Chestnut v. State

331 Ga.App. 69

769 S.E.2d 779

CHESTNUT

v.The STATE.

No. A14A1626.

Court of Appeals of Georgia.

March 11, 2015.

McGee & McGee, James Baker McGee III, Waycross, for Appellant.

George E. Barnhill, Asst. Dist. Atty., Bradley Leonard Collins, Dist. Atty., Ian Louis Sansot, Asst. Dist. Atty., for Appellee.

Opinion

BRANCH, Judge.

Rufus Chestnut was tried by a Coffee County jury and convicted of violating OCGA § 42–1–12, which required Chestnut, as a registered sex offender, to provide the Coffee County sheriff's office with 72 hours advance notice of any change in his residential address, with such notice to include the new address to which Chestnut was moving. Chestnut now appeals, arguing that under the Georgia Supreme Court's decision in Santos v. State, 284 Ga. 514, 668 S.E.2d 676 (2008), the evidence is insufficient to sustain his conviction. For reasons explained more fully below, we agree with Chestnut and therefore reverse his conviction.

Although this case has a protracted procedural history, the relevant facts are undisputed and show that in November 2006, Chestnut was convicted of incest as a result of his relationship with an adult woman (S.C.), who was the legal daughter of Chestnut's brother Larry Chestnut (“Larry”).¹ See Chestnut v. State, 287 Ga.App. 693, 652 S.E.2d 596 (2007). Upon being convicted of incest, Chestnut received a sentence of 10 years, with four years to be served in incarceration and the balance to be served on probation. As a result of Chestnut's incest conviction, OCGA § 42–1–12(a)(10)(B)(xii) required him to register with the State as a sex offender prior to his release from prison and to register as a sex offender with his local law enforcement agency within 72 hours following his release. See OCGA § 42–1–12(10)(a)(xii)(defining incest as a “dangerous sexual offense” and subjecting any person convicted of that crime to the registration requirements found in OCGA § 42–1–12 ); OCGA § 42–1–12(f)(1), (f)(2).

Chestnut was released from prison on April 11, 2009. Two days later, on April 13, he went to the Coffee County sheriff's office to register as a sex offender. Chestnut's probation officer, Mike Taylor, refused to allow Chestnut to register at the first address he offered because that residence was within 1,000 feet of a day care center and therefore did not meet the requirements of OCGA § 42–1–15(a) (2006).² Recognizing that Chestnut “was homeless,” Taylor gave him an additional three days to find a different residence. On April 14, Chestnut returned to the sheriff's office and completed his registration, listing his residential address as “1014 N. Latitia St., Apt. B, Douglas, Ga.” Taylor approved this address after measuring to make sure that it was situated the statutorily-mandated distance from “day cares, churches, schools, etc.”

As part of his registration, Chestnut was required to sign a “Notification Form,” on which he acknowledged the restrictions placed upon him by OCGA § 42–1–12, including the requirement that he provide the sheriff's office with 72 hours prior notice before moving from the approved residential address. The notification form further provided that Chestnut understood that a residence address was a “street or route address” and that “[p]ost office box and homeless do not constitute an address.”

On June 17, 2009, Taylor went to check on Chestnut at his registered address. Chestnut was not present at the apartment, but his brother, Howard Chestnut, was. Based on a conversation that Taylor had with Howard, Taylor contacted Chestnut. When Chestnut appeared at Taylor's office the following day, he told the probation officer that the apartment belonged to his brother and that Chestnut had been forced to leave when the brother's minor daughter moved into the residence, as Chestnut knew that the terms of his probation forbade him from living with minors. Chestnut explained to Taylor that his niece was going to return to live with her mother and that when the niece moved out, Chestnut would move back in with Howard. On July 21, 2009, Taylor made a second visit to Howard's apartment but found no one at home. The following day, Taylor returned to the apartment with Detective Jamie Hersey of the Coffee County sheriff's office and found Howard at the residence. With Howard's permission, Hersey and Taylor searched the apartment and found no evidence that Chestnut was living there. Hersey then obtained a warrant for Chestnut's arrest, charging Chestnut with violating OCGA § 42–1–12 by failing to inform the sheriff's office 72 hours before changing his residential address. Chestnut was arrested on July 27, 2009, and was indicted on October 1, 2009. An attorney with the Waycross Circuit defender's office was apparently appointed to represent Chestnut³ and on November 18, 2009, that lawyer filed a motion to quash the indictment.⁴ The trial court denied that motion on March 22, 2010.

