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State v. Robertson

The trial court properly found that the State failed to prove venue in Fulton County beyond a reasonable doubt.

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Following a jury trial, David Robertson was convicted of two counts of rape and two counts of aggravated sodomy. Robertson filed a motion for new trial, which the trial court granted, finding that the State failed to prove venue in Fulton County beyond a reasonable doubt. The State now appeals, arguing that it presented sufficient evidence as to venue.1 For the reasons that follow, we affirm.

We first address the standard of review. OCGA § 5-5-50 states: “The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” While the statute may provide the standard of review in both civil and criminal cases, it “is not applicable in all situations where a trial court has entered a first grant of a motion for new trial.” O’Neal v. State, 285 Ga. 361, 362-363 677 SE2d 90 2009. For example, we review de novo a trial court’s first grant of a new trial on a special ground involving a question of law. Id. at 363; see also State v. James, 292 Ga. 440, 441 1 738 SE2d 601 2013.

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