Jackson v. the State ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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
November 10, 2015
In the Court of Appeals of Georgia
A15A0903. JACKSON v. THE STATE.
RAY, Judge.
After a jury trial, Marvin Jackson, Jr. was convicted of one count each of
aggravated stalking, family violence battery, and kidnapping, as well as two counts
of influencing a witness.1 Jackson appeals from his convictions and from the denial
of his motion for a new trial, arguing that the evidence was insufficient to sustain
several of his convictions and that the trial court erred in allowing the State to submit
1
Jackson was indicted for three counts of family violence battery, two counts
of aggravated stalking, two counts of false imprisonment, two counts of kidnapping
and two counts of influencing a witness. The trial court granted Jackson’s motion for
a directed verdict as to one count of aggravated stalking. The jury acquitted Jackson
of two counts of family violence battery, two counts of false imprisonment, and one
count of kidnapping.
for consideration certain evidence in aggravation of punishment. Finding no error, we
affirm.
Viewed in the light most favorable to the jury’s verdict,2 the evidence shows
that Nikeesha Jackson (hereinafter, the “victim”) was in a romantic relationship with
Jackson.3 In December 2012, the victim and her young son, J. C., moved into a home
in Clayton County near J. C.’s paternal grandmother.
In April 2013, Jackson was released from a federal facility in Kentucky where
he had been serving a sentence for drug-related charges. The victim drove to
Kentucky to pick him up and dropped him off at a halfway house in Atlanta. While
Jackson was at the halfway house, the victim provided Jackson with transportation
and a place to stay during weekend leave.
By May 2013, Jackson began exhibiting violent behavior towards the victim.
On one occasion, the victim called the police after Jackson beat her up, but she
testified that she lied to the responding officers to protect Jackson from being
arrested. The victim testified that, after that night, she avoided calling the police
because she was fighting to regain custody of her other children and did not want to
2
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
3
The victim was not married to Jackson. Her maiden name was also Jackson.
2
document any violence in her household. On September 21, 2013, the day after
Jackson was released from the halfway house, he came to live with the victim.
On September 22, 2013, Jackson and the victim attended a party in Henry
County. The victim brought along her friends, Shermett Britten and Shakonica
Crockett. Following an argument at the party, Jackson struck the victim. When
Britten confronted Jackson, Jackson shoved her. Fearing that a fight was about to
break out, the victim got in her car and drove way. Jackson then got into his car and
followed the victim. Britten called 911, and she and Crockett headed towards the
victim’s house. When the victim arrived at her house, Jackson was already there.
Britten and Crockett arrived just after the victim.
Davieon Norfus, the victim’s 12-year-old neighbor, was walking up the street
with some friends when he heard the victim screaming at Jackson to get out of her
house. Through the window, Norfus saw Jackson hit the victim. Norfus and his friend
went up to the open front door of the house and the friend told Jackson, “you’re not
supposed to hit a woman.” Jackson told the boys to leave, but the victim asked them
to stay and help her. The police then arrived and arrested Jackson. The victim and
Britten then went to the store to purchase new locks for the house and replaced them
that night.
3
On September 24, 2013, Jackson bonded out of jail and returned to the victim’s
house despite the terms of his pretrial bond that prohibited him from contacting her.
When Jackson arrived at the house, the victim let him inside. The couple began
arguing, and Jackson began to attack the victim by punching her, biting her, and
pulling on her hair. The victim ran to J. C.’s room, woke him up, and yelled at him
to go run to his grandmother’s house for help. J. C., who was six years old at the time
of trial, testified that he managed to run downstairs and outside the house when
Jackson stopped him, picked him up, and brought him back inside the house. J. C.
saw Jackson hit his mother in the face and testified that his mother’s mouth was
bleeding.
The next morning, the victim did not send J. C. to school because she was
afraid he would tell a teacher what had happened the previous night. Britten called
the victim to check on her, and the victim informed her that Jackson was back in the
house. Britten then sent the victim a text message asking whether she should call the
police, and the victim responded “yes.” Britten called 911 and asked for an officer to
check on the victim. When the responding officers arrived and knocked on the front
door, Jackson ordered the victim and J. C. to take the stairs on the back side of the
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house to the garage and to hide in the car. The three sat inside the car for about an
hour. After receiving no response, the officer left.
The next day, the victim sent J. C. to school and drove Jackson to report to his
parole officer. Jackson showed up at the victim’s house later to collect clothes the
victim had purchased for him, and he called the police when he learned that she had
returned them to the store. The victim then took out a warrant against Jackson, and
he was arrested.
Jackson placed a collect call to his sister from jail, who then put the call
through to victim. In that phone call, Jackson demanded that the victim drop the
charges and stated that she could just “plead the Fifth” if the authorities pressured her.
1. Jackson first argues that the evidence was insufficient to support his
convictions for aggravated stalking, kidnapping, and two counts of influencing a
witness.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, and the [defendant] is no longer entitled to the presumption
of innocence.” (Citation omitted.) Newsome v. State, 324 Ga. App. 665, 665 (751
SE2d 474) (2013). In determining the sufficiency of the evidence, we neither weigh
the evidence nor assess the credibility of the witnesses, but determine only whether
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the evidence authorized the jury to find the appellant guilty of the crime charged
beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24, 24 (752 SE2d 84) (2013).
