Jenna Marie Garland v. State of Georgia ( 2021 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. 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.
November 1, 2021
In the Court of Appeals of Georgia
A21A1059. GARLAND v. THE STATE.
RICKMAN, Chief Judge.
Following a jury trial, Jenna Marie Garland was convicted on two misdemeanor
counts of violating the Georgia Open Records Act.1 She filed a motion for new trial,
which the trial court denied. Garland argues that the evidence was insufficient to
support her convictions. She further asserts that the trial court erred by denying her
motion for new trial because the court erroneously admitted expert testimony; failed
to grant a mistrial based upon comments made by the prosecutor during closing
argument; and denied her request to give two jury instructions. Finally, Garland
1
See OCGA § 50-18-74 (a).
argues that the trial court erred by refusing to sentence her under Georgia’s First
Offender Act.2 For the reasons set forth below, we find no error and affirm.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to support the jury’s verdict, and the defendant no
longer enjoys a presumption of innocence. We do not weigh the
evidence or judge the credibility of the witnesses, but determine only
whether the evidence authorized the jury to find the defendant guilty of
the crimes beyond a reasonable doubt in accordance with the standard
set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d
560) (1979).
(Citation and punctuation omitted.) Laster v. State, 340 Ga. App. 96, 97 (796 SE2d
484) (2017).
So construed, the evidence adduced at trial showed that in 2017, Garland
worked as press secretary for then-Mayor of Atlanta, Kasim Reed. In that role,
Garland was involved in responding to requests made for public records pursuant to
Georgia’s Open Records Act (the “Act”),3 which requires in general that a
government agency produce all existing and available public records responsive to
2
See OCGA § 42-8-60 et seq.
3
See OCGA § 50-18-70 et seq.
2
a request “within a reasonable amount of time not to exceed three business days of
receipt of [the] request.” See OCGA § 50-18-71 (b) (1) (A).
In early 2017, the newsroom of WSB-TV, a local news station, received a tip
that certain elected officials in Atlanta were getting “sweetheart deal[s]” on their
water bills. On February 28, 2017, Terah Boyd, a special projects producer from the
station, sent an open records request to the Director of Communications and
Community Relations for the City of Atlanta’s Department of Watershed
Management (the “Director”) seeking the water usage, billing, and payment records
associated with four separate addresses within the City of Atlanta (“the City”). The
Director forwarded the request to an employee within the Watershed Department who
had access to the computer system and who successfully obtained the records that
same day. The employee recognized that three of the requested billing records
corresponded to properties owned by then-Mayor Reed and his brother;4 that all three
of those properties were in arrears and had gone unpaid for a significant period of
4
As described more fully below, it was later discovered that Boyd had
inadvertently misspelled one of the street names in her original request for the
records; nevertheless, despite the misspelling, the records that were pulled and
ultimately produced corresponded with Boyd’s intended address.
3
time;5 and that two of the properties had disconnect notices and the third was under
investigation for water theft. The employee immediately notified the Director.
Because the requested records involved the mayor and his family, the Director
understood that she was required to obtain approval from the mayor’s office before
the records could be released and, consequently, she notified Garland of the request.
The Director sent the records to Garland for her review the following day, and was
instructed by Garland to hold them until she authorized their release. Garland did
ultimately authorize the release of the records, and they were produced to Boyd on
March 3, 2017, within the statutory deadline. As produced, the documents were
identifiable only by account number, but in response to a follow-up email from Boyd,
the Director clarified which address was associated with each account number.
Upon her receipt and review of the records, Boyd discovered that she had
misspelled one of the street names associated with the mayor’s brother in her initial
request for the documents. Consequently, on March 7, 2017, she submitted a second
open records request to the Director for the billing records associated with the
correctly-spelled address. In the interim, Boyd and Garland had a telephone
5
The mayor’s personal residence had an outstanding balance of $358.12, and
the two properties owned by his brother had outstanding balances of $2,870.64 and
$8,849.82, respectively. The latter had gone unpaid since 2012.
