Joseph Gene Walker v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES, J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 25, 2021
In the Court of Appeals of Georgia
A21A0591. WALKER v. THE STATE.
MILLER, Presiding Judge.
A Henry County jury found Joseph Gene Walker guilty of a violation of a
sexual offender restriction, child molestation, loitering and prowling, public
indecency, public drunkenness, and obstruction of an officer. The trial court imposed
a 30-year sentence, with the first 15 years to be served in confinement and the
remainder to be served on probation. Walker appeals from his convictions and
sentence, arguing that (1) the evidence was insufficient to sustain his conviction for
violation of a sexual offender restriction; (2) his trial counsel rendered ineffective
assistance of counsel by failing to file a demurrer to the violation of a sexual
restriction offense; (3) the trial court erred by denying his motion to bifurcate the
proceedings; (4) the trial court erred by allowing the State to present victim impact
testimony in the guilt phase of his trial; and (5) the cumulative effect of the errors
warrants a new trial. For the reasons that follow, we reverse Walker’s conviction for
violation of a sexual offender restriction, but we affirm Walker’s remaining
convictions.
Viewed in the light most favorable to the jury’s verdicts,1 the record adduced
at trial shows that in July 2017, Donique Goode lived with her four year-old son at
the Echelon Park Apartments in Henry County, Georgia, and Goode’s 16 year-old
niece, Danira West, visited her that summer. While Goode was at work on July 29,
2017, West took Goode’s 4 year-old son to the park across from the home and noticed
that a man, whom she later identified as Walker, watched her as she played with
Goode’s son. As West continued to play with Goode’s son at the playground, West
saw Walker touch his penis. West testified that Walker’s penis was out of his pants,
that she saw Walker’s penis as he “touched” it, and she described Walker’s
movements as him “shaking his penis.” West said that it appeared that Walker wanted
her to see him touching his penis, and he continued touching his penis as he walked
up a nearby stairway. West then called Goode who then called 911.2
1
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
Goode’s 911 call was admitted into evidence and played for the jury.
2
Michael Blythe, a police officer with the McDonough Police Department, was
dispatched to the playground. As Officer Blythe drove around the apartment complex
searching for Walker, West flagged him down, told him that her aunt had called 911,
and recounted to him Walker’s actions. While speaking with Officer Blythe, West
saw Walker nearby and pointed him out to Officer Blythe, and Officer Blythe ordered
Walker to come out from among the bushes. At that point, Walker took off running
in another direction, and Officer Blythe and another officer who responded to the
playground chased after Walker as he continued to flee the area. After Walker was
apprehended, Officer Blythe smelled the odor of alcohol from Walker and asked him
if he had been drinking, and Walker answered that he had drunk a margarita.
Walker was indicted on one count of violation of a sexual offender restriction
(OCGA § 42-1-15), two counts of child molestation (OCGA § 16-6-4 (a)), one count
of loitering or prowling (OCGA § 16-11-36), one count of public indecency (OCGA
§ 16-6-8), one count of public drunkenness (OCGA § 16-11-41), and one count of
obstruction of an officer (OCGA § 16-10-24 (a)). The jury found Walker guilty on all
counts, and the trial court imposed a 30-year sentence, with the first 15 years to be
served in confinement and the remainder to be served on probation. Walker
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subsequently filed a motion for new trial, which the trial court denied after a hearing.
This appeal followed.
1. First, Walker argues that the evidence was insufficient to sustain his
conviction for violation of a sexual offender restriction because the State failed to
present evidence that he committed a crime that required registration on or after July
1, 2008. After a close review of the relevant statutory provisions, we agree and
reverse Walker’s conviction on this count.
Ordinarily, when reviewing a sufficiency of the evidence claim, the standard
we apply is “whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. This court does not reweigh evidence or resolve conflicts
in testimony; instead, evidence is reviewed in a light most favorable to the verdict,
with deference to the jury’s assessment of the weight and credibility of the evidence.”
(Citation omitted.) Little v. State, 332 Ga. App. 553 (1) (774 SE2d 132) (2015).
Because Walker’s sufficiency of the evidence claim primarily involves the
interpretation of a statute, however, “[a]s in all appeals involving the construction of
statutes, our review is conducted under a de novo standard.” (Citation omitted.)
