Gialenios v. State

310 Ga. 869

855 S.E.2d 559

GIALENIOS

v.The STATE.

S20A1196

Supreme Court of Georgia.

Decided: March 1, 2021

James Kenneth Luttrell, P.O. Box 4104, Canton, Georgia 30114, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Kathleen Leona McCanless, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Cliff Head, A.D.A., Shannon Glover Wallace, District Attorney, Zachary Holman Smith, Cherokee County District Attorney's Office, 90 North Street, Suite 390, Canton, Georgia 30114, for Appellee.

Boggs, Justice.

After a 2019 jury trial, Robert Derek Gialenios was convicted of malice murder and possession of a firearm during the commission of a felony arising out of the shooting death of Bryan Overseth, the husband of Gialenios’ mistress. His amended motion for new trial was denied, and he appeals, asserting seven enumerations of error. For the reasons stated below, we affirm.¹

1. (a) Construed in the light most favorable to the jury's verdicts, the evidence presented at trial showed that Overseth and his wife, Kerri, were married for 16 years. Gialenios and Kerri met online while the Overseths were living in Montana, where they had recently moved from Georgia. Gialenios and Kerri established a long-distance romantic relationship, calling or texting on an almost daily basis. After Kerri's father suffered a stroke, she returned to Georgia in July 2016 to stay with him for about ten days at his home in a large subdivision in Holly Springs. She met Gialenios in person for the first time on the night she arrived, and the relationship became sexual after she let him into her father's home through a window.

Thereafter, Gialenios met Kerri almost every night while she was in Georgia, parking his white Toyota 4Runner at a Mexican restaurant a few blocks from her father's house and walking with Kerri through the neighborhood and on trails surrounding the nearby lake. Gialenios was carrying several guns whenever he met Kerri, and he told her that he "always carries. He never is without his guns." Kerri confided in Gialenios that she was unhappy in her marriage, and Gialenios told her that if she slept with Overseth again, he would kill them both. When Kerri said she was returning to her family in Montana, Gialenios was angry and sent her multiple messages demanding that she stay, even after she was on the flight home.

Gialenios repeatedly told Kerri that she "deserved better" and urged her to leave her husband, and he sent Kerri and her children gifts. Kerri's adult son, Brendan, discovered the affair through social media and spoke with Gialenios, who told the son that he and Kerri were in love and tried to enlist his sympathy. In November, Kerri told Gialenios that she was pregnant, and he became angry because it meant she had sex with Overseth despite his earlier threat to kill them both.

In December 2016, the Overseths came to visit Kerri's family in Georgia for the holidays. Overseth stayed with Kerri's father so that he could work remotely without interruption, and the family dog stayed there as well, while Kerri and the children stayed at her sister's house in Canton. Gialenios visited the sister's house frequently to continue the affair, sometimes appearing "unwanted and uninvited" and banging on the windows.

On Friday, January 20, 2017, Kerri told Gialenios that she was planning on returning to Montana with her husband and children. They met that night, and Kerri again told Gialenios that she would be leaving; he texted her repeatedly that something was "in the way" of their affair. On Saturday, January 21, the day of the murder, they communicated frequently by phone and text, and Gialenios texted her: "It's a good thing you and I, it's us, Babe. It's all us." He also texted her that "s**t that holds you back, I will remove...." They last spoke shortly after 8:00 p.m. Gialenios also sent a text that day to a friend in reference to Kerri stating: "She is all mine. I got my Queen."

That evening, Overseth returned from dinner and, while talking to Kerri on the phone, remarked that a large brick was sitting in her father's driveway. Kerri testified that she was suspicious that Gialenios had something to do with it and had "gone to confront" her husband; she attempted to text and call Gialenios, but his phone went to voicemail. According to cell phone records later obtained by means of a search warrant, Gialenios’ cell phone was located close to a nearby Cherokee County cell tower multiple times between 7:40 p.m. and 9:04 p.m., and at around 10:00 p.m., an employee of the nearby Mexican restaurant saw a white Toyota 4Runner parked beside the dumpster in the restaurant parking lot, with a male occupant.

