Harper v. the State , 338 Ga. App. 535 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, 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
August 18, 2016
In the Court of Appeals of Georgia
A16A1008. HARPER v. THE STATE.
ANDREWS, Presiding Judge.
David Lamar Harper appeals pro se from the judgment of conviction entered
on jury verdicts finding him guilty of two counts of criminal trespass in violation of
OCGA § 16-7-21 (a) and (b) (2). For the following reasons, we affirm the conviction
for violation of OCGA § 16-7-21 (a) and reverse the conviction for violation of
OCGA § 16-7-21 (b) (2).
The state produced the following evidence: Harper was acting alone as a bail
recovery agent for a professional bondsman when he entered the residence of Tina
McDaniel through a locked door, without McDaniel’s knowledge or permission, and
arrested Stephen Collier inside the residence on behalf of the bondsman for the
purpose of surrendering Collier to state custody because his criminal bond had been
forfeited. At the time of Harper’s intrusion, McDaniel was changing clothes in her
bedroom when she heard her daughter scream, and she ran to find Harper inside her
residence holding Collier to the floor while handcuffing him. McDaniel asked Harper
who he was, and Harper responded that “he was Houston County.” Based on this
response, McDaniel mistakenly thought that Harper was a Houston County police
officer. Harper never identified himself as a bail recovery agent. Collier did not reside
at the McDaniel residence – he was an acquaintance of McDaniel who was at the
residence that day to perform work on a vehicle located at the residence. Before
taking Collier from the residence, Harper told McDaniel that he had come in through
the back door, and that she “might need to get [her] door fixed.” Photographs of the
door showed the property damage caused by Harper when he entered the residence
through the locked door. After McDaniel reported the intrusion to police, Harper was
arrested and charged with two counts of criminal trespass.
1. Even assuming (without deciding) that there was compliance with the
licensing, registration, and other requirements for bail recovery agents (see OCGA
§§ 17-6-56 through 17-6-58), there is no merit to Harper’s contention that his conduct
as a bail recovery agent justified his entry into the residence without McDaniel’s
consent for the purpose of seizing and arresting Collier on the forfeited criminal
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bond. Accordingly, there is no merit to Harper’s contention that justification (see
OCGA § 16-3-20) was a complete defense to his prosecution for criminal trespass.
In the event of a forfeiture on a criminal bond by a defendant, a professional
bondsman acting as a surety on the bond has the right to arrest and surrender the
defendant into the state’s custody, and may hire a bail recovery agent for that purpose.
See OCGA §§ 17-6-54 to 17-6-58; 17-6-70 to 17-6-71. The bondsman’s right to
arrest the defendant arises from the bond agreement between the bondsman and his
principal, the defendant. McCoy v. Johnson, 176 FRD 676, 679 (N.D. Ga. 1997);
Raburn Bonding Co. v. State, 244 Ga. App. 386, 388 (535 SE2d 763) (2000).
When a person is arrested and released on bond, he is transferred from
the custody of the sheriff to the custody of the bondsman. The control
of a bondsman over his principal is “a continuance of the original
imprisonment.” Taylor v. Taintor, 83 U. S. 366, 370, 21 L.Ed. 287(1872); Coleman v. State, 121 Ga. 594, 597, 49 S.E. 716 (1905).
Therefore, “when a prisoner is out on bond he is still under court
control, though the bounds of his confinement are enlarged. His
bondsmen are his jailers.” Carlson v. Landon, 342 U. S. 524, 547, 72
S.Ct. 525, 538, 96 L.Ed. 547 (1952). The bondsmen have an interest in
ensuring that the principals appear in court, because if they do not
appear then the bond will be forfeited. As a result of their custody,
bondsmen “have their principal on a string, and may pull the string
whenever they please, and render him in their discharge.” Taylor, 83 U.
S. at 371. If the principal refuses to surrender, the bondsman under
common law can lawfully arrest him and return him to the sheriff’s
custody. Id. at 371; Clark v. Gordon, 82 Ga. 613, 616, 9 S.E. 333(1889); Bennett v. State, 169 Ga. App. 85, 311 S.E.2d 513 (1983). See
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Gray v. Strickland, 163 Ala. 344, 50 So. 152, 153 (Ala. 1909). Further,
the common law conferred on bondsman broad powers with which to
effectuate their seizures of principals. As the Supreme Court stated in
Taylor, bondsmen: “may exercise their rights in person or by agent.
They may pursue [the principal] into another State; may arrest him on
the Sabbath; and, if necessary, may break and enter his house for that
purpose. The seizure is not made by virtue of new process. None is
needed. It is likened to rearrest by the sheriff of an escaping prisoner.”
Taylor, 83 U. S. at 370 [(emphasis supplied)].
McCoy, 176 FRD at 679-680. Under the above authorities, the bond agreement
between Collier and the bondsman carried with it Collier’s implied consent that the
bondsman or Harper (as the bail recovery agent) may use reasonable force necessary
to arrest Collier on a forfeited bond, including the use of reasonable force to enter
Collier’s residence for that purpose. Bennett, 169 Ga. App. at 85-86; see State v.
Burhans, 89 P3d 629, 634 (Kan. 2004); State v. Mathis, 509 SE2d 155, 160 (N.C.
1998); People v. Oram, 217 P3d 883, 889-890 (Colo. App. 2009); Fitzpatrick v.