Williams v. State, 299 Ga. 632, 633 (791 SE2d 55) (2016).
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“Pursuant to the rules of statutory construction, we presume that the General
Assembly meant what it said and said what it meant.” Williams, supra, 299 Ga. at
633. Additionally,
[i]n statutory interpretation cases such as this, it is well settled that a
statute draws its meaning from its text. When interpreting a statute, we
must give the text its plain and ordinary meaning, view it in the context
in which it appears, and read it in its most natural and reasonable way.
For context, we may look to other provisions of the same statute, the
structure and history of the whole statute, and the other law —
constitutional, statutory, and common law alike — that forms the legal
background of the statutory provision in question.
(Citations and punctuation omitted.) State v. Coleman, 306 Ga. 529, 530 (832 SE2d
389) (2019).
Here, Count 1 of the indictment alleged that Walker violated OCGA § 42-1-15,
which states in relevant part that “it shall be unlawful for any individual or for any
person who is or should be registered on another state’s sexual offender registry to
loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or
area where minors congregate.” OCGA § 42-1-15 (d). As reflected above, this
particular subsection of the statute, by itself, does not contain any date limitations or
constraints as to when the defendant’s prior act occurred. In looking at the statutory
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scheme, however, we note that OCGA § 42-1-15 is titled in part: “Restrictions on
residence of or loitering by registered sex offender for acts committed after July 1,
2008[.]” (Emphasis supplied.)
Moreover, in looking at the structure of OCGA § 42-1-15, we note that this
statute is situated next to two similar statutory provisions within the same article that
have nearly identical titles and provisions, but contain different date limitations.
OCGA § 42-1-16 is titled in part, “[r]estrictions on residence of or loitering by
registered sex offender for acts committed between July 1, 2006 and June 30, 2008[,]”
and contains several provisions within the statute that specify date limitations.3
Notably, OCGA § 42-1-15 and OCGA § 42-1-16 both contain identical provisions
prohibiting an individual who is required to register from loitering at any child care
facility, school, or area where minors congregate.4 Further, OCGA § 42-1-17 is partly
titled, “[r]estrictions on residence of or loitering by registered sex offender for acts
3
For example OCGA § 42-1-16 (b) states that “[a]ny individual who
committed an act between July 1, 2006, and June 30, 2008, for which such individual
is required to register shall not reside within 1,000 feet of any child care facility,
church, school, or area where minors congregate. (Emphasis supplied).
4
See OCGA §§ 42-1-15 (d), 42-1-16 (d) (“[I]t shall be unlawful for any
individual to loiter, as prohibited by Code Section 16-11-36, at any child care facility,
school, or area where minors congregate.”).
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committed between June 4, 2003 and June 30, 2006[.]” That statute also contains
several provisions with date limitations.5
Based on our analysis of the statutory scheme, we are compelled to conclude
that OCGA § 42-1-15 (d) only applies to acts requiring registry that were committed
on or after July 1, 2008. The legislature titled OCGA § 42-1-15 as “[r]estrictions on
residence of or loitering by registered sex offender for acts committed after July 1,
2008[,]” and the legislature enacted other statutes with similar or identical provisions
within the same article that expressly contain date limitations, which evinces an intent
on the part of the legislature that OCGA § 42-1-15 and the loitering prohibition
therein only applies to those who are required to register for acts that were committed
during a specific time period.
We reject the State’s argument that the legislature did not intend for the date
limitation to apply to the entire statute. The State’s argument is based on the fact that,
because Walker was an “individual”6 under OCGA § 42-1-15 and therefore required
5
See, e.g., OCGA § 42-1-17 (b) (“Any individual who committed an act
between June 4, 2003, and June 30, 2006, for which such individual is required to
register shall not reside within 1,000 feet of any child care facility, school, or area
where minors congregate.”).
