Curry v. the State ( 2015 )

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, 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/
February 5, 2015
In the Court of Appeals of Georgia
A14A2111. CURRY v. THE STATE.
DILLARD, Judge.
Following a jury trial, Darryl Curry was convicted of two counts of trafficking
of persons for sexual servitude, two counts of pimping for person under 18, two
counts of sexual exploitation of children, two counts of false imprisonment, two
counts of cruelty to children in the first degree, two counts of simple battery, and one
count of obstruction of a law-enforcement officer. Curry appeals, arguing that the trial
court erred by admitting similar-transaction evidence and by instructing the jury in
a manner that was inconsistent with the indictment. For the reasons set forth infra, we
affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that A. E., who is originally from Texas, began running away from home when she
was 14 or 15 years old, and eventually, she relocated to Georgia. A. E. testified that
she began running away because she had a difficult home life and experienced
physical and sexual abuse. When she was almost 16 years old, A. E. joined “the life,”
which she described as becoming the “property of somebody else.” Between the ages
of 16 and 17, A. E. worked for eight or nine pimps in Texas and Georgia, and she lost
count of how many men she had been sold to for sex. When she was 17 years old, A.
E. posted an advertisement online seeking work as a prostitute because she was low
on money, and Curry responded. Although she did not remember his exact words, A.
E. could tell from Curry’s response that he was a pimp and wanted her to work for
him.
Subsequently, A. E. met Curry at a hotel, and after a brief conversation, she
agreed to go live with him at a residence in Decatur. In the beginning, A. E. had her
own bedroom, but later, she moved into Curry’s room and began a sexual relationship
with him. A. E. felt that she had no choice but to have sex with Curry because she
thought he would harm her if she refused.
1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
2
While living with Curry, A. E. and the other girls would solicit clients to pay
them for sex, and they would have sex with these men at Curry’s house in the “work
room.” Curry set the prices and time frames for A. E. to meet clients, and she was
required to give him all of the money that she earned. Additionally, while working
for Curry, A. E. was not allowed to leave the house without him, say no to him, or
have any money. A. E. testified that Curry provided her with alcohol and drugs, and
she could not recall going a day sober.
At some point, Curry instructed A. E. to recruit another girl to work for him,
and she contacted her 16-year-old friend, S. S., in an attempt to do so. A. E. lied to
S. S. to lure her to Curry’s house, but after meeting Curry, S. S. ultimately agreed to
move in and begin working for him. And while living with Curry, S. S.—just like A.
E.—was sold to men to perform sexual acts, and she too was required to give all of
the proceeds to Curry. S. S. testified that she was “very, very scared” of Curry, and
that she wanted to go home.
On one occasion, Curry learned that A. E. had communicated with another
pimp, and he beat her with a belt and a wire hanger. Nonetheless, she continued to
comply with his directives because it was the only way to keep “from getting harmed”
and she did not want to “get beat” again. On another occasion, Curry took A. E. and
3
S. S. to a club where he gave them ecstasy, and when they returned home, he “took
advantage” of A. E. Later that night, after Curry fell asleep, A. E. ran out of the house
half naked and screaming for help. A neighbor heard her screams and called the
police, who then transported her to a nearby hospital for examination. The next
morning, police officers went to Curry’s house, kicked down the door, and found
Curry and S. S. inside. After inspecting the home, the officers arrested Curry and took
S. S. to a hospital.
Thereafter, Curry was charged with two counts of trafficking of persons for
sexual servitude, two counts of pimping for person under 18, two counts of sexual
exploitation of children, two counts of false imprisonment, two counts of cruelty to
children in the first degree, two counts of aggravated assault, two counts of
contributing to the delinquency of a minor, one count of obstruction of a law-
enforcement officer, one count of conspiracy to commit false statements, one count
of keeping a place of prostitution for person under 18, and one count of giving false
information to a law-enforcement officer. Curry moved for a directed verdict as to
one charge of contributing to the delinquency of a minor and the charge of conspiracy
to commit false statements, and the trial court granted that motion. After a jury trial,
Curry was found not guilty of both aggravated-assault charges and one count of
4
contributing to delinquency of a minor, but he was convicted on all remaining counts.
This appeal follows.
