The State v. Davis , 339 Ga. App. 214 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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
October 28, 2016
In the Court of Appeals of Georgia
A16A1006. THE STATE v. DAVIS
PETERSON, Judge.
The State appeals an order granting Avery Chad Davis’s motion to dismiss two
counts of aggravated stalking brought against him. The State argues that the trial
court erred in concluding that a provision of Davis’s divorce decree did not constitute
the sort of protective order that, when violated, can support a charge of aggravated
stalking under OCGA § 16-5-91. We reverse because the provision that Davis is
accused of violating constitutes a permanent injunction, which the plain language of
the statute includes within its scope.
The record shows that on May 3, 2013, Davis’s then-wife sought a temporary
protective order against Davis, alleging that he had approached her vehicle and tried
to break out the window with his fist. Their two minor children were inside the
vehicle. A Superior Court judge granted an ex parte protective order. At the time, a
divorce suit between Davis and his then-wife was pending. After a hearing, a Final
Judgment and Decree of Divorce (“Divorce Order”) was entered on March 3, 2014,
dismissing the temporary protective order against Davis and stating that both parties
were thereafter to have “non-threatening, non-harassing communication only as it
relates to their minor children’s well being.”1 The court further specified in that
section of the Divorce Order that Davis could not come within 150 yards of his ex-
wife or their oldest child except for parental visitation or certain events such as school
functions; his presence at such events involving a younger child, however, was not
likewise restricted as long as he did not initiate contact with his ex-wife or the older
child.
On March 18, 2015, Davis was indicted on two counts of aggravated stalking
under OCGA § 16-5-91 and one count of possession of a controlled substance under
OCGA § 16-13-30(a). The aggravated stalking counts alleged that Davis had violated
the Divorce Order by contacting his ex-wife and their older son at a restaurant “for
1
At the hearing, which took place several months before the Divorce Order
was entered, Davis’s counsel said that the parties had reached a “consent agreement.”
The signature page on the Divorce Order indicates that Davis’s counsel prepared the
order.
2
the purpose of harassing and intimidating” them. Davis filed a motion to dismiss the
two counts of aggravated stalking, asserting that a violation of a divorce decree is not
sufficient to support a charge of aggravated stalking under OCGA § 16-5-91(a).
Following a hearing, the trial court granted the motion in a written order, finding that
because the violation of a divorce order is not listed in OCGA § 16-5-91(a) as
constituting such support, the State could not premise an aggravated stalking charge
on a violation of Davis’s Divorce Order. This appeal followed.
We review a trial court’s ruling on a general demurrer de novo “in order to
determine whether the allegations in the indictment are legally sufficient.” Sallee v.
State, 329 Ga. App. 612, 616 (2) (765 SE2d 758) (2014) (citations omitted).2 On
appeal, the State argues that the relevant provision of the Divorce Order constitutes
a protective order as that term is used in OCGA § 16-5-91, and thus the aggravated
stalking charge was proper. We agree that a violation of this provision of the Divorce
Order could form the basis of an aggravating stalking charge under OCGA § 16-5-91.
2
As Davis’s motion essentially argued that the allegations in the indictment,
even if true, would not support a conviction for aggravated stalking, the motion was
equivalent to a general demurrer. See Ingram v. State, 240 Ga. App. 172, 172 (1) (523
SE2d 31) (1999).
3
OCGA § 16-5-91(a) defines the crime of aggravated stalking as when a person
“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”
in violation of a bond to keep the peace posted pursuant to Code Section
17-6-110, temporary restraining order, temporary protective order,
permanent restraining order, permanent protective order, preliminary
injunction, good behavior bond, or permanent injunction or condition of
pretrial release, condition of probation, or condition of parole in effect
prohibiting the behavior described in this subsection[.]
The sole question for our consideration is whether a violation of the language in the
Divorce Order limiting Davis’s contact with his ex-wife and their older child could
constitute aggravated stalking within the meaning of OCGA § 16-5-91(a). This
appears to be a question of first impression.
When we consider the meaning of a statute, we must presume that the
General Assembly meant what it said and said what it meant. To that
end, we afford the statutory text its plain and ordinary meaning, we must
view the statutory text in the context in which it appears, and we must
read the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.
4
Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013) (citations and
punctuation omitted). “It is well settled that where the language of a statute is plain
and unambiguous, judicial construction is not only unnecessary but forbidden.”
Norred v. Teaver, 320 Ga. App. 508, 512 (1) (740 SE2d 251) (2013) (citation and
punctuation omitted).
In concluding that a violation of the Divorce Order could not be the basis for
an aggravated stalking prosecution under OCGA § 16-5-91, the trial court relied at
least in part on the Legislature’s failure to include “divorce” orders in the list of
orders found in OCGA § 16-5-91(a). But the proper inquiry is not whether the title
of the order matches the statutory list; instead, the question is whether the relevant
provision of the Divorce Order falls within the scope of any of the types of orders
listed in the statute. That pertinent language provided:
The parties shall only have non-threatening, non-harassing
communication only as it relates to their minor children’s well-being.
Except for the purpose of pick up and drop off, attend[ing] church
events, school events, and medical appointments, [Davis] shall not be
within 150 yards of [his ex-wife or their older son], [his ex-wife]’s
residence, place of employment and/or school.
