Huber v. State

368 Ga.App. 401

890 S.E.2d 271

HUBER v. The STATE.

A23A0072

Court of Appeals of Georgia.

June 27, 2023

George Chadwell Creal Jr., Atlanta, for Appellant.

Lee Darragh, Gainesville, Rachel Morgan Bennett, for Appellee.

Doyle, Presiding Judge.

Following a bench trial, the Superior Court of Hall County found John Huber guilty of one count each of aggravated assault, first degree burglary, elder abuse, aggravated stalking, terroristic threats, false imprisonment, family violence battery, simple battery, and theft by taking, as well as two counts of hindering an emergency telephone call. ¹ On appeal, Huber argues that the trial court erred by failing to apply the rule of lenity to the elder abuse charge and by failing to dismiss the aggravated stalking and first degree burglary charges. ² For the reasons set forth infra, we affirm Huber's convictions but vacate his sentence and remand for resentencing.

Viewed in the light most favorable to the verdict, ³ the evidence shows the following facts. Huber and Lindsay Rock married in 2018 and had two children together, a daughter born in 2019 and a son born in 2020. During the marriage, Huber and Rock lived in a home in Hoschton that Rock had purchased in 2009 (the "Residence").

After Rock became pregnant with their son, her relationship with Huber started to change for the worse. Huber began insulting Rock in front of their daughter and threatening to send naked photos to her colleagues and her parents. In the early morning hours of May 26, 2020, Huber woke up Rock, who was pregnant, and began yelling at her. Huber punched the television and threw a small fan across the room, breaking both items.

Things continued to escalate until January 23, 2021, a month after their son was born. Huber was physically abusive to Rock in front of their daughter and threatened to kill Rock. Huber left the Residence, and Rock called the police. Rock filed for divorce the following Monday, January 25. Huber had moved out of the Residence, but Rock continued to communicate with him and facilitate his visitation with the children.

In mid-March 2021, Huber's communications with Rock became more threatening. Huber made threats to Rock and her parents over text messages and over the phone. Huber repeatedly threatened to come to the Residence, and Rock repeatedly told him he was not welcome.

On March 22, 2021, Huber showed up at the Residence unannounced and against her wishes. Huber used a heavy object to bang on the door, causing damage to the door. Rock called 911 and took a video recording of Huber trying to get into the Residence.

Rock also contacted her divorce attorney who requested a restraining order against Huber. Following an emergency hearing on March 24, 2021, a restraining order was granted that, inter alia, gave Rock exclusive use and possession of the Residence and enjoined Huber from coming within 500 yards of Rock or any member of her family, including their respective homes.

About seven weeks later, on May 12, 2021, Huber again showed up unannounced at the Residence. Although it was raining, Huber parked his car at a nearby country club and walked to the Residence through a wooded area. Rock called out when she heard the door from the garage open. Hearing Huber's voice, Rock grabbed her phone to call 911. Rock met Huber at the bottom of the stairs and told him to leave. Huber grabbed Rock, took her phone out of her hand, threw it to the ground, and threw her into a door jamb.

Rock's 68-year-old mother, who had been with Rock's infant son upstairs, heard the commotion and started coming down the stairs while trying to call 911. Huber saw the mother, grabbed her by the wrist, and used his other hand to grab her phone. Huber pulled her down approximately five stairs and then flung her against a file cabinet, causing her to injure her elbow.

Huber then pinned Rock down on the floor while holding a knife above her. Rock's mother ran outside screaming for help and found a neighbor who called 911. Huber ran out of the house. Rock used her work phone to call 911. The police arrived and ultimately found Huber in the country club bathroom, covered in mud.

The trial court found Huber guilty of 11 of the 13 charges against him. This appeal followed.

1. Huber argues that the trial court erred in failing to apply the rule of lenity to the elder abuse charge both by denying his general demurrer and motion to dismiss and at sentencing.