1. In his first enumeration of error, Curry argues that the trial court violated
OCGA § 24-4-404 (b) by admitting, over his objection, the testimony of L. B., a third
woman who claimed that Curry sold her to men as a prostitute. We disagree.
At the outset, we note that our review of a trial court’s decision to admit
similar-transaction evidence is for a “clear abuse of discretion.”2 And here, the record
reflects that, prior to trial, the State notified Curry that it intended to present similar-
transaction evidence under OCGA § 24-4-404 (b).3 Specifically, the State planned to
present testimony from L. B. that Curry “forced her to perform acts of prostitution”
in a “crack house” when she was 17 years old. Curry then filed a motion in limine to
exclude this evidence, arguing that it was not being offered for a proper purpose and
that any potential relevance of L. B.’s testimony would be substantially outweighed
by unfair prejudice. Ultimately, the trial court denied Curry’s motion, finding that L.
2
Jones v. State, 326 Ga. App. 658, 661 (757 SE2d 261) (2014).
3
See OCGA § 24-4-404 (b) (“. . . The prosecution in a criminal proceeding
shall provide reasonable notice to the defense in advance of trial, unless pretrial
notice is excused by the court upon good cause shown, of the general nature of any
such evidence it intends to introduce at trial . . . .”).
5
B.’s testimony was not improper character evidence, but rather, it was admissible to
show intent, motive, plan, and identity. Further, the court found that the probative
value of this evidence was not substantially outweighed by unfair prejudice.
At trial, L. B. testified that she and her 16-year-old friend met Curry at
Underground Atlanta in 2009 and agreed to leave with him. Afterwards, Curry took
them to a house, where L. B. lived for about a month, during which time he forced her
to have sex with him, and L. B. did not resist because she was frightened of Curry.
L. B. described Curry as a “pimp,” for whom she earned money as a prostitute against
her will. And while L. B. worked for Curry, he set the prices for her services, had
control over her at all times, and collected all of the money that she earned.
In considering Curry’s argument that L. B.’s testimony was inadmissible, we
begin with the text of recently enacted OCGA § 24-4-404 (b),4 which provides that
[e]vidence of other crimes, wrongs, or acts shall not be admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, including,
4
Because this case was tried after January 1, 2013, our new Evidence Code
applies. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence
Code applies “to any motion made or hearing or trial commenced on or after” January
1, 2013).
6
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . . . .5
And as we have previously explained, because our new Evidence Code is comparable
to the Federal Rules of Evidence, this Court will “give consideration and great weight
to constructions placed on the Federal Rules by the federal courts.”6 As such,
we—like the Eleventh Circuit—employ “a three-part test for evidence of other crimes
or acts to be admissible pursuant to Federal Rule of Evidence 404(b),”7 requiring that
(1) it must be relevant to an issue other than the defendant’s character;
(2) there must be sufficient proof to enable a jury to find by a
preponderance of the evidence that the defendant committed the act(s)
5
OCGA § 24-4-404 (b). Curry correctly notes that, under the old Evidence
Code, “course of conduct” and “bent of mind” were listed among the purposes for
introducing similar-transaction evidence, but “under the new Evidence Code, ‘course
of conduct’ and ‘bent of mind’ are no longer acceptable bases for admitting similar
transaction evidence.” Frost v. State, 328 Ga. App. 337, 342 (2) (761 SE2d 875)
(2014); see also Johnson v. State, 292 Ga. 22, 25 (2) n.3 (733 SE2d 736) (2012).
6
Jones, 326 Ga. App. at 660 (1) (punctuation omitted); see also Flading v.
State, 327 Ga. App. 346, 351 (2), n.6 (759 SE2d 67) (2014); Oliver v. State, 329 Ga.
App. 377, ___, n.7 (765 SE2d 606) (2014); Williams v. State, 328 Ga. App. 876, 879
(1), n.14 (763 SE2d 261) (2014).
7
Jones, 326 Ga. App. at 660 (1) (punctuation omitted); see also Lingo v. State,
329 Ga. App. 528, ___ (765 SE2d 696) (2014) (physical precedent only); United
States v. Edouard, 485 F3d 1324, 1345 II (C) (1) (11th Cir. 2007) (punctuation
omitted).
