                           FIRST DIVISION
                            PHIPPS, C. J.,
                   ELLINGTON, P. J., and MCMILLIAN, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                       July 22, 2014




In the Court of Appeals of Georgia
 A14A1355. DAVIS v. THE STATE.

      ELLINGTON, Presiding Judge.

      A Polk County jury found Reginald Davis guilty beyond a reasonable doubt of

armed robbery, OCGA § 16-8-41 (a); kidnapping, OCGA § 16-5-40; hijacking a

motor vehicle, OCGA § 16-5-44.1; and theft by taking, OCGA § 16-8-2. Following

the denial of his motion for a new trial, Davis appeals, contending that the evidence

was insufficient as to venue and that the trial court erred in denying his motion for a

mistrial which was based upon testimony he claims constituted an improper comment

upon his choice to remain silent. For the reasons explained below, we affirm.
      Viewed in the light most favorable to the jury’s verdict,1 the record shows the

following. On August 24, 2011, Davis enlisted the help of his co-defendant, Marquita

Alford, and another woman in his plan to rob the victim. Knowing that the victim was

interested in having sex with the other woman, Alford offered to arrange a meeting

between the victim and the other woman, who acted as “bait.” When the victim

arrived in his car at the agreed time to pick up Alford and the other woman, the

women were walking on South Martiele Street, between Davenport Street and Cleo

Street, in Cedartown. Alford got in the backseat, and the other woman got in the front

seat. Davis was waiting in the same block in his own car with the engine running,

ready to follow.

      Just after the victim picked up the two women, Alford told the victim to drop

her off on Cleo Street, which was the next cross street. The victim turned left onto

Cleo Street and pulled over just before reaching the next corner at Estes Street. The

other woman left the car and Davis entered the car, holding a gun. Davis pointed the

gun at the back of the victim’s head and directed the victim’s driving until they

reached a more secluded area. After telling the victim to stop the car, Davis and


      1
       Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).

                                          2
Alford took money, jewelry, and a cellphone from the victim while Davis continued

to point the gun at him. After robbing the victim, Davis and Alford took the victim’s

car, stranding him in some woods, and drove back toward Cedartown.

      1. Davis contends that the State failed to prove that he committed the charged

offenses in Polk County and that, as a result, the evidence was insufficient to prove

venue.

      The standard for review of the sufficiency of the evidence to support a
      criminal conviction is whether after viewing the evidence in the light
      most favorable to the prosecution, any rational trier of fact could have
      found the essential elements of the crime beyond a reasonable doubt.
      The review of the sufficiency of the evidence to support venue is no
      different because venue is an essential element that must be proven
      beyond a reasonable doubt in every criminal trial.


(Punctuation and footnotes omitted.) Thompson v. State, 277 Ga. 102, 103 (1) (586

SE2d 231) (2003). “Furthermore, venue is a question for the jury, and its decision will

not be set aside if there is any evidence to support it.” (Punctuation and footnote

omitted.) Leftwich v. State, 299 Ga. App. 392, 399 (4) (682 SE2d 614) (2009).

      The State offered the testimony of the victim to establish venue in Polk County,

as follows:



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      Q:     [W]hat was the [telephone] conversation [between you and
             Alford] at that point[, that is, just before the victim picked
             up Alford and the other woman]?
      A:     [S]he said, we are on Martiele Street, and pick us up on
             Martiele. . . . So when I got on Martiele, that’s where they
             were waiting. So when I stopped, [the other woman] got in
             the front, and [Alford] got in the back of my car[.] . . .
      Q:     Okay. And that was on Martiele Street?
      A:     On Martiele – South Martiele.
      Q:     That’s here in Cedartown?
      A:     Here in Cedartown, yeah.
      Q:     And that is in Polk County?
      A:     [Yes,] Polk County.


During his testimony, the victim referred to State’s Exhibit 2, a paper map, which

showed these streets. The victim marked the block of South Martiele Street where he

picked up the two women, the block he drove on Cleo Street, and the intersection of

Cleo Street and Estes Street where Davis entered the car. The trial court admitted

State’s Exhibit 2 without objection.