(a) Count 4 of the indictment charged Huber with violating OCGA § 16-5-102 (a) in that he "did willfully inflict physical pain and injury upon Lillian Rock, a person 65 years of age or older by[ ] dragging her down stairs[.]" OCGA § 16-5-102 (a) provides in relevant part that "[a]ny person who ... willfully inflicts physical pain, [or] physical injury ... upon a[n] elder person ... shall be guilty of a felony[.]"

Prior to trial, Huber filed a general demurrer, arguing that the same facts alleged in the elder abuse count could be used for misdemeanor battery under OCGA § 16-5-23.1 (j). Following a hearing, the trial court denied the general demurrer but withheld ruling on whether the rule of lenity could apply at any post-conviction hearings.

"If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good." ⁴ Here, because Huber would be guilty of elder abuse if the facts as alleged in the indictment were taken as true, ⁵ the indictment was sufficient to withstand the general demurrer. ⁶ Huber's reliance on the rule of lenity does not change this result.

The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. But [Huber] has provided no authority, and we have found none, for the proposition that the rule of lenity could subject to demurrer an otherwise sufficient indictment. ⁷

Further, there is no ambiguity because the statutes do not define the same offense. ⁸ Unlike OCGA § 16-5-23.1 (a), OCGA § 16-5-102 (a), as charged, required proof that the victim was 65 years or older. ⁹ Moreover, the two statutes do not criminalize the same conduct because OCGA § 16-5-102 (a) may be violated a number of ways; it does not require physical or bodily harm. ¹⁰

(b) Huber contends that his conduct, as charged, subjected him to prosecution and sentencing for both battery and elder abuse. The State concedes that the misdemeanor battery count should have merged with the felony elder abuse count for sentencing.

We agree with the parties that the trial court erred ¹¹ by not merging Count 10 (misdemeanor battery) into Count 4 (elder abuse) because, under the facts of this case, the battery conviction was included in the elder abuse conviction. ¹² "When a defendant is convicted of multiple crimes based upon the same act, the principle of factual merger operates to avoid the injustice." ¹³ "The controlling principle is that the lesser offense merges into the greater." ¹⁴

Here, both the elder abuse charge (Count 4) and the misdemeanor battery charge (Count 10) required the State to prove Huber caused physical pain to Lillian Rock by dragging or throwing her down the stairs. While the elder abuse charge also required proof that Lillian Rock was 65 years or older, ¹⁵ the misdemeanor battery charge (Count 10) did not require proof of any additional fact. ¹⁶ Thus, on remand, the trial court must merge the misdemeanor battery (Count 10) conviction into the elder abuse conviction (Count 4). ¹⁷

2. Huber argues that the trial court erred in denying his motion to dismiss the aggravated stalking charge.

(a) Huber contends that he did not violate an order enumerated in the aggravated stalking statute because there was, "[a]t best," a temporary injunction entered while the divorce was pending.

OCGA § 16-5-91 (a) provides:

A person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to Code Section 17-6-110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, good behavior bond, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole 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.

As recited above, following an emergency hearing in March 2021, the superior court entered an "Order on Plaintiff's Motion for Emergency Hearing and Entry of Immediate Restraining Order" (the "March 2021 Order"). In Paragraph 12, titled "Restraining Order," the court granted Rock's "Motion for entry of a Restraining Order against [Huber]" and "immediately restrained and enjoined [Huber] from doing, or attempting to do, or threatening to do, any act of injury, maltreating, molesting, following, harassing, harming or abusing [Rock], either of the parties’ minor children, or any member of [Rock's] family ... in any manner." The court specifically directed Huber not to come within 500 yards of Rock, either child, any member of Rock's family, "nor their respective homes," and to "have absolutely no contact with [Rock]." The court also "authorized and directed" law enforcement officers "to enforce this Order, including the Restraining Orders ¹⁸ contained in this Order." Under the broad language of OCGA § 16-5-91 (a), the March 2021 Order prohibiting any contact was a "temporary restraining order" for purposes of the aggravated stalking statute. ¹⁹

(b) Huber argues that he could not stalk someone at his own residence. Specifica...