7
in question; and (3) the probative value of the evidence cannot be
substantially outweighed by undue prejudice, and the evidence must
satisfy Federal Rule of Evidence 403.8
As to the first prong of the test, Curry argues that the evidence was not
admissible for any proper purpose and served only as improper evidence of his
character and propensity to commit the crimes. Further, as to the trial court’s finding
that the similar-transaction evidence was relevant to prove his intent, he argues that
his intent was not at issue because his defense strategy was to show that the victims
were not credible, not that he did not intend to commit the crimes charged. This
argument, however, is belied by the record. Indeed, contrary to Curry’s argument, a
defendant who enters a not-guilty plea “makes intent a material issue which imposes
a substantial burden on the government to prove intent, which it may prove by
8
Jones, 326 Ga. App. at 660 (1) (punctuation omitted); see also Lingo, 329 Ga.
App. at ___; United States v. Lamons, 532 F3d 1251, 1265-66 (II) (B) (11th Cir.
2008). Under OCGA § 24-4-403, which mirrors Federal Rule of Evidence 403,
“[r]elevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Jones, 326 Ga. App. at 660 (1), n.9 (punctuation omitted);
see also Butler v. State, 292 Ga. 400, 406 (3) (a), n. 11 (738 SE2d 74) (2013);
Williams, 328 Ga. App. at 879 (1); Flading, 327 Ga. App. at 351 (2); Ronald L.
Carlson & Michael Scott Carlson, Carlson on Evidence, p. 74 (2d. ed. 2014).
8
qualifying Rule 404 (b) evidence absent affirmative steps by the defendant to remove
intent as an issue.”9
In the case sub judice, Curry pleaded not guilty, thereby making his intent a
material issue and placing a substantial burden on the State to prove intent, and he
took no affirmative steps to remove intent as an issue.10 In fact, contrary to Curry’s
contention that his defense strategy was not to show that he lacked intent to commit
the offenses, his defense counsel argued to the jury that the victims were “very close
friends” who took advantage of Curry when he was only trying to help them. Suffice
it to say, Curry’s position that he intended only to help the victims, but not to commit
any criminal offenses, squarely challenges the element of intent. And under these
circumstances, the trial court did not err in finding that the first prong of the similar-
9
Edouard, 485 F3d at 1345 (II) (C) (1) (punctuation omitted); accord United
States v. Delgado, 56 F3d 1357, 1365 (III) (B) (11th Cir. 1995); see United States v.
Cardenas, 895 F2d 1338, 1342 (II) (A) (11th Cir. 1990) (explaining that “when a
defendant charged with conspiracy enters a not guilty plea, he makes intent a material
issue in the case and imposes a substantial burden on the government”); Johnson v.
State, 276 Ga. App. 505, 510 (4) (623 SE2d 706) (2005) (finding that by pleading
guilty, defendant required the State to prove his intent to commit theft, and therefore,
similar-transaction evidence was properly admitted).
10
See supra note 9.
9
transaction test was satisfied because the evidence at issue was admissible for a
purpose other than Curry’s character.11
Curry does not dispute that the second prong of our (and the Eleventh
Circuit’s) similar-transaction test is satisfied. And as to the third prong, Curry
summarily asserts that, because intent was not a disputed issue in the case, the
prejudicial effect of L. B.’s testimony substantially outweighed its probative value.
But we have already determined that Curry’s criminal intent was indeed a material
issue in this case, and he provides no further argument or citation to authority to
support his contention that the similar-transaction evidence was inadmissible on this
basis. Thus, Curry has waived this argument.12
Lastly, Curry maintains that—unlike A. E. and S. S.—L. B. testified that she
did not solicit clients on chat lines, he did not give her drugs, and he made her walk
11
See Jones, 326 Ga. App. at 660 (1) n.9. Because we find that the similar-
transaction evidence was relevant to show Curry’s intent, we need not address the
trial court’s findings that it was also relevant to show motive, plan, and identity.
12
See Mathis v. State, 299 Ga. App. 831, 839 (2) (c) (684 SE2d 6) (2009)
(finding that because appellant “failed to support [his] assertion with cogent argument
or citation of authority or to cite to the record to demonstrate where the purportedly
improper testimony was admitted, we will not consider it”); McBee v. State, 296 Ga.
App. 42, 46 (2) (b) (673 SE2d 569) (2009) (finding that appellant waived any
challenges to the sufficiency of the evidence because the appellant failed to support
his claim with any cogent argument or citation to authority).