      We conclude that the victim’s testimony, together with the map that he marked

to show where he picked up Alford and the other woman, constituted direct evidence

that South Martiele Street, between Davenport Street and Cleo Street, is in Polk

County. In addition, the evidence authorized the jury to find that Alford and Davis’s

conduct at that Polk County location – Alford entering the victim’s car with the other


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woman while Davis watched and followed in his own car – was an integral part of

their plan to hijack the victim’s car and kidnap and rob him, which they executed

during one continuous occurrence while in transit. See OCGA § 17-2-2 (e).2 Under

these circumstances, each of the charged offenses can be considered as having been

committed in Polk County, and venue as to each of the charged offenses was proper

in that county. See Epps v. State, 297 Ga. App. 66, 69-70 (1) (676 SE2d 791) (2009)

(Testimony showing that a bar where the defendant tricked the victim into getting

into a car for the purpose of kidnapping and robbing him was in Douglas County was

sufficient to establish venue there, even if the evidence showed that the defendant

took the victim to an ATM in another county.).3

      2

    If a crime is committed upon any . . . vehicle . . . traveling within this
    state and it cannot readily be determined in which county the crime was
    committed, the crime shall be considered as having been committed in
    any county in which the crime could have been committed through
    which the . . . vehicle . . . has traveled.
OCGA § 17-2-2 (e).
      3
        See also Wickerson v. State, 321 Ga. App. 844, 851-852 (2) (743 SE2d 509)
(2013) (Testimony by the victims of armed robberies as to locations where they were
robbed, and testimony by the lead police detective pointing out those locations on a
map and testifying that the map was of an area of DeKalb County, were sufficient to
establish venue there.); Bizimana v. State, 311 Ga. App. 447, 448-451 (715 SE2d
754) (2011) (Testimony by the investigating police officer that an apartment complex
where the victim was raped was in DeKalb County was sufficient to establish venue

                                         5
      2. Davis contends that the trial court erred in denying his motion for a mistrial,

which was based on an investigator’s alleged comment on Davis’s post-arrest silence.

“The grant or denial of a mistrial is within the trial court’s discretion, and the

appellate court will not interfere with the trial court’s exercise of that discretion

unless it is clear that a mistrial was essential to preserve the right to a fair trial.”

(Footnote omitted.) Franks v. State, 301 Ga. App. 590, 591 (688 SE2d 382) (2009).

      It is fundamental that “the fact that a defendant exercised the right to remain

silent may not be used against the defendant at trial.” (Citation omitted.) Taylor v.

State, 272 Ga. 559, 561 (2) (d) (532 SE2d 395) (2000). Therefore, Georgia law

prohibits the State from commenting on a criminal defendant’s post-arrest silence or

failure to come forward after a crime, even when the defendant takes the stand in his

own defense. Reynolds v. State, 285 Ga. 70, 71 (673 SE2d 854) (2009); Harrelson v.

State, 312 Ga. App. 710, 716 (2) (719 SE2d 569) (2011); Franks v. State, 301 Ga.

App. at 591. Evidence of the election to remain silent warrants reversal if it “point[s]



there, even if the evidence supported a conclusion that the victim might have been
driven into another county before the rape occurred.); Aldridge v. State, 310 Ga. App.
502, 504-505 (1) (713 SE2d 682) (2011) (The evidence was sufficient to establish
venue in prosecution for kidnapping where the defendant pointed a gun at the victim
and ordered her into his car at a gas station located in Fulton County, and the victim
was also released in the same county.).

                                           6
directly at the substance of the defendant’s defense or otherwise substantially

prejudice[s] the defendant in the eyes of the jury.” (Citation and punctuation omitted.)

Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008).

      In this case, the alleged comment on Davis’s silence occurred during the direct

testimony of the lead detective. The detective described how he identified Davis as

a participant in the crimes, through interviews with the victim, Alford, and the woman

used as “bait,” who had come forward on the night of the robbery. The prosecutor

asked whether the detective’s investigation suggested any suspect other than Davis;

the detective answered, “no.” The prosecutor then asked, “[d]id any family members

or anybody else come up and inform you that [Davis] was nowhere near that area at

the time?” The detective answered, “No. [In the year between the crime and the trial,]

I’ve been contacted by nobody providing an alibi of where he was, that he wasn’t at

this location, or that he was with them. I’ve been contacted by absolutely nobody.”

Davis’s counsel moved for a mistrial, arguing that a statement that “nobody” had

provided an alibi implied that Davis himself had failed to come forward during the

investigation, claiming to have an alibi. The trial court determined, however, that the

jurors likely inferred from the detective’s response, taken in context, only that none

of the witnesses had given Davis an alibi and that they would not have taken the

                                           7
testimony as a comment on Davis’s silence. On this basis, the trial court denied

Davis’s motion for a mistrial. Having reviewed the record, we discern no abuse of

discretion in the trial court’s ruling. See Johnson v. State, 271 Ga. 375, 383 (15) (a)

(519 SE2d 221) (1999) (A prosecutor’s argument that evidence of guilt has not been

contradicted or rebutted is permissible and is not a comment on the defendant’s

silence.); Bryant v. State, 146 Ga. App. 43, 44 (1) (245 SE2d 333) (1978) (A

prosecutor’s argument that “no other witness appeared here and told you that it didn’t

happen – no witness – no evidence” was not an impermissible and prejudicial

comment on the defendant’s silence.).

      Judgment affirmed. Phipps, C. J., concurs. McMillian, J., concurs in Division

2 and in the judgment.




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