4
conversation in which Boyd relayed to Garland that she was looking into the
newsroom tip about elected officials receiving special treatment on their water bills
to see if it was worth reporting on. Garland subsequently sent a series of text
messages to the Director, instructing her to “be as unhelpful as possible,” “drag [the
request] out as long as possible,” and “provide information in the most confusing
format available.” Later that same day, Boyd sent a request for the billing records
associated with an address belonging to a member of Atlanta’s City Council.
On Friday, March 10, 2017, three days after the request for the record
associated with the corrected address, the Director, who had obtained the record but
had not yet received permission from Garland to release it, informed Boyd that she
would produce it on Monday, March 13. When Boyd had not received the record by
Tuesday, March 14, she emailed the Director for a status update. The Director had
been instructed by Garland to inform Boyd that the record would be produced the
following Monday, March 20. The record was finally produced on that date and
despite the initial misspelling of the address, it appeared to be the same record as that
which had already been produced, although it contained an additional billing cycle.
The following day, on March 21, Boyd sent the Director an open records
request for the billing records of 13 additional addresses associated with members of
5
Atlanta’s City Council, and reminded her that she was still awaiting the billing
records for the council member’s account that had been requested on March 7. The
Director informed Garland of the request. The additional records were compiled and
received by the Director three days later, on March 24, and showed that three of the
council members’ accounts were delinquent and had been subject to disconnect
notices. The Director sent the records to Garland for her review, and Garland
instructed her to inform Boyd that they would be produced two weeks later, on
Friday, April 7.
On April 7, however, Garland sent the Director a text message instructing her
to continue to “hold all [the records] until [Boyd] asks for [an] update.” When Boyd
asked for the status of the documents later that evening, the Director informed Boyd
that she had already left the office and that the records would be produced the
following Monday, April 10.
On the morning of Monday, April 10, after being instructed to do so by
Garland, the Director requested that her employee rerun the billing records for the
addresses associated with the council members. The updated records were prepared
and supplied to the Director by midday. The records reflected that two of the
members’ accounts remained in arrears, but that one of the member’s accounts had
6
been made current. Garland was informed that the updated records had been compiled
but continued to withhold authorization for their release.
Later on Monday, Boyd sent the Director an email inquiring as to the status of
the requested records and received no response. On Wednesday, April 12, still having
not obtained the records, an attorney representing WSB-TV sent a letter to the
Director as well as certain members of the legal department demanding the
production of the records. They were finally released on April 14.6
The Georgia Attorney General filed an accusation charging Garland with two
counts of violating the Act, alleging that she “knowingly and willingly attempt[ed]
to frustrate” access to records responsive to Boyd’s March 7, 2017 and March 21,
2017 requests. Garland was tried by a jury in the State Court of Fulton County and
was convicted on both counts. She filed a motion for new trial, which the trial court
denied. This appeal follows.
As an initial matter, we note that the Act mandates that “[a]ll public records
shall be open for personal inspection and copying, except those which by order of a
6
In the interim, the Director was terminated from her position.
7
court of this state or by law are specifically exempted from disclosure.”7 OCGA § 50-
18-71 (a). The statute further provides that upon request, a government agency “shall
produce” for inspection all responsive records “within a reasonable amount of time
not to exceed three business days of receipt of [the] request.” OCGA § 50-18-71 (b)
(1) (A). In the event that some, but not all, of the requested records are available
within three business days, the agency “shall make available within that period those
records that can be located and produced.” Id. Finally, if responsive records exist but
are unavailable within three business days of receipt of the request, “the agency shall,
within such time period, provide the requester with a description of such records and
a timeline for when the records will be available for inspection or copying and
provide the responsive records or access thereto as soon as practicable.” Id.
As relevant to this case, the Act is violated when a person “knowingly and
willingly frustrat[es] or attempt[s] to frustrate the access to records by intentionally
making records difficult to obtain or review.” OCGA § 50-18-74 (a). A person who
does so may face either civil or criminal penalties, or both. See id.; see also OCGA
§ 50-18-73 (a).
