Dowda v. the State , 341 Ga. App. 295 ( 2017 )

SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J., and REESE, 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
April 21, 2017
In the Court of Appeals of Georgia
A17A0531. DOWDA v. THE STATE
MILLER, Presiding Judge.
Following a jury trial, Cody W. Dowda was convicted of criminal trespass.
(OCGA § 16-7-21 (b) (1)).1 Dowda appeals from the denial of his motion for new
trial, contending that (1) the evidence was insufficient to support his conviction; (2)
the trial court erred in admitting hearsay and character evidence; and (3) the trial
court erred in failing to allow defense counsel to read and respond to a jury note
which evidenced juror confusion. As set forth herein, the evidence was sufficient to
sustain Dowda’s conviction for trespass and the admission of any hearsay was
harmless; however, the trial court was required to give defense counsel an
1
The jury acquitted Dowda of an additional misdemeanor charge of attempted
theft by taking firewood (OCGA §§ 16-4-1 and 16-8-2).
opportunity to review the jury note and to suggest an appropriate response. Because
the trial court failed to do so, we reverse Dowda’s trespass conviction. We note,
however, that the State is entitled to retry Dowda because the evidence supported his
conviction.
Viewed in the light most favorable to Dowda’s conviction,2 the evidence
showed that the victim lived with her daughter and granddaughter in Douglas County.
On September 23, 2014, the victim’s granddaughter saw a white pick-up truck back
up onto the victim’s property and stop about “two steps” from a woodpile the victim
kept on her property about 25 yards from the roadway. The granddaughter saw
Dowda, who was wearing a bright orange shirt, standing by the right side of the
truck’s tailgate, “pretty close” to the wood pile.
The granddaughter then phoned her mother and said that there were two people
in a truck backed up to the victim’s firewood pile. The victim and her daughter came
running out of the house and saw the white pick-up on her property with the tailgate
up against her woodpile. The truck did not appear to be stuck.
The victim and her daughter saw the truck pull out, drive up the street, turn
onto another road, and stop. Two “boys” were inside the truck at that time, and one
2
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
of them had dark hair and was wearing a bright orange shirt. Shortly thereafter, the
boys abandoned the truck on a nearby street.
The victim called 911 and when the investigating officer arrived she went over
to where the truck was parked. The investigating officer determined that the truck
belonged to Dowda’s father, who lived nearby. The officer then went to Dowda’s
home and told Dowda’s father that the truck had been impounded. The father called
Dowda, and the officer spoke with Dowda on the phone and asked him to return
home.
Dowda arrived at his home on foot about five to ten minutes later wearing a
bright orange shirt, and he told the officer that the truck had broken down. The officer
testified that there were tire tracks in the victim’s grass going from the street curb up
to five feet from the woodpile, and that the tire tracks were inconsistent with a
broken-down vehicle.
Dowda was accused of criminal trespass and criminal attempt to commit a
misdemeanor (theft by taking). Following a jury trial, he was convicted of the
criminal trespass count, but acquitted of the criminal attempt count. Dowda now
appeals.
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1. On appeal, Dowda contends that the evidence was insufficient to support his
conviction for criminal trespass. We disagree.
A person commits the offense of criminal trespass when he “knowingly and
without authority. . . [e]nters upon the land or premises of another person . . . for an
unlawful purpose[.]” OCGA § 16-7-21 (b) (1).
Here, the victim’s granddaughter saw Dowda back the truck onto the victim’s
property and stop it next to the woodpile, and Dowda fled in the truck and abandoned
it on a nearby street right after he was spotted by the victim and her daughter.
Moreover, Dowda’s explanation that the truck had broken down was inconsistent
with the tire tracks on the victim’s property, as well as the witnesses’ testimony that
the truck did not appear to be stuck. This evidence authorized the jury to find that
Dowda knowingly and without authority backed the white pickup truck onto the
victim’s property for the unlawful purpose of taking the victim’s firewood.3
3
We note that the jury was entitled to conclude that Dowda committed the
offense of trespass, even though it acquitted him of the charge of attempted theft,
because Georgia has abolished the inconsistent verdict rule. See Jamale v. State, 302
Ga. App. 140, 143 (2) (a) (690 SE2d 420) (2010) (jury could have concluded that
defendant committed robbery by intimidation even while it acquitted him of theft);
Matthiessen v. State, 277 Ga. App. 54, 56-57 (4) (625 SE2d 422) (2005) (defendant’s
acquittal on theft by deception charge did not require reversal of his conviction for
theft by taking).
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Consequently, the evidence was sufficient to support Dowda’s conviction for criminal
trespass. See Harris v. State, 222 Ga. App. 56, 57 (1) (473 SE2d 229) (1996)
(evidence that defendant was found walking up the stairs of a burglarized fraternity
house at 3:00 a.m. was sufficient to support a finding of unlawful purpose in support
of his conviction for criminal trespass); Smith v. State, 226 Ga. App. 150, 151 (1)
(485 SE2d 538) (1997) (evidence that a man matching defendant’s description had
chiseling tools and left a building shortly after the building’s door was chiseled open
was sufficient to support his criminal trespass conviction).