6
OCGA § 42-1-15 (a) (1) defines “individual” as “a person who is required to
register pursuant to OCGA § 42-1-12.” OCGA § 42-1-12 (a) (9) (B) (xi) requires a
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to register as a sexual offender, the prohibition against loitering by an “individual”
in OCGA § 42-1-15 (d) was applicable to Walker. We do not construe OCGA § 42-1-
15 in such a manner. We note that OCGA § 42-1-16 (a) (2) also defines “individual”
in the same manner as OCGA § 42-1-15 (a) (1), and it also contains an identical
provision to OCGA § 42-1-15 (d) that prohibits sexual offenders from loitering. See
OCGA § 42-1-16 (d) (prohibiting sexual offenders from loitering at any child care
facility, school, or areas where minors congregate). In construing statutes, we adhere
to the fundamental principle “that require[s] us to construe the statute[s] according
to [their] terms, to give words their plain and ordinary meaning, and to avoid a
construction that makes some language mere surplusage.” (Citation omitted.) Coates
v. State, 304 Ga. 329, 330 (818 SE2d 622) (2018). Additionally, “all statutes are
presumed to be enacted by the legislature with full knowledge of the existing
condition of the law and with reference to it. They are therefore to be construed in
connection and in harmony with existing law[,]” “and we [do] not presume that the
legislature intended that any part of the criminal code to be without meaning[.]”
(Citations and punctuation omitted.) Mahone v. State, 348 Ga. App. 491, 495-496 (2)
person to register as a sexual offender if they have been convicted for “[a]ny conduct
which, by its nature, is a sexual offense against a victim who is a minor[]” which was
committed after June 30, 2001.
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(823 SE2d 813) (2019). Because the State’s interpretation of OCGA § 42-1-15 (d)
would render OCGA § 42-1-16 (d) meaningless and mere surplusage, we reject the
State’s interpretation and hold that OCGA § 42-1-15 (d) applies to acts requiring
registry that were committed on or after July 1, 2008.
Turning to the evidence presented for this offense, the State presented evidence
that Walker was required to register as a sexual offender due to his conviction for
statutory rape that occurred in October 2002. Given our holding that the loitering
prohibition in OCGA § 42-1-15 (d) applies only to acts requiring registry that were
committed on or after July 1, 2008, Walker’s statutory rape conviction which
occurred in October 2002 was insufficient to prove a violation of the loitering
provision in OCGA § 42-1-15 (d), and we therefore reverse his conviction and vacate
the sentence entered on that count.
2. Second, Walker argues that his trial counsel rendered ineffective assistance
of counsel by failing to file a general demurrer to the violation of a sexual offender
restriction offense. Because we have reversed Walker’s conviction on this count, this
claim is moot. See Johnson v. State, 214 Ga. App. 77, 81 (2) (447 SE2d 74) (1994)
(claim that counsel was ineffective for failing to file a motion for directed verdict on
9
a count of conviction was moot once Court of Appeals concluded that the evidence
was insufficient to support that conviction).
3. Next, Walker argues that the trial court erred by denying his motion to
bifurcate the violation of a sexual offender restriction charge from the remaining
charges. We conclude that, pretermitting whether the trial court erred by denying
Walker’s motion to bifurcate, any error was harmless.
The test for determining nonconstitutional harmless error is whether it
is highly probable that the error did not contribute to the verdict. And in
considering whether a trial court’s error was harmful, we weigh the
evidence as we would expect reasonable jurors to have done so, as
opposed to assuming that they took the most pro-guilt possible view of
every bit of evidence in the case.
(Citations and punctuation omitted.) Lofton v. State, 309 Ga. 349, 356-357 (3) (b)
(846 SE2d 57) (2020); see also Mangrum v. State, 244 Ga. App. 559 (536 SE2d 217)
(2000) (applying harmless error test to defendant’s claim that the trial court erred by
failing to sever the offenses).
Here, Walker made a motion to bifurcate the violation of a sexual offender
restriction from the remaining charges, arguing that his status as a registered sex
10
offender was irrelevant to the other charges and that he would be prejudiced by the
admission of that evidence at trial. The trial court, however, denied Walker’s motion.
We conclude that, pretermitting whether the trial court erred by denying
Walker’s motion to bifurcate the violation of a sexual offender restriction charge from
the remaining charges, any error was harmless. The State presented testimony from
West that Walker took his penis out of his pants and began touching and “shaking his
penis” while she and her cousin played at a playground West further testified that it
appeared that Walker wanted to make sure that she saw him touching his penis.
Additionally, Walker fled from law enforcement after West identified him to the
police officers, and the officers noticed the odor of alcohol emanating from Walker
after he was apprehended. In light of this evidence, we conclude that any error in the
trial court’s denial of Walker’s motion to bifurcate the proceedings was harmless. See
Mangrum, 244 Ga. App. at 559 (holding that the trial court’s error in denying the
defendant’s motion to sever the offenses was harmless where the State presented
strong evidence of the defendant’s guilt).