On July 18, 2010, Chestnut wrote to the clerk of the Coffee County Superior Court, stating that he had not heard from his attorney since April 2010 and asking when his case would come to trial, noting that he had been in jail for a year on the pending charges. The clerk responded to Chestnut on July 23, telling Chestnut that he did not yet have a trial date. Trial was thereafter set for October 18, 2010, but the case did not go forward at that time.⁵ On October 27, 2010, Chestnut's attorney filed a second motion to quash the indictment that was almost identical to the first motion to quash. The trial court denied the second motion to quash on December 13, 2010. After that time, the case remained dormant for almost two years while Chestnut remained in jail. Although the Waycross Circuit defender's office remained counsel of record, it appears that during this two-year period, no lawyer in that office was actually assigned to the case. The record reflects that during this time, Chestnut had no contact with an attorney and believed himself to be without legal representation. Accordingly, Chestnut, who has an eighth-grade education, filed four pro se motions, including two motions seeking the appointment of an attorney to represent him.⁶

On November 19, 2012, while there was apparently no specific attorney assigned to represent Chestnut, the trial court entered an order setting trial for December 10, 2012.⁷ The trial did not go forward on that date, and on December 13, 2012, three days after the scheduled trial date, the circuit public defender's office was formally relieved of its representation of Chestnut and a new attorney was appointed. This attorney represented Chestnut at his trial, which occurred on February 20, 2013, and he also represents Chestnut on this appeal.⁸

At trial, Hersey testified that following Chestnut's arrest on July 27, 2009, Chestnut was read his Miranda rights and agreed to speak with police. Chestnut told Hersey that he could not reside in his brother's apartment after Howard's teenage daughter moved in to the residence.⁹ Chestnut told police that since leaving his brother's home, he had been staying “on the Old Axson Highway.” When questioned further, however, Chestnut could not provide the officer with a street address or the name of any person with whom he had been residing.

Chestnut testified on his own behalf and stated that upon his release from prison he had stayed with his brother at the N. Latitia address. Within a day or two after being released, however, Chestnut was hospitalized for several nights. After getting out of the hospital, Chestnut learned that his teenage niece had moved into Howard's apartment, and Chestnut knew that under the terms of his probation he could not reside with a minor. Thus, although he frequently went to his brother's apartment to eat, Chestnut could not actually reside there.¹⁰

Chestnut also testified that although he had several siblings in the area, the sheriff's office would not allow him to live with any of his brothers or sisters because their homes were too close to schools, churches, parks, and playgrounds. Given the lack of friends or relatives with whom he could reside, Chestnut became homeless after moving out of his brother's apartment. Because there were no homeless shelters in the area, Chestnut began sleeping in an abandoned trailer situated in some woods off of Axson Road. Chestnut would alternate between sleeping in the trailer (which was boarded up and was without power or water) and different storage units belonging to a nearby storage facility. On some occasions, Chestnut would sleep behind a local furniture store. At no time did Chestnut ever leave Coffee County.

During direct examination, Chestnut's attorney questioned Chestnut about his failure to inform the sheriff's office of his homeless status and his failure to tell police where he was sleeping. In doing so, the lawyer erroneously represented to both the jury and Chestnut the contents of the registration form Chestnut had signed. The lawyer asked Chestnut: “Well, you realize one of the things that [registration] form says is that, if you're homeless, you're supposed to go report that as well?” Chestnut, who did not have the form in front of him, replied that “when I signed them papers, it didn't say that. It's not on there when I first signed them papers. Like he say, things have changed since I been out.” In fact, there is no evidence in the record showing that Chestnut ever signed any form that told him he had to register his homeless status.¹¹ Instead, the form signed by Chestnut reflected the then-current statutory language, which explicitly provided that for purposes of registration, an address was a route or street number and that “homeless does not constitute an address.” See OCGA § 42–1–12(a)(1) (2009). In other words, the registration form informed Chestnut that a homeless person who was without a route or street address could not satisfy the statute's registration requirements.

The jury found Chestnut guilty and the trial court sentenced him on March 28,...