Jackson v. State

334 Ga.App. 368

779 S.E.2d 427

JACKSON

v.The STATE.

No. A15A0903.

Court of Appeals of Georgia.

Nov. 10, 2015.

Leon Hicks, for Appellant.

Elizabeth A. Baker, Tracy Graham Lawson, for Appellee.

RAY, Judge.

After a jury trial, Marvin Jackson, Jr. was convicted of one count each of aggravated stalking, family violence battery, and kidnapping, as well as two counts of influencing a witness.¹ Jackson appeals from his convictions and from the denial of his motion for a new trial, arguing that the evidence was insufficient to sustain several of his convictions and that the trial court erred in allowing the State to submit for consideration certain evidence in aggravation of punishment. Finding no error, we affirm.

Viewed in the light most favorable to the jury's verdict,² the evidence shows that Nikeesha Jackson (hereinafter, the "victim") was in a romantic relationship with Jackson.³ In December 2012, the victim and her young son, J.C., moved into a home in Clayton County near J.C.'s paternal grandmother.

In April 2013, Jackson was released from a federal facility in Kentucky where he had been serving a sentence for drug-related charges. The victim drove to Kentucky to pick him up and dropped him off at a halfway house in Atlanta. While Jackson was at the halfway house, the victim provided Jackson with transportation and a place to stay during weekend leave.

By May 2013, Jackson began exhibiting violent behavior towards the victim. On one occasion, the victim called the police after Jackson beat her up, but she testified that she lied to the responding officers to protect Jackson from being arrested. The victim testified that, after that night, she avoided calling the police because she was fighting to regain custody of her other children and did not want to document any violence in her household. On September 21, 2013, the day after Jackson was released from the halfway house, he came to live with the victim.

On September 22, 2013, Jackson and the victim attended a party in Henry County. The victim brought along her friends, Shermett Britten and Shakonica Crockett. Following an argument at the party, Jackson struck the victim. When Britten confronted Jackson, Jackson shoved her. Fearing that a fight was about to break out, the victim got in her car and drove way. Jackson then got into his car and followed the victim. Britten called 911, and she and Crockett headed towards the victim's house. When the victim arrived at her house, Jackson was already there. Britten and Crockett arrived just after the victim.

Davieon Norfus, the victim's 12–year–old neighbor, was walking up the street with some friends when he heard the victim screaming at Jackson to get out of her house. Through the window, Norfus saw Jackson hit the victim. Norfus and his friend went up to the open front door of the house and the friend told Jackson, "you're not supposed to hit a woman." Jackson told the boys to leave, but the victim asked them to stay and help her. The police then arrived and arrested Jackson. The victim and Britten then went to the store to purchase new locks for the house and replaced them that night.

On September 24, 2013, Jackson bonded out of jail and returned to the victim's house despite the terms of his pretrial bond that prohibited him from contacting her. When Jackson arrived at the house, the victim let him inside. The couple began arguing, and Jackson began to attack the victim by punching her, biting her, and pulling on her hair. The victim ran to J.C.'s room, woke him up, and yelled at him to go run to his grandmother's house for help. J.C., who was six years old at the time of trial, testified that he managed to run downstairs and outside the house when Jackson stopped him, picked him up, and brought him back inside the house. J.C. saw Jackson hit his mother in the face and testified that his mother's mouth was bleeding.

The next morning, the victim did not send J.C. to school because she was afraid he would tell a teacher what had happened the previous night. Britten called the victim to check on her, and the victim informed her that Jackson was back in the house. Britten then sent the victim a text message asking whether she should call the police, and the victim responded "yes." Britten called 911 and asked for an officer to check on the victim. When the responding officers arrived and knocked on the front door, Jackson ordered the victim and J.C. to take the stairs on the back side of the house to the garage and to hide in the car. The three sat inside the car for about an hour. After receiving no response, the officer left.