4. Walker further argues that the trial court erred by allowing the State to
present victim impact evidence during the guilt phase of his trial. We agree that the
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trial court erred by permitting the State to present victim impact evidence during the
guilt phase of Walker’s trial, but we conclude that the error was harmless.
The admissibility of victim impact evidence is reviewed for abuse of
discretion. See Lawler v. State, 276 Ga. 229, 232 (3) (576 SE2d 841) (2003)
(reviewing the admissibility of victim impact testimony under the abuse of discretion
standard).
“Under Georgia law, evidence about a crime victim’s personal characteristics
and the emotional impact of the crime on the victim, the victim’s family, and the
victim’s community generally is not admissible in the guilt/innocence phase of a
criminal trial.” Lofton, supra, 309 Ga. at 363 (6) (b) (ii). This is because “background
information about the victim that is not relevant to the issues in the guilt/innocence
phase, particularly the sort of background information likely to engender the jury’s
sympathies, should not be presented to the jury during that phase.” (Citation omitted.)
Id. at 363-364 (6) (b) (ii).
Here, over Walker’s objection, the State questioned West as to how Walker’s
actions impacted her, and West responded that she pays attention when someone is
watching her to make sure that they would not try to harm her. The State also
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questioned West about whether she has visited Goode at her apartment since the
incident, and West responded that she had not returned to Goode’s home.
We conclude that the trial court erred by permitting the State to present victim
impact testimony from West in the guilt phase of his trial. West’s testimony about
how Walker’s actions subsequently affected her daily life was not relevant to the
jury’s determination of Walker’s guilt and inappropriately appealed to the jury’s
sympathies. See Lofton, supra, 309 Ga. at 364 (6) (b) (ii) (holding that the admission
of evidence relating to the victim’s career progression and his father’s death was
inadmissible during the guilt phase of the defendant’s trial because the evidence was
not relevant to the determination of the defendant’s guilt and it inappropriately
appealed to the jury’s sympathies).
Nevertheless, we conclude that the error in the admission of the victim impact
evidence was harmless. See Willis v. State, 304 Ga. 686, 715-716 (16) (820 SE2d
640) (2018) (applying harmless error test to the improper admission of victim impact
testimony). As stated above in Division 3, the State presented testimony from West
that Walker took his penis out of his pants and began touching and “shaking his
penis.” West further testified that it appeared that Walker wanted to make sure that
she saw him touching his penis. Additionally, Walker fled from law enforcement after
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West identified him to the police officers, and the officers noticed the odor of alcohol
emanating from Walker after he was apprehended. Therefore, in light of this strong
evidence of guilt, we conclude that the error in the admission of impact testimony
during the guilt phase of Walker’s trial was harmless. See id. (holding that the error
in the admission of the victim impact evidence was harmless because the State
presented strong evidence of the defendant’s guilt).
5. Lastly, Walker argues that the cumulative effect of the errors by the trial
court and his trial counsel entitles him to a new trial.
Georgia has recently adopted a cumulative error rule, stating that
Georgia courts considering whether a criminal defendant is entitled to
a new trial should consider collectively the prejudicial effect of trial
court errors and any deficient performance by counsel — at least where
those errors by the court and counsel involve evidentiary issues.
(Citation and punctuation omitted.) Showers v. State, 353 Ga. App. 754, 761 (2) (d)
(839 SE2d 245) (2020).
In this case, we have considered the pretermitted error of the trial court’s denial
of Walker’s motion to bifurcate and the improper admission of victim impact
testimony, and we conclude that the cumulative effect of these errors does not warrant
a new trial in light of the strong evidence of Walker’s guilt. See Allen v. State, 310
14
Ga. 411, 417 (4) (851 SE2d 541) (2020) (holding that the cumulative effect of the
trial court’s errors did not warrant a new trial).
Accordingly, for the reasons stated above, we reverse Walker’s conviction for
violation of a sexual offender restriction, but we affirm his remaining convictions.
Judgment affirmed in part and reversed in part. Hodges, J., and Senior
Appellate Judge Herbet E. Phipps, concur.
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