7
There is no dispute that the records at issue in this case were not exempted by
court order or by law. See OCGA § 50-18-72 (a).
8
1. Garland argues that the evidence was insufficient to support her convictions.
Specifically, she contends that the State failed to prove that venue was proper in
Fulton County; that she knowingly violated the Act in connection with Boyd’s March
7 request; and that she acted in bad faith in handling Boyd’s March 21 request. We
will address each in turn.
(a) Garland argues that the State failed to prove that the crimes were committed
in Fulton County. She maintains that proper venue in this case was the county from
which her text messages originated, and that the State failed to prove she was in
Fulton County when the messages were sent.
As a general rule, “all criminal cases shall be tried in the county where the
crime was committed.” Ga. Const. of 1983, Art. IV, Sec. II, Para. VI. “[V]enue is a
jurisdictional fact the State must prove beyond a reasonable doubt in every criminal
case.” (Citation and punctuation omitted.) Worthen v. State, 304 Ga. 862, 865 (3) (a)
(823 SE2d 291) (2019). Venue may be established using either direct or
circumstantial evidence, and the determination of whether it has been established
rests solely with the jury. See id. As with any challenge to the evidence of guilt, we
determine only whether, viewing the evidence in the light most favorable to the
verdict, a rational trier of fact could have found beyond a reasonable doubt that the
9
crime was committed in the county in which the defendant was tried. See id.; Martin
v. McLaughlin, 298 Ga. 44, 46 (779 SE2d 294) (2015).
Garland was accused of violating the statute by knowingly and willingly
frustrating Boyd’s access to water billing records by intentionally instructing the
Director to make it difficult for Boyd to obtain them. In other contexts, we have held
that venue in communication-based crimes is proper in either the county in which the
communication was sent or the one in which it was received. See generally Reeves
v. State, 346 Ga. App. 414, 417 (1) (a) (816 SE2d 401) (2018) (holding that venue in
crimes premised upon telephone communications is proper in “either the location
from which the call originated or the place at which the call is received”).
The evidence presented in this case established that the Director worked for the
Department of Watershed Management and that her office was in Fulton County; that
the Department of Watershed Management managed the water billing records sought
by Boyd; and that Garland’s office in City Hall was located in Fulton County. The
record further showed that upon receipt of Boyd’s requests, the subject records were
compiled and sent from the Director’s office to Garland’s office for her review and
to await her authorization of release. Finally, the evidence established that the text
communications were sent on business days and during business hours.
10
This evidence was sufficient to permit a rational jury to find beyond a
reasonable doubt that venue in Fulton County was properly laid. See Reeves, 346 Ga.
App. at 417 (1); see also Worthen, 304 Ga. at 865 (3). This is true even if there was
some evidence to suggest that Garland may not have been physically present in her
office when she sent one of the text messages at issue. See OCGA § 17-2-2 (h)
(providing, in crimes involving more than one county, “if . . . it cannot be determined
in what county a crime was committed, it shall be considered to have been committed
in any county in which the evidence shows beyond a reasonable doubt that it might
have been committed.”). Compare Mize v. State, 187 Ga. App. 418, 419 (2) (370
SE2d 525) (1988) (holding, in appellant’s trial for influencing a witness, that
evidence of venue was insufficient when, at the time the threat was made over the
telephone, the evidence showed that the victim was not in the county in which the
case was tried and there was no evidence presented as to appellant’s location).
(b) With respect to Garland’s conviction on the charge stemming from Boyd’s
March 7, 2017 request for records and Garland’s text messages instructing the
Director to “[d]rag this out as long as possible” and “provide information in the most
confusing format available,” Garland argues that the evidence was insufficient to
prove that she knowingly violated the Act. More specifically, she points out that
11
Boyd’s March 7 request asked for records associated with two separate addresses: one
“re-request” for the corrected address associated with the mayor’s brother, and the
second for an address associated with a different member of the city council.
