2d 426 (1999). The Court emphasized that “[t]here is no basis for [the defendant's] contention that the stabbing [in Kentucky] could not constitute part of the bodily injury in the kidnapping charge. As a matter of law, bodily injury does not have to be inflicted at the same moment as the initial abduction.” Id. at 841(4), 514 S.E.2d 426. The Court also cited Heath v. Jones, 941 F.2d 1126 (11th Cir.1991), for the proposition that a “defendant could be convicted of murder during a kidnapping and sentenced to death in Alabama, despite the fact that the murder occurred in Georgia.” Sears, 270 Ga. at 842(4), 514 S.E.2d 426. In Heath, the Eleventh Circuit Court of Appeals held that Alabama had subject matter jurisdiction of the crime of kidnapping/murder3 where the kidnapping occurred in Alabama and the murder occurred in Georgia, notwithstanding the defendant's constitutional challenge. 941 F.2d at 1138-1139(II)(B)(2). See, e.g., Lane v. State, 388 So.2d 1022, 1028 (Fla.1980) (if the legislature so directs, “[a] person who commits a crime partly in one state and partly in another state may be tried in either state under the sixth amendment of the United States Constitution”).

In light of OCGA § 17-2-1, Sears, and Heath, we hold that Hunsberger was subject to prosecution and conviction in Georgia for the offense of kidnapping with bodily injury, notwithstanding that the victim was killed in South Carolina.4

Judgment affirmed.

BERNES, Judge.

SMITH, P.J., and PHIPPS, J., concur.

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