2. In two enumerations of error, Dowda also contends that the trial court
erroneously admitted hearsay evidence at his trial. Specifically Dowda argues that the
trial court erred in allowing (1) the victim to testify about her granddaughter’s phone
call, and (2) the officer to testify about Dowda’s father’s demeanor when the officer
told the father why he had to impound the truck. Because these alleged errors could
recur on retrial, we address them here. Nevertheless, we find no reversible error as to
these enumerations.
a. The Victim’s Testimony
Any error in admission of the victim’s testimony about the granddaughter’s
phone call was harmless because the victim’s testimony was cumulative of the
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testimony of both the daughter and the granddaughter about that same call. Moreover,
Dowda did not object to the daughter’s or the granddaughter’s testimony at trial, and
he does not challenge their testimony on appeal. Consequently, Dowda has not shown
reversible error in the admission of the victim’s testimony. Rutledge v. State, 298 Ga.
37, 40 (2) (779 SE2d 275) (2015) (any error in admitting out-of-court statement was
harmless because it was cumulative of other evidence admitted at trial).
b. The Officer’s Testimony
Dowda argues that the trial court erred in admitting the officer’s testimony
regarding the demeanor of Dowda’s parents on the ground that this testimony
constituted improper hearsay.4 We disagree.
Here, the investigating officer testified that he identified Dowda’s father as the
owner of the abandoned truck, and he went to Dowda’s home and met with Dowda’s
parents. The officer then testified that, when he told the parents that the truck had to
be towed, they “were not shocked. They made it sound like this was something very
plausible that their son could have been involved in. They were upset that the truck
4
Dowda also argues that the officer’s testimony constituted improper character
evidence. At trial, however, Dowda raised only a hearsay objection to that testimony.
Consequently, Dowda has waived this argument on appeal. Geiger v. State, 295 Ga.
648, 653 (4) (b) (763 SE2d 453) (2014).
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had to be towed.” Even if the trial court erroneously admitted the officer’s testimony
about the parents’s demeanor, it is highly probable that it did not contribute to the
jury’s verdict in light of the eyewitness testimony and other cumulative evidence
presented against Dowda in this case. See Glispie v. State, 300 Ga. 128, 132 (1) (793
SE2d 381) (2016).
3. Dowda also contends that the trial court erred in failing to allow defense
counsel to read and respond to a note the jury sent out during its deliberations that
clearly showed that the jury was confused and had not reached a unanimous verdict.
We agree, and consequently we reverse Dowda’s trespass conviction.
Here, the record shows that, after about three hours of deliberation, the trial
judge received a note from the jury, which stated: “Sir, we cannot reach a unanimous
decision[.]” The note indicated that the jury had voted “4 - not guilty based on
evidence [and] 2 - innocent on evidence.” The note did not indicate whether the jury
was split on both counts, just the trespass count, or just the attempted theft count, but
it clearly evidenced confusion as to the charges received by the jury. When the trial
court received the note from the jury, the trial court merely informed defense counsel
and the State that the note said that the jury could not reach a unanimous verdict. The
trial court did not show the note to defense counsel, advise defense counsel of its
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entire content, or afford defense counsel an opportunity to suggest an appropriate
response in light of the entire content of the note. Instead, the trial court brought the
jury back in and encouraged them to continue discussing the case.
Both the Supreme Court of Georgia and this Court have recognized that “the
failure of the trial court to inform counsel of the contents of [a jury note] and to seek
comment or input in the formulation of the court’s response [constitutes] a violation
of [a defendant’s] right to counsel.” Lowery v. State, 282 Ga. 68, 74-75 (4) (b) (ii)
(646 SE2d 67) (2007); see also Wells v. State, 297 Ga. App. 153, 161 (2) (676 SE2d
821) (2009); Andrews v. State, 293 Ga. App. 445, 446 (667 SE2d 212) (2008). In
light of this constitutional right, the Supreme Court requires trial courts
to have jurors’ communications submitted to the court in writing; to
mark the written communication as a court exhibit in the presence of
counsel; to afford counsel a full opportunity to suggest an appropriate
response; and to make counsel aware of the substance of the trial court’s
intended response in order that counsel may seek whatever
modifications counsel deems appropriate before the jury is exposed to
the instruction.
Lowery, supra, 282 Ga. App. at 76 (4) (b) (ii). Here, given the jury’s obvious
confusion, the trial court’s failure to provide counsel with an opportunity to review
the jury note and know its full contents and then discuss the trial court’s response to
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the note was not harmless error. Instead, the action of the trial court kept the
defendant’s counsel ignorant to the jury’s confusion and deprived defendant of his
right to counsel. See id. Unfortunately, as a consequence, we must reverse Dowda’s
trespass conviction. In so holding, we note that the State is entitled to retry Dowda
on the trespass charge because, as discussed in Division 1, the evidence was sufficient
to support his conviction for that offense. Wells, supra, 297 Ga. at 153-154.
Judgment reversed. Doyle, C. J., and Reese, J., concur.
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