According to Garland, although the accusation alleged specifically that she
“knowingly and willingly” attempted to frustrate access to the re-requested records
associated with the mayor’s brother, the State failed to prove that she knew about that
request and/or that her attempts related to that specific request as opposed to the
records associated with the council member’s address.
The record shows that Boyd’s March 7 re-request for the records associated
with the mayor’s brother was sent via email at 9:02 a.m., and its receipt was
confirmed by the Director at 11:13 a.m. At 2:15 p.m., Garland sent the Director a text
message stating that she had spoken to Boyd about the tips coming into the
newsroom, and she sent the text messages to “[d]rag this out as long as possible” and
“provide information in the most confusing format available” at 2:18 and 2:19 p.m.,
respectively. Boyd’s second March 7 request for the records associated with the other
city council member was not sent until 2:31 p.m. Boyd did not have any other
pending open record requests.
12
This evidence was sufficient for the jury to infer that Garland knew about
Boyd’s request for the corrected records, and to further support the jury’s
determination that Garland was attempting to frustrate access to the records
associated with the mayor’s brother – and not the records associated with the second
requested address – at the time she sent the text messages underlying the accusation.
See generally OCGA § 24-14-6 (“To warrant a conviction on circumstantial evidence,
the proved facts shall not only be consistent with the hypothesis of guilt, but shall
exclude every other reasonable hypothesis save that of the guilt of the accused.”);
Collett v. State, 305 Ga. 853, 855 (1) (828 SE2d 362) (2019) (“Where the jury is
authorized to find the evidence sufficient to exclude every reasonable hypothesis save
that of the accused’s guilt, this Court will not disturb that finding unless it is
insupportable as a matter of law.”) (citation and punctuation omitted). This
conclusion is further supported by evidence that Garland did, in fact, refuse to
authorize release of the re-requested records associated with the mayor’s brother in
a timely fashion. See generally Foster v. State, 288 Ga. 98, 100 (1) (701 SE2d 189)
(2010) (“[I]ntent may be inferred from conduct before, during and after the
commission of the crime.”) (citation and punctuation omitted).
13
(c) Garland further contends that the State failed to prove that she did not act
in good faith when, on April 7, she instructed the Director to “[h]old all” documents
responsive to Boyd’s March 21 request for records associated with the 13 council
members “until [Boyd] asks for [an] update.”
The Act provides that, “[i]t shall be a defense to any criminal action . . . that a
person has acted in good faith in his or her actions.” OCGA § 50-18-74 (a). During
the trial, Garland presented evidence that at the time that she sent the April 7 text
message, there was an ongoing federal investigation into the mayor’s administration
and that the City was inundated with open record requests; there were ongoing
discussions with the City’s law department as to what records were subject to
disclosure; and efforts were being made to inform the council members that their
billing records were being requested.
Nevertheless, the State also presented evidence that the records at issue had
already been prepared and reviewed and were otherwise ready to be produced at the
time that Garland sent the text directing that they be held. Further, the attorney who
handled open records issues for the City testified that there was no debate in the
City’s law department about whether the council members’ water billing records were
subject to production under the Act. And finally, there is no requirement in the law
14
that required the council members to be made aware that their water billing records
had been requested.
“Intent may be found by the jury upon consideration of the words, conduct,
demeanor, motive and all other circumstances connected with the act for which the
accused is being prosecuted.” See Palmer v. State, 243 Ga. App. 656, 657 (533 SE2d
802) (2000). In a criminal case, the question as to whether the requisite intent has
been shown is uniquely one for the jury, and we will not disturb the jury’s
determination as to intent unless its verdict is unsupportable as a matter of law. See
id. There was evidence from which a reasonable juror could find that Garland acted
with the requisite criminal intent when she sent a text message instructing the
Director to hold the records at issue in this case. See generally Barnes v. State, 296
Ga. App. 493, 495 (675 SE2d 233) (2009).
2. Garland argues that the trial court erred by allowing what she contends was
unqualified and irrelevant expert testimony on behalf of the State. We disagree.