(a) Aggravated Stalking. The indictment charged Jackson with aggravated
stalking for his act of contacting the victim “at her home in violation of a condition
of pretrial release and without her consent for the purpose of harassing and
intimidating her.” Jackson does not challenge a finding that he arrived at the victim’s
house with the intent of threatening or harassing the victim, but rather, he contends
that the evidence does not support a finding that he contacted the victim without her
consent.
Under OCGA § 16-5-91 (a), “[a] person commits the offense of aggravated
stalking when such person, in violation of a . . . condition of pretrial release . . . in
effect prohibiting the behavior in this subsection, follows, places, under surveillance,
or contacts another person at or about a place or places without the consent of the
other person for the purpose of harassing and intimidating the other person.”
(Emphasis supplied.) “Thus, it is an element of the offense that the contact be without
the victim’s consent.” Bragg v. State, 285 Ga. App. 408, 410 (1) (646 SE2d 508)
(2007).
6
Here, Jackson had been arrested for hitting the victim and failing to leave her
home when asked. After he bonded out of jail, Jackson went to her house in violation
of the terms of his conditions of pretrial release. The victim allowed him to come
inside, and she provided no testimony that she ever asked him to leave the house.
However, there was also no evidence that the victim invited Jackson to her home or
consented to his presence prior to his arrival at her door. The jury could infer that the
victim did not consent to Jackson coming back to her house by the fact that she had
him arrested the evening prior and immediately changed the locks once he was out
of the house.4 The jury could also infer by his conduct both before and after he
returned to the house that Jackson came to the victim’s house for the purpose of
threatening or harassing her. See Crapps v. State, 329 Ga. App. 820 (766 SE2d 178)
(2014) (“To prove that an act was done for the purpose of harassing and intimidating
the victim, . . . the State must show that the act was part of a pattern of harassing and
intimidating behavior”) (citation and punctuation omitted).
Although the State at trial argued that the consent element of aggravated
stalking was met when the victim impliedly revoked her consent after the abuse
4
The victim testified that she was not aware that Jackson had even been
released from jail until he showed up at her home.
7
began, we find that the crime of aggravated stalking was completed when Jackson
arrived at the door of the victim’s house, in violation of the conditions of his pretrial
release, without her having invited him to do so. Compare Bragg, supra (insufficient
evidence to support aggravated stalking conviction when victim initiated contact with
defendant to suggest that they meet, brought a friend along with her to the meeting,
and never withdrew consent). See also, Littleton v. State, 225 Ga. App. 900, 902-903
(4) (485 SE2d 230) (1997) (sufficient evidence supported aggravated stalking
conviction even though victim had previously allowed the defendant into her home
after entry of protective order).
(b) Kidnapping. Jackson next argues that the evidence was insufficient to
support his conviction for kidnapping the child because the State failed to carry its
burden of proving that Jackson forcibly “impose[d] his will over [J. C.] to move or
hold him in the garage.” We disagree.
The indictment charged Jackson with kidnapping for his act of “abduct[ing] [J.
C.] without lawful authority . . . and [holding] him against his will when the accused
forced him into the garage for the purpose of (1) concealing or isolating him, (2) to
lessen the risk of detection, and (3) to avoid apprehension[.]”
8
OCGA § 16-5-40 (a) provides that “[a] person commits the offense of
kidnapping when such person abducts or steals away another person without lawful
authority or warrant and holds such other person against his or her will.” And “[f]or
the offense of kidnapping to occur, slight movement shall be sufficient[.]” OCGA §
16-5-40 (b).
Here, the victim testified that the morning after Jackson had beaten her, she
asked Britten, via text message, to call 911 for her. The victim stated that she and J.
C. were not free to leave the house once Jackson arrived because “it was understood”
that Jackson required them to stay in the house. She further testified that she, J. C.,
and Jackson were upstairs in the house when they heard the police arrive, and that
Jackson “told [them] to go” downstairs to the garage and to sit in the parked car. The
victim stated that she complied because she was “very afraid” during this time and
that she felt like she had to “do whatever he say[s]. Don’t ask no questions.” She
stated that Jackson informed her that she would “be done with” if he got “locked up”
over the incident. J. C. confirmed his mother’s testimony, explaining that once the
police arrived, Jackson told him and his mother to sit in the car in the garage.