Shortly after 10:00 p.m., Overseth left the house to walk the dog and did not return. At about 10:30 p.m., Kerri's father's next-door neighbor heard a single loud bang. Eventually, concerned that his son-in-law had not returned, her father went out to look for Overseth and found him lying by the side of the access road behind the house. The father tried to find a pulse, but could not, and he ran to the next-door neighbor's house and told him, "My son-in-law's lying out in the road. I think he's dead." At 10:41 p.m., the neighbor called 911, and police and EMTs responded but were unable to revive Overseth, who had a bullet wound in his forehead. Police found Overseth's wallet, keys, and cell phone on his person. An expended Federal brand .22-caliber shell was found near his feet.

When police informed Kerri of her husband's death and asked if she knew of anyone who wanted to harm him, she immediately gave them Gialenios’ name, although she did not know his address and had only his cell phone number. Police investigators located Gialenios the following day, and when interviewed, he gave evasive answers, saying that he did not recall if he was in Cherokee County the previous evening.

During Overseth's burial service, held on January 28, 2017, Gialenios showed up uninvited at the cemetery with what appeared to be dead flowers, and even though relatives told him to leave, he did not leave right away. On the night of February 1, Gialenios entered the back yard of Kerri's sister's house and left a package addressed to Kerri on the basement terrace. The package contained two Hallmark cards, a love note, a rose, a Publix receipt, and a note with a time and place for a movie. The family called the police, who located Gialenios at a nearby gas station. Gialenios admitted to a police officer that he had entered the sister's back yard and left the package there; he was arrested for stalking, and later for murder.

The medical examiner testified that the cause of death was a single contact gunshot wound to the head. A firearms examiner testified that the bullet, which was recovered from Overseth's head, was a .22-caliber bullet consistent with being fired from a Walther P22 pistol. Police learned from Gialenios’ ex-wife that he owned a .45-caliber Kimber pistol and a .22-caliber Walther P22 pistol; a firearms dealer testified that he sold Gialenios both firearms and a box of Federal brand .22-caliber ammunition. The Kimber pistol was recovered, but the Walther pistol was never found despite an extensive search. After Gialenios’ ex-wife told the police that they used to shoot both pistols from the back deck at their former home, the police searched the deck area of that home and recovered three expended Federal brand .22-caliber shells. A Georgia Bureau of Investigation firearms examiner testified that two of the shells were too corroded for him to determine any significant individual characteristics, but that the third shell and the shell recovered at Overseth's feet were fired from the same pistol.

(b) Gialenios contends that the evidence was insufficient to support his conviction, because the State's case was based solely on circumstantial evidence and failed to exclude all reasonable hypotheses of innocence under OCGA § 24-14-6.

However, whether an alternative hypothesis raised by the defendant is "reasonable" is a question committed principally to the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law.

(Citations and punctuation omitted.) Long v. State , 309 Ga. 721, 726 (1) (b), 848 S.E.2d 91 (2020). "Not every hypothesis is reasonable, and the evidence does not have to exclude every conceivable inference or hypothesis; it need rule out only those that are reasonable." (Citation omitted.) Akhimie v. State , 297 Ga. 801, 804 (1), 777 S.E.2d 683 (2015).

First, Gialenios asserts that the State's evidence did not exclude the hypothesis that Overseth was murdered by one of two other men with whom Kerri had exchanged sexual text messages in the past. But the evidence showed that one of those men lived in Montana, and nothing indicated that he had ever traveled to Georgia. The other man with whom Kerri had exchanged text messages lived in Cherokee County, but he had only met Kerri once at a grocery store in Canton over a year before the murder, and no evidence was presented of a physical relationship. Gialenios’ second hypothesis is that Overseth may have been shot by an unidentified person who was seen by another subdivision resident behaving suspiciously on the night of the murder. But no evidence connected this unidentified person to the crime or to the area of the subdivision in which Kerri's father lived.²

In contrast, evidence was presented that Gialenios was well acquainted with both Kerri's father's house and the surrounding area as he had been there on a daily basis, his vehicle was seen parked nearby on numerous occasions, including on the night of the murder, and his cell phone "pinged...