During its case-in-chief, the State presented a witness to testify, over Garland’s
objection, “as an expert in journalism and First Amendment law, specifically open
records laws.” The trial court determined that journalism was a trade outside of the
15
kin of the average juror, and qualified the witness to testify as an expert about how
the Act is used by journalists.
Georgia law generally allows “a witness qualified as an expert by knowledge,
skill, experience, training, or education” to testify “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.” OCGA § 24-7-702 (b). In a criminal case, “the opinions of
experts on any question of science, skill, trade, or like questions shall always be
admissible; and such opinions may be given on the facts as proved by other
witnesses.” OCGA § 24-7-707. The trial court has broad discretion when accepting
or rejecting the qualifications of an expert witness, and we review a trial court’s
ruling on both the qualification of an expert and the admissibility of that expert’s
testimony for an abuse of discretion. See generally Flannigan v. State, 305 Ga. 57,
60 (2) (a) (823 SE2d 743) (2019); Hambrick v. State, 353 Ga. App. 666, 675 (3) (839
SE2d 664) (2020).
(a) The trial court qualified the State’s witness as an expert in journalism and
First Amendment law, and specifically open records laws. Garland argues that the
trial court erred by qualifying the expert because he did not have the requisite
qualifications specifically as to Georgia’s Open Records Act.
16
To qualify as an expert under Georgia law, “generally all that is required is that
a person must have been educated in a particular skill or profession,” and his or her
“special knowledge may be derived from experience as well as study.” Flannigan,
305 Ga. at 60 (2) (a).
The challenged witness held an undergraduate degree in journalism, a law
degree, and a Ph.D. in journalism. At the time of trial, he was a professor of
journalism at the University of Georgia, teaching both undergraduate and graduate
students. He also taught media law and First Amendment law to law students at the
university’s law school. The witness worked as a consultant for news organizations,
journalists, and professional journalism associations, helping them learn how to use
public records laws. He further wrote for newspapers, magazines, and news websites,
and gave presentations on media law and First Amendment issues. The witness had
specifically studied Georgia’s Open Records Act.
From this evidence, we find no abuse of discretion in the trial court’s
determination that the witness was qualified to testify as an expert in journalism and
First Amendment law. See generally Williams v. State, 279 Ga. 731, 732 (2) (620
SE2d 816) (2005); Attaway v. State, 279 Ga. App. 781, 782 (1) (632 SE2d 397)
(2006). Although Garland takes issue with the witness’s focus on the general
17
principles of open records laws, as opposed to Georgia’s Open Records Act
specifically, “[a]ny perceived weaknesses in his qualifications . . . were matters of
weight and credibility for the jury in evaluating his testimony.” Lopez v. State, 350
Ga. App. 662, 664 (1) (829 SE2d 862) (2019).
(b) Garland further argues that the witness’s testimony was both irrelevant and
prejudicial. He specifically challenges the following statements, which the expert
gave in response to the State’s question about what he was hired to teach the
news/professional organizations and journalists who hired him as a consultant:
“[J]ournalists . . . rely on all kinds of sources of information . . . [and] will make
public records requests to try to learn from documents how government is behaving.
The public records are essential to journalism–” The expert did not finish his sentence
because Garland’s counsel objected, and the trial court sustained the objection.8
Garland contends that “how journalists use [the Act], or its importance, is not
relevant to whether [she] violated [the law],” and that any such testimony was overly
prejudicial to her defense.
8
Throughout this trial, objections were made and arguments heard during
unrecorded bench conferences with the trial judge. We would like to take this
opportunity to remind the bench and bar that we are unable to review bench
conferences that are not transcribed by the court reporter and made part of the
appellate record.
18
Georgia law provides generally that, “[a]ll relevant evidence shall be
admissible” at trial, unless limited by law or other rules. OCGA § 24-4-402.