10
the streets to meet potential clients. But to the extent Curry argues that his offenses
against L. B. and the charged offenses are not sufficiently similar to be admissible,13
we are not persuaded.
As we have previously explained, there is no requirement that “the prior crime
or transaction be absolutely identical in every respect.”14 Moreover, when considering
the admissibility of similar-transaction evidence, “the proper focus is on the
similarities, not the differences, between the separate crime and the crime in
question.”15 Here, as noted supra, L. B. testified that Curry sold her as a prostitute and
held her against her will, just like he did with the victims in this case. Indeed, the
evidence presented below shows that Curry sold all three victims to men as
prostitutes; required them to solicit their own clients; controlled the time, prices, and
13
See Humphrey v. State, 249 Ga. App. 805, 807 (1) (549 SE2d 144) (2001)
(noting that to be admissible as a similar transaction, prior offense must both be
offered for a proper purpose and there must be a sufficient connection between that
offense and the crime charged so that proof of the former tends to prove the latter).
14
Williams v. State, 263 Ga. App. 22, 24 (2) (587 SE2d 187) (2003)
(punctuation omitted); see Scruggs v. State, 295 Ga. 840, 841 (2) (764 SE2d 413)
(2014); Humphrey, 249 Ga. App. at 807 (1).
15
Evans v. State, 300 Ga. App. 180, 182 (684 SE2d 311) (2009) (punctuation
omitted); see Scruggs, 295 Ga. at 841 (2); Johnson v. State, 289 Ga. 22, 24 (2) (709
SE2d 217 (2011); Whitehead v. State, 287 Ga. 242, 249 (3) (695 SE2d 255) (2010);
Garvin v. State, 292 Ga. App. 813, 814 (665 SE2d 908) (2008).
11
location for their services; exerted control over them at all times; kept all proceeds;
and prevented them from leaving his house through threats and intimidation. And
given the striking similarities between these offenses, we conclude that the extrinsic
evidence of Curry’s prior bad acts was sufficiently similar to the charged offenses to
be admissible under OCGA § 24-4-404 (b).16
16
See Scruggs, 295 Ga. at 840-41 (2) (holding that the defendant’s attempt to
burn his sister’s house down was sufficiently similar to his charged offense of malice
murder in connection with torching and burning his longtime girlfriend to be admitted
as similar-transaction evidence); Thompson v. State, 323 Ga. App. 790, 793-94 (748
SE2d 465) (2013) (finding that three acts of forgery were sufficiently similar when,
in each case, defendant participated with others in attempts to cash fraudulent payroll
checks at small convenience stores, the checks were for similar amounts, and the
checks were all purportedly drawn from the same account); Walley v. State, 298 Ga.
App. 483, 484-85 (1) (680 SE2d 550) (2009) (finding that rape of an adult woman
was sufficiently similar to sex acts committed against a minor when both victims were
women with whom defendant had a prior good relationship and over whom he had
a position of authority); Williams, 263 Ga. App. at 24 (2) (finding that prior acts of
child molestation were sufficiently similar to a later act of child molestation even
though the sexual activity was different; the prior victim was a non-family member
and the later victim was the defendant’s daughter; and the prior bad act occurred ten
years earlier); Garvin, 292 Ga. App. at 815 (finding that two crimes were sufficiently
similar when both armed robbery victims were over 55 years of age and lived alone,
and in both cases, the defendant initially disavowed any knowledge of the crime
before later claiming mere presence at the crime scene); Evans v. State, 235 Ga. App.
577, 581 (3) (510 SE2d 313) (1998) (finding that two acts of selling cocaine were
sufficiently similar even though the two sales were made in different ways and in
different locations); see also Delgado, 56 F3d at 1366 (III) (B) (noting that “when
other crimes evidence goes to intent rather than identity a lesser degree of similarity
between the charged crime and the uncharged crime is required”).
12
Thus, for all of the foregoing reasons, we conclude that the trial court did not
abuse its discretion in finding that Curry’s prior bad acts were admissible under
OCGA § 24-4-404 (b).
