Murden v. State

574 S.E.2d 657 (2002) 258 Ga. App. 585

MURDEN
v.
The STATE.

No. A02A2262.

Court of Appeals of Georgia.

November 25, 2002. Certiorari Denied February 24, 2003.

Zell & Zell, Rodney S. Zell, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Amira A. Arshad, Asst. Dist. Attys., for appellee.

MILLER, Judge.

Johnny Murden was convicted on two counts of aggravated stalking based on his contacting his ex-wife in violation of a probation condition. He appeals, arguing that the evidence was insufficient to sustain the convictions and that the court erred in admitting two civil protective orders that had earlier prohibited him from contacting his ex-wife. We hold that the evidence was sufficient and that the court did not abuse its discretion in admitting the prior protective orders, and we therefore affirm.

Following his divorce, Murden burglarized his ex-wife's residence with the intent to rape her and also repeatedly contacted and threatened her over several months, resulting in two civil protective orders restraining him from contacting her. In 1993 he pled guilty to the burglary and received a five-year probated sentence, in which a condition of probation was that he not contact his ex-wife during those five years.

In August 1994, Murden phoned and spoke to his ex-wife, came to her workplace asking for her, phoned her workplace numerous times asking for her, and came to her residence carrying a gun. In May 1997, he confronted her face to face at her workplace (bearing a knife in his pocket and telling her he wanted her "to go to heaven" with him), called her repeatedly that night, and was near the entrance of her workplace the next morning. Two separate indictments for aggravated stalking followed.

At trial the State tendered the two prior protective orders to show Murden's course of conduct and to explain his ex-wife's fear of him. The trial court admitted the orders over Murden's objection. Convicted on both charges, Murden unsuccessfully moved for a new trial. He now appeals.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

OCGA § 16-5-91(a) provides:

A person commits the offense of aggravated stalking when such person, in violation of a ... condition of probation ... in effect prohibiting the behavior described 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.

The terms "harassing and intimidating" mean a knowing and wilful course of conduct directed at a specific person, which causes emotional distress by placing such person in reasonable fear for such person's safety and which serves no legitimate purpose. OCGA § 16-5-90(a)(1); see Hooper v. State, 223 Ga.App. 515, 517(2), 478 S.E.2d 606 (1996). Prohibited contact may include phone contact. See Jones v. State, 239 Ga.App. 733, 734-735(2), 521 S.E.2d 883 (1999).

Here Murden caused his ex-wife great distress by repeatedly contacting her in violation of the probation condition. Following numerous instances of contacting and threatening her (resulting in two protective orders), Murden was sentenced to probation for his burglary of her residence and was prohibited from contacting her as a condition of probation. Nevertheless, in August 1994 and over her objection, he called her at her home, came to her workplace asking for her, called her workplace numerous times asking for her, and came to her residence carrying a gun. Beyond the direct phone contact, the other indirect contacts also qualify to establish a scheme of prohibited behavior. See Jagat v. State, 240 Ga.App. 822, 823(1), 525 S.E.2d 388 (1999); Wright v. State, 232 Ga. App. 646, 647(1), 502 S.E.2d 756 (1998). In May 1997, he confronted her face to face at her workplace (bearing a knife in his pocket and telling her he wanted her "to go to heaven" with him), called her repeatedly that night, and was near the entrance of her workplace the next morning. Viewed in the light most favorable to the verdict, this evidence was sufficient to sustain Murden's convictions on two counts of aggravated stalking. See Wright, supra, 232 Ga.App. at 647(1), 502 S.E.2d 756.

Murden argues that the State failed to show that he followed, placed under surveillance, and contacted the victim as alleged in the indictments. However, despite the fact that "the indictment was formed in the conjunctive, proof that [Murden] committed the crime by any of the methods charged would form a basis for upholding his conviction. [Cits.]" Bell v. State, 252 Ga.App. 74, 78(3), 555 S.E.2d 747 (2001); see Stone v. State, 229 Ga.App. 367, 370(1)(b), 494 S.E.2d 48 (1997).

2. Citing Johnson v. State, 231 Ga. App. 823, 824(2), 499 S.E.2d 145 (1998), Murden argues that the court erred in admitting the civil protective orders. He reasons that these civil judgments (subject to a lesser standard of proof) were improperly used to establish facts in this criminal action.

Murden misapprehends the purpose for which the orders were admitted. The findings of the orders themselves were not used to establish the facts of this criminal case. The court carefully instructed the jury to consider the existence of the protective orders only for the purpose of possibly establishing Murden's course of conduct. Such would help to show the reasonableness of the ex-wife fearing for her safety when approached by Murden, who had a history of threatening conduct that resulted in protective orders against him. Since the admissibility of evidence is a matter resting largely within the discretion of the trial court, Simms v. State, 223 Ga.App. 330, 333(2), 477 S.E.2d 628 (1996), we hold that the trial court did not abuse that discretion in admitting these two protective orders.

Judgment affirmed.

BLACKBURN, C.J., and JOHNSON, P.J., concur.