Nevertheless, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice[.]” OCGA § 42-4-403. The
exclusion of relevant evidence under this balancing test, “is a matter committed
principally to the discretion of the trial courts, but . . . is an extraordinary remedy that
should be used only sparingly.” (Citation and punctuation omitted.) King v. State, 338
Ga. App. 783, 786 (792 SE2d 414) (2016).
The trial court determined that the criminal charges against Garland related to
the trade of journalism, and that the standards and methods generally acceptable to
that trade were not known to the average person. The court concluded that the
expert’s testimony “would be helpful to this jury in understanding the issues that
[were] before it.”
The trial court did not abuse its discretion by allowing the expert testimony.
See OCGA §§ 24-4-402; 24-7-707. The challenged statements explaining how
journalists used open records laws were relevant to the issue for which the trial court
allowed the testimony; namely, to assist the jurors by providing context as to the
19
standards and methods used in the trade of journalism. See generally Parks v. State,
304 Ga. 313, 320 (2) (818 SE2d 502) (2018).
We reject Garland’s assertion that any alleged prejudice caused by the
statements outweighed their probative value. See OCGA § 24-4-403. Contrary to
Garland’s position, the expert did not testify as to the importance of the Act.
Although it does appear that he began to comment on the importance of public
records generally to journalism, he did not finish his statement because the trial court
sustained Garland’s objection following an unrecorded bench conference. The record
does not reflect that Garland requested any further remedial action be taken by the
trial court. See generally Ponder v. State, 297 Ga. 653, 654 (2) (777 SE2d 249)
(2015) (recognizing that in the absence of a request, the trial court does not err by
failing to take additional action after sustaining an objection).
3. Garland asserts that the trial court erred by denying her motion for mistrial
based upon a statement made by the prosecutor during closing argument. Garland,
however, did not object to the statement at the time it was made; rather, she waited
until the end of closing argument to object, and until the end of the trial court’s final
instructions to the jury before moving for a mistrial. “[I]t is plain that a defendant
must timely object to the alleged impropriety in closing argument so that the trial
20
court can take remedial action, if any is warranted.” Butler v. State, 273 Ga. 380, 384
(8) (541 SE2d 653) (2001). It follows that this issue was not preserved for appeal. See
Cowart v. State, 294 Ga. 333, 337 (3) (751 SE2d 399) (2013).
4. Garland contends that the trial court committed reversible error by denying
her requests to instruct the jury (a) as to the definition of “knowingly and willfully;”
and (b) that good faith is a element of the crimes charged, and the State must disprove
good faith beyond a reasonable doubt.
“A request to charge must be legal, apt, and precisely adjusted to some
principle involved in the case and be authorized by the evidence.” (Citation and
punctuation omitted.) Hudson v. State, 308 Ga. 443, 445 (2) (841 SE2d 696) (2020).
“It is error to refuse to give a charge only where the request is a correct statement of
law that is pertinent and material to an issue in the case and not substantially covered
by the charge actually given.” (Citation and punctuation omitted.) Taylor v. State, 272
Ga. 744, 745 (1) (534 SE2d 67) (2000).
With respect to the crimes for which Garland was accused, the trial court
instructed the jury, in pertinent part, as follows:
[A] person commits the offense of violation of the Open Records
Act when she knowingly and willfully violates the provisions of Article
21
4 and Chapter 18, Title 50 of the Official Code of Georgia Annotated,
commonly referred to as the Open Records Act, by knowingly and
willingly attempting to frustrate the access to records not subject to
exemption from the Act by intentionally making records difficult to
obtain for review.
A person commits criminal attempt to commit a violation of the
Open Records Act when, with intent to commit violation of the Open
Records Act, that person performs any act that constitutes a substantial
step toward the commission of the crime of violation of the Open
Records act. It shall be a defense to any criminal action under the Open
Records Act that a person has acted in good faith or in his or her . . .
action.
(a) Garland requested that the trial court give a jury instruction defining the
term “knowingly and willingly.” The trial court denied her request.