2. Next, as to the false-imprisonment counts, Curry argues that the trial court
erred by charging the jury that unlawful detention may mean that the victim’s will is
overborne by her fear of the defendant causing her harm. Specifically, he claims that
this instruction allowed the jury to convict him based on a theory of guilt that the
grand jury never authorized. Again, we disagree.
As an initial matter, we note that appellate review of a jury charge is de novo.17
And here, in Counts 7 and 8 of the indictment, the grand jury charged Curry “with the
offense of FALSE IMPRISONMENT in violation of OCGA § 16-5-41 for the said
accused person . . . in violation of the personal liberty of [the victim], did unlawfully
confine [her] without legal authority.” Then, at the conclusion of trial, and over
Curry’s objection, the trial court gave the following jury instruction:
Counts 7 and 8 charge [Curry] with the offense of false imprisonment.
A person commits the offense of false imprisonment when, in violation
of the personal liberty of another, he confines or detains such person
17
Jordan v. State, 322 Ga. App. 252, 255 (4) (a) (744 SE2d 447) (2013).
13
without legal authority. Unlawful detention may mean when a victim’s
will is overborne by her fear of the defendant causing her physical harm.
In Georgia, a person commits the offense of false imprisonment when, “in
violation of the personal liberty of another, he arrests, confines, or detains such
person without legal authority.”18 Furthermore, as our Supreme Court has explained:
[I]f a jury charge recites the entire statutory definition of a crime and the
indictment does not, the deviation may violate due process unless a
limiting instruction is given. Without the remedial instruction, the
conviction is defective because there is a reasonable possibility that the
jury convicted the defendant of the commission of a crime in a manner
not charged in the indictment.19
However, it is a fundamental rule that jury instructions “must be read and considered
as a whole in determining whether the charge contained error.”20 And pretermitting
18
OCGA § 16-5-41 (a).
19
Hall v. Wheeling, 282 Ga. 86, 86 (1) (646 SE2d 236) (2007) (punctuation
omitted); see also Martin v. State, 303 Ga. App. 117, 120 (3) (692 SE2d 741) (2010)
(explaining that “[a] criminal defendant’s right to due process may be endangered
when an indictment charges the defendant with committing a crime in a specific
manner and the trial court’s jury instruction defines the crime as an act which may be
committed in a manner other than the manner alleged in the indictment” (punctuation
omitted)).
20
Alexander v. State, 308 Ga. App. 245, 246 (707 SE2d 156) (2011)
(punctuation omitted); see also Campbell v. State, 292 Ga. 766, 769 (3) (740 SE2d
14
whether the trial court erred in the case sub judice, it cured any defect in its jury
charge on false imprisonment by instructing the jury that the State must prove every
material allegation in the indictment beyond a reasonable doubt, further instructing
that the jury could only find the defendant guilty if it found beyond a reasonable
doubt that he committed the crime charged, and sending the indictment out with the
jury during its deliberations.21
For all of the foregoing reasons, we affirm Curry’s convictions.
115) (2013); Lee v. Swain, 291 Ga. 799, 800 (2) (a) (733 SE2d 726) (2012); Guajardo
v. State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011).
21
See Wheeler v. State, 327 Ga. App. 313, 319-20 (3) (758 SE2d 840) (2014)
(“[I]n the case sub judice, the trial court instructed the jury that the State had the
burden of proving every material allegation in the indictment beyond a reasonable
doubt, further instructed that the jury could only find the defendant guilty if it found
beyond a reasonable doubt that he committed the offenses ‘as described in the
indictment,’ and sent the indictment out with the jury during its deliberations.
Accordingly, these instructions, when considered in their entirety, cured any potential
error pertaining to the enticing-a-child-for-indecent-purposes charge.”); Machado v.
State, 300 Ga. App. 459, 462-63 (5) (685 SE2d 428) (2009) (finding that any
potential problem with a child-molestation charge was cured when “the trial court
read the indictment to the jury, instructed the jury that the state had the burden of
proving every material allegation in the indictment beyond a reasonable doubt and
sent the indictment out with the jury during its deliberations”); Heath v. State, 291
Ga. App. 594, 597 (5) (662 SE2d 362) (2008) (finding that a “potential due process
violation can be cured if the trial judge . . . gives a limiting instruction directing the
jury to consider only whether the defendant committed the offense charged in the
indictment”).
15
Judgment affirmed. Doyle, P. J., and Miller, J., concur.
16