                                THIRD DIVISION
                               ELLINGTON, P. J.,
                          DILLARD and MCFADDEN, JJ.

                     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


                                                                    November 3, 2015




In the Court of Appeals of Georgia
 A15A1837. MILLER v. THE STATE.                                                JE-068C

      ELLINGTON, Presiding Judge.

      A Whitfield County jury found Samantha Miller guilty of two counts of

criminal trespass, OCGA §§ 16-7-21 (a), (b) (1); simple assault, OCGA § 16-5-20 (a)

(2); and battery, OCGA § 16-5-23.1. Miller appeals from the order denying her

motion for a new trial, contending that the trial court erred in failing to give jury

charges on the affirmative defense of justification and that her trial counsel was

ineffective for failing to request those charges. Finding no error, we affirm.

      Viewed in the light most favorable to the jury’s verdict,1 the record shows the

following. On November 3, 2012, Floyd Head received a phone call from Miller, his


      1
          Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
former girlfriend, asking him for a ride. According to Head, Miller had been

“wrestling” with her sister and needed to get away from her house. Head, who had

been drinking, asked his friend Trevor Beebe to drive him to pick up Miller, and

Beebe agreed. When Head and Beebe arrived at Miller’s sister’s house, Miller was

outside, walking along the road. As soon as Beebe pulled over, Miller “dove into the

back seat.” Head and Beebe testified that Miller was behaving erratically, that she

was “all over the place,” and that she was talking nonsensically about the FBI. During

the ride to Head’s home, Miller bit Beebe twice. She also talked about having sex

with Head and she tried to wrap her legs around his neck from the back seat of the

car.

       Head testified that he had seen Miller behave like this before and that he had

hoped she would eventually calm down when Bebee went home. After Beebe left,

Miller asked if she could launder her clothes and take a bath, and Head agreed. While

Miller was in the laundry room, Head sat down in his recliner. Moments later, Miller,

now naked, “c[a]me running at [him],” knocked him out of his recliner, and started

biting and scratching him. Head hit Miller to get her to stop biting him, and Miller ran

out of the house naked.



                                           2
      Miller ran toward the home of Yuliana Solis, which was about 55 feet away

from Head’s home. She started beating her face against Solis’ air conditioning

window unit and screaming: “Angel, come out of the room.” Worried for the safety

of his neighbor and her baby, Head called the police.

      Solis testified that she was startled by the sounds of very loud banging near her

front door. Miller then broke the window, pulled the air conditioning unit out, and

climbed in to the home. Solis testified that Miller’s face was bloodied, that she

wanted “Angel” to come out, and that she screamed: “I’m going to kill you, you . . .

bitch!” Solis ran with her baby to the kitchen and wedged a chair under the door.

Solis called 911 and hid until the police arrived.

      When law enforcement officers arrived, they heard glass breaking and items

being thrown around inside Solis’ home and someone yelling for “Angel.” A

detective with the Whitfield County Sheriff’s Office testified that, as he entered Solis’

home, Miller, who was naked, ran at him. He had to subdue her with a taser. Miller

told the detective that she had pulled the air conditioning unit out so that she could

get inside the house and get Angel. The detective testified that Miller’s behavior was

very erratic, that she disobeyed his orders to sit still, that she was “scooting around

. . . on her knees and sliding around all over the floor, continually coming out of the

                                           3
cover that [they] were trying to keep her covered with until [they] could get a female

[officer] there.” The deputy that had accompanied the detective described Miller as

aggressive. The detective eventually had to use his taser a second time to subdue

Miller.

      The detective and the deputy testified that they believed Miller was under the

influence of a drug, possibly methamphetamine, synthetic marijuana, or “bath salts.”

During the 40 minutes that Miller was with the responding officers, including a

female corrections officer, she did not tell any of them that she was fleeing from an

assailant, nor did she indicate that anyone had sexually assaulted her. Beebe had

returned at Head’s request and they both spoke with the deputy about Miller’s

behavior.

      At trial, Miller claimed that she had broken in to Solis’ home to escape Head,

whom she claimed had spiked her drink with Rohypnol and had sexually assaulted

her. However, she also testified that, when she decided to enter Solis’ home, her

alleged assailants had already stopped chasing her and had gone back home.

      1. Miller contends the trial court erred in failing to charge the jury on the

concepts of “affirmative defense” and “justification.” Although the record shows that

the court did, in fact, charge on the concept of justification as it pertained to using

                                          4
reasonable force to protect oneself from an assault, Miller argues that the trial court’s

charge was insufficient because it did not adequately address her sole defense to

criminal trespass, that is, that she was justified in entering Solis’ home and damaging

her property to escape from an ongoing assault. For the following reasons, we

disagree.