Although Jackson did not physically force J. C. down the stairs and into the
garage, such physical force is not a necessary element of kidnapping. See, e. g.,
9
Fredrick v. State, 181 Ga. App. 600, 602 (1) (353 SE2d 41) (1987) (“whether the
abduction or taking of the person was forcible or by enticement is immaterial, so long
as the victim is unlawfully held ‘against his will’”). Here, there was evidence
supporting a finding that neither J. C. nor the victim went to the garage of their own
free will, but rather were forced to do so by use of Jackson’s intimidation, threats and
prior physical violence against the victim. Further, “testimony by the victim of a
kidnapping concerning whether consent was given or withheld is not essential since
other evidence can be utilized to establish the victim was abducted and held against
[his] will.” (Citation and punctuation omitted.) Parson v. State, 245 Ga. App. 902,
904 (539 SE2d 234) (2000). Some evidence was presented that Jackson made J. C.
move down the stairs into the garage against his will. J. C. had witnessed Jackson hit
his mother so hard the day before that she bled from her mouth, his mother testified
that she was afraid of Jackson, J. C. had been ordered by Jackson to go to the garage,
and Jackson had threatened J. C.’s mother if he was arrested. Accordingly, we
conclude that a rational trier of fact was authorized under the standard of Jackson,
supra, to conclude beyond a reasonable doubt that Jackson kidnapped J. C. against
his will.
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(c) Influencing a witness. Although Jackson purports to challenge the
sufficiency of the evidence supporting his convictions for influencing a witness, he
limits his argument on appeal to the sufficient of the indictment. Specifically, he
argues that the indictment was defective because it failed to place him on notice of
the way in which he intimidated the victim and failed to allege facts that would
constitute the crime.. However, Jackson did not file a general or a special demurrer
challenging these counts of his indictment before the trial court. See Coleman v.
State, 318 Ga. App. 478, 479 (1) (735 SE2d 788) (2012).
Although a defendant has “a right to be tried upon an indictment which is
perfect in form and substance . . . this right can, under certain circumstances, be
waived if a defendant fails to timely challenge the indictment.” (Citations omitted.)
McKay v. State, 234 Ga. App. 556, 558 (2) (507 SE2d 484) (1998). To challenge the
sufficiency of an indictment, an accused can file a special or a general demurrer. “A
general demurrer challenges the very validity of the indictment and may be raised
anytime; the special objects merely to its form or seeks more information and must
be raised before pleading to the indictment.” (Citations and punctuation omitted.) Id.A defendant waives a special demurrer if he does not raise it before pleading to the
merits of the indictment. Id. at 59 (2). However, “[b]ecause a general demurrer attacks
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the legality of an indictment, it may be raised any time during the trial and may even
be raised after the verdict by a motion in arrest of judgment[.]” (Footnote omitted.)
Coleman, supra.
The record is clear in this case that Jackson filed neither a special nor a general
demurrer. This Court has previously held that “a [m]otion for new trial is not the
proper method to attack the sufficiency of an indictment and does not provide a basis
for this Court to review the indictment.” (Citations omitted.) See McKay, supra at
559-560 (2). Because Jackson did not raise an objection to the indictment in any
manner before or during trial and did not move to arrest the judgment after his
conviction, it can be reviewed on appeal only through a habeas corpus proceeding.
Id. See also Zabain v. State, 315 Ga. App. 749, 753-754 (3) (728 SE2d 273) (2012).
Accordingly, his claim is not properly before us.
2. Jackson next argues that the trial court erred when it allowed the State to
present evidence in aggravation of punishment at the sentencing hearing without
providing proper notice under OCGA § 17-16-4 (a) (5). We find no error.
Following Jackson’s conviction, the trial court conducted a sentencing hearing.
In aggravation of punishment, the State offered a certified copy of Jackson’s prior
federal drug conviction and sought the maximum sentence under the recidivist statute,
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OCGA § 17-10-7. Jackson’s counsel objected to the introduction of this evidence,
arguing that he had not been timely notified of the State’s intent to seek recidivist
punishment. The State informed the trial court that a timely notice had been served
on Jackson’s counsel and filed in the record before the trial began, but Jackson’s
counsel denied having received it. After hearing from both parties, the trial court
found that Jackson had been provided with prior notice of the intent to introduce
evidence in aggravation of punishment prior to trial. The trial court then admitted the
certified copy of Jackson’s prior conviction, but did not sentence him as a recidivist
under OCGA § 17-10-7 (a).
OCGA § 17-16-4 (a) (5) provides that “[t]he prosecuting attorney shall, no later
than ten days prior to trial, or at such time as the court orders but in no event later
than the beginning of the trial, provide the defendant with notice of any evidence in
aggravation of punishment that the state intends to introduce at sentencing.” Jackson
contends that “[t]here is nothing in the record which would indicate that the State
noticed the defendant of its intention to use prior convictions to enhance the
punishment before the written notice at trial.” However, this assertion is unfounded.
The record contains a filed-stamped document indicating that the State filed into the
record a copy of Jackson’s prior convictions, its intent to use them in aggravation of
13
sentencing, and that it mailed the same to Jackson’s counsel more than 10 days before
trial. Further, the State informed the trial court that it hand-delivered the document
to Jackson’s counsel as well. We find no error in the trial court’s decision to admit
the certified copy of Jackson’s prior convictions. See Thomas v. State, 324 Ga. App.
898, 900 (752 SE2d 67) (2013) (trial court did not abuse its discretion in finding that
the State provided defense counsel with adequate notice of its intent to introduce
prior convictions in aggravation of punishment when “substantial evidence” was
presented from which the trial court could conclude that defense counsel received
notice of such intent).
Judgment affirmed. Barnes, P. J., and McMillian, J., concur.
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