However, nothing herein shall restrict [Davis]’s ability to attend the
extra-curricular activities, church events, social events and school events
5
of [the younger son]. Specifically, even if [Davis’s ex-wife and their
older son] are at these events, [Davis] shall be allowed to attend.
However, [Davis] shall not initiate contact with [his ex-wife or their
older son] unless they initiate contact first.
The trial court apparently considered, and rejected, the possibility that this language
could constitute any sort of “protective order.” The trial court concluded that this
language could not constitute a protective order because it allowed Davis to make
some limited contact with his ex-wife and their minor children. The court also noted
that procedures for extending the temporary protective order that was issued ex parte
were not followed. Indeed, it appears that those procedures were not followed, see
OCGA § 19-13-3(c), although we note that Davis consented to the Divorce Order,
which apparently was drafted by his counsel. Regardless of whether the pertinent
language in the Divorce Order language could constitute a “permanent protective
order” given Davis’s apparent waiver of certain formalities, however, we conclude
that the language clearly constitutes a “permanent injunction” within the meaning of
OCGA § 16-5-91.
The Georgia stalking statute, OCGA § 16-5-90 et al., does not define
“injunction” or “permanent injunction.” But injunctions are defined generally as court
orders that prohibit someone from doing a specific act or future wrong. See Catrett
6
v. Landmark Dodge, Inc., 253 Ga. App. 639, 644 (3) (560 SE2d 101) (2002); Black’s
Law Dictionary 784 (6th ed. 1990). The pertinent language in the Divorce Order
prohibits Davis from future acts of specific contact against named persons, thereby
constituting an injunction within the plain meaning of the term. Such specificity also
meets our state’s statutory requirements for injunctions, which provide that an
injunction “shall be specific in terms [and] shall describe in reasonable detail, and not
by reference to the complaint or other document, the act or acts sought to be
restrained[.]” OCGA § 9-11-65(d); see also Bearden v. Ga. Power Co., 262 Ga. App.
550, 553 (3) (586 SE2d 10) (2003) (in accordance with statutory requirements,
injunction against property owners reasonably detailed the acts they may not interfere
with). Compare Hendrix v. Hendrix, 254 Ga. 662, 662 (333 SE2d 596) (1985)
(injunction that referred to the complaint for its sole description of the land that
defendant was restrained from encumbering or conveying was an impermissible
incorporation by reference). To refuse to treat the pertinent language in the Divorce
Order as an injunction because it is not specifically labeled as such would
impermissibly elevate form over substance. See Abel & Sons Concrete, LLC v.
Juhnke, 295 Ga. 150, 151-52 (757 SE2d 869) (2014) (portions of summary judgment
order that, in substance, comprised an interlocutory injunction must comply with
7
statutory notice requirements for such injunctions); Am. Mgmt. Servs. E., Inc. v. Fort
Benning Family Cmtys, LLC, 318 Ga. App. 827, 829 (1) n.2 (734 SE2d 833) (2012)
(although trial court referred to order as temporary restraining order, “looking at
substance over nomenclature,” it was an interlocutory injunction because it was not
limited to 30 days).3
In conclusion, we find that the provision in the Divorce Order that Davis is
accused of violating constituted a permanent injunction within the meaning of OCGA
3
The State relies on Keaton v. State, 311 Ga. App. 14 (714 SE2d 693) (2011)
(physical precedent only), for the proposition that the Divorce Order can constitute
a basis for an aggravated stalking charge because the order contains “injunctive
language” and “explicitly prevents stalking behavior.” In Keaton, this court ruled 6-1
that an order that did not explicitly enjoin the defendant from having contact with his
estranged wife but merely prohibited him from going to the marital residence except
to retrieve or return the children for visitation could not be the basis for an aggravated
stalking conviction. Keaton, 311 Ga. App. at 14-18 (1). The court further divided
over whether the phrase “in effect prohibiting the behavior described in this
subsection” as used in OCGA § 16-5-91(a) modifies only the terms “condition of
pretrial release, condition of probation, or condition of parole[,]” or also the orders
delineated in that subsection. Although the State relies on the reasoning of the
opinion that disposed of the appeal, that opinion – concluding that the “in effect
prohibiting” phrase modified all of the orders listed in the subsection – did not
receive a majority of the votes of the Court as to the division addressing the
defendant’s sufficiency challenge (although six judges concurred in the judgment),
so it is physical precedent only. See Keaton, 311 Ga. App. at 15-16 (1) (a); Court of
Appeals Rule 33(a). This case does not require us to resolve the statutory
interpretation question left open by that split decision. Keaton does not apply here
because that case involved an order that prevented the defendant from entering a
certain place, not one that prohibited contacting a certain person.
8
§16-5-91(a).4 The trial court thus erred in dismissing the charge of aggravated
stalking.
Judgment reversed. Phipps, P. J., and Dillard, J., concur.
4
Davis argues that we cannot rely on his ex-wife’s testimony that she thought
the pertinent provision in the Divorce Order would be treated as a protective order.
We do not rely on any such evidence of his ex-wife’s subjective understanding of the
import of the Divorce Order.
9