Williams, 46 F2d 40, 40 (5th Cir. 1931). But nothing in the bond agreement between
the bondsman and Collier can be construed to provide authority for the bondsman, or
the bondsman’s agent, to enter McDaniel’s residence (where Collier did not reside)
without obtaining McDaniel’s consent. Mathis, 509 SE2d at 161; Burhans, 89 P3d
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at 634.1 Our decision in Mease v. State, 165 Ga. App. 746 (302 SE2d 429) (1983), did
not hold otherwise. In that case, we concluded that the evidence did not support a
finding that licensed bondsmen acted with an “unlawful purpose” in violation of
OCGA § 16-7-21 (b) (1) when they entered the residence of a third party to arrest the
defendant on a forfeited bond, but we specifically declined to address the question of
whether or not the bondsmen entered the residence without authority. Id. at 747-748.
We find in the present case that, acting as the bondsman’s bail recovery agent, Harper
had no authority to enter McDaniel’s residence for the purpose of arresting Collier
without first obtaining McDaniel’s consent.
2. Nevertheless, we find that Harper’s criminal trespass conviction for violation
of OCGA § 16-7-21 (b) (2) must be reversed because the State failed to produce
evidence sufficient to establish the essential element of notice set forth in the charged
offense.
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“When bondsmen unilaterally apprehend their principals without any
assistance from law enforcement officials, courts have consistently found them not
to be state actors.” McCoy, 176 FRD at 682. Because there is no evidence in this case
that Harper acted with assistance from law enforcement officials, Fourth Amendment
requirements applicable to state actors are not implicated. See United States v.
Steiger, 318 F3d 1039, 1045 (11th Cir. 2003); Landry v. A-Able Bonding, Inc., 75 F3d
200, 204-205 (5th Cir. 1996); Jaffe v. Smith, 825 F2d 304, 307-308 (11th Cir. 1987);
Loden v. State, 199 Ga. App. 683, 687 (406 SE2d 103) (1991).
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Under the relevant provisions of OCGA § 16-7-21 (b) (2),
A person commits the offense of criminal trespass when he or she
knowingly and without authority . . . [e]nters upon the . . . premises of
another person . . . after receiving, prior to such entry, notice from the
owner, rightful occupant, or, upon proper identification, an authorized
representative of the owner or rightful occupant that such entry is
forbidden. . . .”
To be found guilty of this offense requires proof that the accused entered knowingly
and without authority after having received express notice that the entry was
forbidden. Wood v. State, 227 Ga. App. 677, 678 (490 SE2d 179) (1997); Scott v.
State, 130 Ga. App. 75, 78 (202 SE2d 201) (1973) (essential element was “showing
that [defendant’s] entry into the [premises] had previously been expressly
forbidden.”); Osborne v. State, 290 Ga. App. 188, 189 (665 SE2d 1) (2008) (essential
element was showing that entry had previously been “expressly forbidden.”). Express
notice is required because “[i]nherent in the statute’s notice provision is a requirement
that notice be reasonable under the circumstances, as well as sufficiently explicit to
apprise the trespasser what property he is forbidden to enter.” Rayburn v. State, 250
Ga. 657, 657 (300 SE2d 499) (1983) (emphasis supplied). As the Supreme Court
stated in Murphey v. State, 115 Ga. 201, 202 (41 SE 685) (1902), “it ought in every
case of this kind to be made to clearly appear, not only that the notice [not to enter]
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given to the accused was intended to apply to the particular [premises] alleged to have
been unlawfully entered upon, but also that such notice was conveyed to him by
language sufficiently explicit to enable him to so understand.” (emphasis supplied).
The State failed to produce any evidence showing that Harper was given the required
prior express notice not to enter McDaniel’s premises. The State’s allegation and
proof that Harper was given prior “constructive notice” not to enter the premises
when he entered without permission through a locked door was not sufficient to
establish the prior express notice required for violation of OCGA § 16-7-21 (b) (2).
3. Harper was also convicted of criminal trespass by violation of OCGA § 16-
7-21 (a) which provides in relevant part that: “A person commits the offense of
criminal trespass when he or she intentionally damages any property of another
without consent of that other person and the damage thereto is $500.00 or less. . . .”
Evidence that Harper damaged a door to McDaniel’s residence when he entered
without permission, including testimony and photographic evidence proving the
damage, was sufficient to support the jury’s guilty verdict on this offense. Jackson
v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
4. To the extent Harper contends the trial court erred by failing to give a
requested instruction to the jury that, as a bail recovery agent, he was justified based
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on lawful authority – the same authority as a law enforcement officer with a warrant
– to forcibly enter McDaniel’s residence to arrest Collier on the forfeited criminal
bond, we find no error. Because Harper failed to object, his contention is limited to
a plain error analysis – whether there was error, whether the error was obvious, and
whether it likely affected the outcome of the proceedings. Guajardo v. State, 290 Ga.
172, 176 (718 SE2d 292) (2011). As set forth in division 1, supra, in the absence of
any evidence that Collier resided at the residence, Harper had no authority to enter
McDaniel’s residence without McDaniel’s permission. We find no plain error in the
trial court’s failure to give the instruction.
Having affirmed Harper’s conviction under OCGA § 16-7-21 (a) and reversed
his conviction under OCGA § 16-7-21 (b) (2), we vacate the sentence and remand the
case for resentencing.
Judgment affirmed in part, reversed in part, vacated in part, and case
remanded for resentencing. Doyle, C. J., and Ray, J., concur.
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