In a rare move, the Court of Appeals reversed course yesterday. In the case of Overman v. State, A16A1761, the Court had previously denied a request for oral argument. The Court of Appeals rarely grants oral argument in criminal appeals. In fact, a review of the 2016 calendar reveals that this year the Court has only heard oral argument in eight criminal appeals as of the writing of this blog entry. In the Overman case, the Court changed its mind and has announced that oral argument will be granted.

Scott Overman and his longtime girlfriend Jennifer Tolbert were jointly tried on numerous counts alleging various sexual offenses perpetrated on their three young children. After a six day, hotly-contested trial both were convicted on several of the counts. Overman is currently serving 40 years in prison and Tolbert is serving 25 years. At trial, the validity of the allegations was strongly challenged by both defendants. One issue that became a major part of the case was venue.

The Georgia Constitution requires that the State prosecute criminal defendants in the county in which the crime allegedly occurred. The element of proper venue must be proven by the State at trial beyond a reasonable doubt. Numerous convictions have been reversed over the years due to the State failing to prove venue. In most of those cases, proof of venue could have been accomplished by asking merely one question: "did this event occur in ________ county?" Inexplicably, prosecutors have on dozens of occasions failed, or forgotten, to ask that one question. 

The Overman case presents much more complicated issues relating to venue. Primarily at issue is the venue jury instruction provided to juries every day in trials around the State. It reads as follows:

In a prosecution in any case in which it cannot be determined in what county the crime was committed, venue is proper and may be proved in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.

Overman objected to this jury instruction at trial, arguing that it is unconstitutional in that it lowers the State's burden of proof on venue. This same argument is being asserted on the appeal. The question is: how can the State meet its burden of proving venue beyond a reasonable doubt when the determination turns on a "might"?

This charge is particularly problematic under the facts of this case. There were three alleged victims in this case. Two of them maintained all along that none of the alleged crimes occurred in Floyd County, where this case was prosecuted. The evidence of venue in Floyd County was otherwise very tenuous. Most of the evidence was that, if they occurred at all, the crimes occurred in Houston County. Thus, the State here got away with prosecuting, and earning a conviction, in Floyd County for crimes that allegedly occurred in a different county! They accomplished this with the aid of the jury instruction in question.

Oral argument in the case will be heard on September 14, 2016 at 9:00 a.m. in the Braselton Municipal Courtroom, 5040 Highway 53, Braselton, Georgia. Although the Court of Appeals does not live stream the arguments yet (they are in the process of outfitting the downtown courtroom to do so), the arguments will be open to the public.