The trial court’s charge on the crime of violation of the Act tracked the
language of the statute. See OCGA § 50-18-74 (a); see also OCGA § 16-4-1. The trial
court did not err by refusing to further define the terms “knowingly and willingly”
because “[t]hese words are not in any sense technical or words of art, the meaning of
which would not be understood by people of ordinary experience and understanding.”
(Citation and punctuation omitted.) Philpot v. State, 268 Ga. 168, 171 (3) (486 SE2d
158) (1997) (holding “knowingly” is an “ordinary term[ ] found in common usage and
22
understood by people of common and ordinary experience”); Carroll v. State, 157 Ga.
App. 113, 114 (1) (276 SE2d 267) (1981) (holding that “‘[w]ilfully’ is certainly a
term in common usage” and the trial court did not err by refusing to define it).
(b) Likewise, the trial court did not err by denying Garland’s request to instruct
the jury that good faith is an element of the crimes charged, and that the State must
disprove good faith beyond a reasonable doubt.
As before, the trial court tracked the language of the statute when instructing
that good faith was a defense to any criminal action under the Act’s provisions. See
OCGA §50-18-74 (a). Further, the trial court charged the jury that the defendant is
presumed innocent, that intent is an essential element of any crime and must be
proved by the State beyond a reasonable doubt, that a defendant will not be presumed
to have acted with criminal intent, and that intent could be shown in certain, specified
ways. Thus, the trial court’s charge as given substantially covered the principle of law
embodied in Garland’s requested charge, and the trial court did not err by refusing to
give it. See Lewis v. State, 245 Ga. App. 234, 236 (3) (b) (537 SE2d 111) (2000)
(“[I]f the jury is properly instructed on criminal intent, the trial court does not err in
failing to charge the jury on ‘good faith.’”); see also Copeland v. State, 263 Ga. App.
776, 780 (2) (589 SE2d 319) (2003).
23
5. Finally, Garland contends that the trial court erred by denying her first
offender status pursuant to Georgia’s First Offender Act, OCGA § 42-8-60 et seq. We
disagree.
The First Offender Act provides that
When a defendant has not been previously convicted of a felony, the
court may, upon a guilty verdict or plea of guilty or nolo contendere and
before an adjudication of guilt, without entering a judgment of guilt and
with the consent of the defendant, defer further proceedings and: (1)
[p]lace the defendant on probation; or (2) [s]entence the defendant to a
term of confinement.
OCGA § 42-8-60 (a). “If the probation or incarceration term is completed without
violation, the defendant is discharged without an adjudication of guilt and is not
considered to have a criminal conviction.” (Citation and punctuation omitted.) Planas
v. State, 296 Ga. App. 51, 52 (1) (673 SE2d 566) (2009); see OCGA § 42-8-60 (e).
The determination of whether to offer a criminal defendant first offender treatment
rests solely with the trial court. See Higdon v. State, 311 Ga. App. 387, 389 (715
SE2d 741) (2011). This court will reverse that decision only “when the record clearly
establishes either that the trial court refused to consider first offender treatment on the
merits or erroneously believed that the law did not permit such an exercise of
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discretion.” (Citation and punctuation omitted.) Graydon v. State, 313 Ga. App. 580,
581 (722 SE2d 173) (2012).
In this case, Garland did not request first offender treatment at the time of
sentencing, but later filed a motion seeking retroactive application of the first
offender statute. Following a hearing, the trial court denied the motion. The trial court
explicitly recognized in its order that it had the duty to consider Garland’s motion.
The court continued:
The Court carefully considers the unique public nature of this case, the
facts and circumstances of which it retains specific and detailed
recollection, having presided throughout each day of the multi-day trial
as well as over pre-trial motions and post-trial sentencing proceedings.
Upon consideration of all facts and circumstances, the argument of
counsel, and applicable law, [Garland’s] motion is DENIED.
It is clear from the order that the trial court considered Garland’s motion on the
merits and exercised its discretion to deny it. Thus, there is no ground upon which
this Court may reverse. See Graydon, 313 Ga. App. at 581-582.
Judgment affirmed. McFadden, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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