Easter v. State

327 Ga.App. 754

761 S.E.2d 149

EASTER

v.The STATE.

No. A14A0358.

Court of Appeals of Georgia.

June 25, 2014.

Certiorari Granted Sept. 8, 2014.

Christopher Reginald Geel, Atlanta, for Appellant.

Rebecca Ashley Wright, Amanda Nichole Heath, Madonna Marie Little, for Appellee.

BRANCH, Judge.

Andra Easter was tried by a Richmond County jury and found guilty of one count of burglary ¹ and one count of aggravated assault.² HE NOW APPEALS FROm the denial of his motion for a new trial, arguing that the trial court's jury charge violated his due process rights by allowing the jury to convict him of committing both burglary and aggravated assault by a method not alleged in the indictment. Easter further contends that the trial court erred in instructing the jury that it should first consider whether Easter was guilty of burglary before considering the lesser included offense of criminal trespass. For reasons explained below, we reverse the trial court's denial of Easter's motion for a new trial as to the charge of aggravated assault, but affirm the denial of that motion as to the charge of burglary.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict.” Marriott v. State, 320 Ga.App. 58, 739 S.E.2d 68 (2013) (citation omitted). So viewed, the record shows that Easter's victim was his former girlfriend, DeShawn Coatney. Easter had lived with Coatney at her residence for approximately 18 months before the couple broke up in January 2006. Evidence of prior difficulties between the couple was introduced at trial and showed that after Easter moved out of Coatney's residence, Coatney had to call police several times because of Easter's harassing and sometimes violent behavior. According to Coatney, during the approximately six weeks between the end of the couple's romantic relationship and the incident at issue, she called police to her home on three or four occasions because Easter had appeared at her residence uninvited and refused to leave. Additionally, because Easter was consistently attempting to gain entrance to the house, Coatney had to change the locks on her residence several times in the span of a few weeks. An officer with the Richmond County Sheriff's Department testified that on February 6, 2006, he responded to a call regarding a domestic dispute at Coatney's residence. Coatney explained to the officer that Easter had been coming to her house repeatedly and trying to gain entrance and that on the night in question he had broken the screen door. The officer observed that the door had been damaged and the handle broken off. Another local police officer testified that on February 17, 2006, he responded to a call placed by Coatney regarding a traffic incident. Coatney reported that Easter had followed her home from work, rammed her car with his, and then attempted to break her car window with a crowbar. The officer noted damage to the rear bumper of Coatney's car and to one of the car's headlights and also observed that the passenger side mirror appeared to have been “knocked off” with an “object.”

On the same night as the traffic incident, someone had broken a front window on Coatney's house while she was at work. Before she left for work the following evening, Coatney rearranged the curtains on the broken window to cover the break. Coatney returned from work in the early morning hours of February 19 and upon entering her house, noticed that the curtains on the broken front window had been disturbed. Afraid that Easter might be in the house, Coatney retrieved a gun she kept hidden on top of her china cabinet and began a room-to-room search of the residence. After approximately 10 minutes of searching, Coatney found Easter hiding under a bed in one of the home's three bedrooms. When Easter came out from under the bed, Coatney saw that he was wearing what she described as “rubber gloves” and holding a crowbar. Coatney then began to back out of the room and Easter began moving towards her, holding the crowbar in an upright position. When Coatney asked what he was doing, Easter did not reply but instead simply continued walking towards Coatney. Fearing that Easter was about to attack her, Coatney fired two shots in his direction. A wounded Easter then fled the residence and Coatney called the police. After speaking with Coatney, officers began searching a wooded area near the residence for Easter, who eventually surrendered to police and was later charged with aggravated assault and burglary.

Easter testified in his own defense and admitted that he had entered Coatney's home on the night in question through the broken front window. Easter explained, however, that he had gone to the home because he had learned it had been broken into the night before, he had property at the residence, and he feared the intruders would return to burglarize the house.³ Sometime after he entered the residence, Easter heard a noise and then retrieved the crowbar from his car to use for his own protection. After he had “secured the house,” Easter decided to stay until Coatney returned from work to help protect both Coatney and the property. Easter decided to wait in a bedroom, however, so that Coatney would not be alarmed by him when she came through the front door. And once Coatney returned from work, Easter decided to wait for her to discover him in the bedroom, rather than coming out and startling her. According to Easter, when Coatney confronted him with the gun, Easter told her that he was not there to hurt her, but instead wanted to talk “like two mature adults, to sit down and talk.” Easter denied that he had any intent to harm Coatney that night, explaining that he loved her too much to hurt her.

At the charge conference following the close of the evidence, the trial judge agreed to charge the jury on criminal trespass as a lesser included offense of burglary. After extensive discussion with counsel concerning the verdict form, the parties agreed that burglary would appear before criminal trespass on that form and that the trial court would tell the jury to consider criminal trespass only if it found Easter not guilty of burglary. Thus the trial court charged the jury: “If you find that [Easter] is not guilty of the offense of burglary, you may consider a lesser offense of criminal trespass.” The trial court subsequently gave the jury a sequential charge, telling the jury that it should first consider Easter's guilt as to the offense of burglary, and that it should consider the crime of criminal trespass only if it found Easter not guilty of burglary.

When charging the jury on both burglary and aggravated assault, the trial court charged the relevant code sections in their entirety. Thus, the jury was instructed that a person commits burglary “when, without authority, that person enters or remains in any ... dwelling place of another person ... with the intent to commit a felony.” And with respect to aggravated assault, the court charged the jury, in relevant part, that “[a] person commits ... aggravated assault when that person assaults another person with a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The court then further instructed the jury that:

The crowbar ... is not a deadly weapon per se, but may or may not be used as a deadly weapon depending upon the manner in which it is used in the circumstances of the case. Whether or not, under all the circumstances and facts of this case, the crowbar alleged in the Bill of Indictment ... did, in fact constitute a deadly weapon or a weapon likely to cause serious bodily injury is a matter to be decided by you.

Defense counsel offered no objection to any of these charges.

After deliberating for approximately one hour, the jury sent a note to the judge asking if it could have a copy of the law defining aggravated assault and burglary. The trial judge conferred with counsel and decided that he would recharge the jury on both offenses. At this point, defense counsel noted for the first time that the indictment charged Easter with committing burglary by “entering” Coatney's home with intent to commit a felony, but not by “remaining” there with such intent. Trial counsel further noted that the indictment charged Easter with committing aggravated assault by using “a crowbar, an object which[,] when used offensively against another person is likely to result in serious bodily injury,” and that it did not charge Easter with committing aggravated assault by use of a deadly weapon. Noting that the jury had already been deliberating for an hour, that it could not “unring the bell,” and that it feared confusing the jury, the trial court recharged the jury using its original charges as to aggravated assault and burglary, but noted defense counsel's objections for the record.

When the jury came back with its verdict, the verdict form reflected that the jury found Easter guilty of burglary, not guilty of criminal trespass, and guilty of aggravated assault. The trial court explained to the jury that its verdicts as to the counts of burglary and criminal trespass were inconsistent and sent the jurors back to the jury room for further deliberations. The jury thereafter returned a verdict finding Easter guilty of both burglary and aggravated assault and making no finding as to the lesser included offense of criminal trespass.

Easter was convicted in June 2007 and shortly thereafter he filed his original motion for a new trial. Easter was released from prison and was on a supervised reprieve for medical reasons from November 8, 2010, through February 8, 2012, the date on which he was paroled. He filed an amended motion for a new trial on October 2, 2012, asserting error by the trial court in instructing the jury. The...