      “A criminal defendant is ordinarily required to present written requests for any

desired jury instructions.” (Citation and punctuation omitted.) Woods v. State, 291

Ga. 804, 809 (3) (733 SE2d 730) (2012). See also OCGA § 5-5-24 (b). However, “[i]f

an affirmative defense is raised by the evidence . . . the trial court must present the

affirmative defense to the jury as part of the case in its charge, even absent a request.”

(Citation and punctuation omitted.) Watts v. State, 259 Ga. App. 531, 533 (3) (578

SE2d 231) (2003). See also Price v. State, 289 Ga. 459 (2) (712 SE2d 828) (2011)

(“The trial court must charge the jury on the defendant’s sole defense, even without

a written request, if there is some evidence to support the charge.”) (citation and

punctuation omitted). “[A]n affirmative defense is one that admits the doing of the




                                            5
act charged but seeks to justify, excuse, or mitigate it.” (Punctuation and footnote

omitted.) Strickland v. State, 267 Ga. App. 610, 611 (600 SE2d 693) (2004).2

      In this case, Miller testified that she bit and scratched Head to escape a sexual

assault and that she damaged Solis’ home and broke into it in order to escape her

assailant. Miller’s counsel orally requested and the trial court gave the jury a charge

on justification, but it pertained specifically to the use of force against another person

and did not address justification for other criminal acts such as trespass.3 The trial



      2
         The court was not required to instruct the jury on the definition of
“affirmative defense” absent a written request when, as in this case, the charge as a
whole would not mislead a jury of average intelligence as to what was required to
prove the affirmative defense of justification. See Redd v. State, 232 Ga. App. 666,
667 (2) (b) (502 SE2d 467) (1998).
      3
          The court gave the following charge:

      A person is justified in threatening or using force against another person
      when and to the extent that she reasonably believes that such threat or
      force is necessary to defend herself or a third person against the other’s
      imminent use of unlawful force. A person is justified in using force that
      is intended or likely to cause death or great bodily harm only if that
      person reasonably believes that such force is necessary to prevent death
      or great bodily injury to herself or a third person or to prevent the
      commission of a forcible felony. The State has the burden of proving
      beyond a reasonable doubt that the defendant was not justified.

                                            6
court, in its order denying Miller’s motion for a new trial, explained that it was not

required to give a justification charge with respect to the criminal trespass counts

because the evidence was insufficient to support such a charge. The court explained:

      Here, upon leaving Mr. Head’s residence, Ms. Miller had options
      available to her apart from breaking into a neighbor’s residence: she
      could have called the police, she could have requested entry to a nearby
      house to call the police, or she could have just run down the street and
      hid. There was no immediate threat such that she needed to damage the
      air conditioner and break into Ms. Solis’ residence.


Indeed, Solis’ home was a mere 55 feet away from Head’s home. In the time it took

Miller to rip an air conditioning unit from the window and break in, her allegedly

pursuing assailants should have been able to catch her. More significantly, however,

Miller’s own testimony supported the court’s findings. She admitted that, when she

entered Solis’ home, her assailants had stopped chasing her and had gone home.

Given this evidence, the court did not err in declining to give a charge on justification

as it pertained to the criminal trespass counts. See Moon v. State, 244 Ga. App. 443,

446 (3) (535 SE2d 771) (2000) (The trial court did not err in failing to charge, sua

sponte, on justification where the evidence showed that the defendant, a drug addict,




                                           7
had options available to him other than stealing a car in order to drive to a clinic to

get his medication.).

      2. Miller contends that her trial counsel was ineffective because he did not

request the jury charges discussed in Division 1, supra. However, where the evidence

does not support the giving of a charge, counsel’s failure to request the charge does

not amount to ineffective assistance. See, e.g., Alston v. State, 277 Ga. App. 117,

117-118 (1) (a) (625 SE2d 475) (2005) (withdrawal of request for jury charge on an

affirmative defense was not ineffective assistance where the evidence did not support

such a defense); Davis v. State, 209 Ga. App. 187, 190 (6) (433 SE2d 366) (1993)

(counsel was not ineffective based on jury charge where defendant failed to show that

the charges in question were erroneous). Consequently, the trial court did not err in

denying Miller’s claim of ineffective assistance of counsel.

      Judgment affirmed. Dillard and McFadden, JJ., concur.




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