The next day, the victim sent J.C. to school and drove Jackson to report to his parole officer. Jackson showed up at the victim's house later to collect clothes the victim had purchased for him, and he called the police when he learned that she had returned them to the store. The victim then took out a warrant against Jackson, and he was arrested.

Jackson placed a collect call to his sister from jail, who then put the call through to victim. In that phone call, Jackson demanded that the victim drop the charges and stated that she could just "plead the Fifth" if the authorities pressured her.

1. Jackson first argues that the evidence was insufficient to support his convictions for aggravated stalking, kidnapping, and two counts of influencing a witness.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the [defendant] is no longer entitled to the presumption of innocence." (Citation omitted.) Newsome v. State, 324 Ga.App. 665, 665, 751 S.E.2d 474 (2013). In determining the sufficiency of the evidence, we neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the appellant guilty of the crime charged beyond a reasonable doubt. Byrd v. State, 325 Ga.App. 24, 24, 752 S.E.2d 84 (2013).

(a) Aggravated Stalking. The indictment charged Jackson with aggravated stalking for his act of contacting the victim "at her home in violation of a condition of pretrial release and without her consent for the purpose of harassing and intimidating her." Jackson does not challenge a finding that he arrived at the victim's house with the intent of threatening or harassing the victim, but rather, he contends that the evidence does not support a finding that he contacted the victim without her consent.

Under OCGA § 16–5–91(a), "[a] person commits the offense of aggravated stalking when such person, in violation of a ... condition of pretrial release ... in effect prohibiting the behavior 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." (Emphasis supplied.) "Thus, it is an element of the offense that the contact be without the victim's consent." Bragg v. State, 285 Ga.App. 408, 410(1), 646 S.E.2d 508 (2007).

Here, Jackson had been arrested for hitting the victim and failing to leave her home when asked. After he bonded out of jail, Jackson went to her house in violation of the terms of his conditions of pretrial release. The victim allowed him to come inside, and she provided no testimony that she ever asked him to leave the house. However, there was also no evidence that the victim invited Jackson to her home or consented to his presence prior to his arrival at her door. The jury could infer that the victim did not consent to Jackson coming back to her house by the fact that she had him arrested the evening prior and immediately changed the locks once he was out of the house.⁴ The jury could also infer by his conduct both before and after he returned to the house that Jackson came to the victim's house for the purpose of threatening or harassing her. See Crapps v. State, 329 Ga.App. 820, 766 S.E.2d 178 (2014) ("To prove that an act was done for the purpose of harassing and intimidating the victim, ... the State must show that the act was part of a pattern of harassing and intimidating behavior") (citation and punctuation omitted).

Although the State at trial argued that the consent element of aggravated stalking was met when the victim impliedly revoked her consent after the abuse began, we find that the crime of aggravated stalking was completed when Jackson arrived at the door of the victim's house, in violation of the conditions of his pretrial release, without her having invited him to do so. Compare Bragg, supra (insufficient evidence to support aggravated stalking conviction when victim initiated contact with defendant to suggest that they meet, brought a friend along with her to the meeting, and never withdrew consent). See also, Littleton v. State, 225 Ga.App. 900, 902 –903(4), 485 S.E.2d 230 (1997) (sufficient evidence supported aggravated stalking conviction even though victim had previously allowed the defendant into her home after entry of protective order).

(b) Kidnapping. Jackson next argues that the evidence was insufficient to support his conviction for kidnapping the child because the State failed to carry its burden of proving that Jackson forcibly "impose[d] his will over [J.C.] to move or hold him in the garage." We disagree.

The indictment charged Jackson with kidnapping for his act of "abduct[ing] [J.C.] without lawful authority ... and [holding] him against his will when the accused forced him into the garage for the purpose of (1) concealing or isolating him, (2) to lessen the risk of detection, and (3) to avoid apprehension[.]"

OCGA § 16–5–40(a) provides that "[a] person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will." And "[f]or the offense of kidnapping to occur, slight movement shall be sufficient[.]" OCGA § 16–5–40(b).

Here, the victim testified that the morning after Jackson...