Myers v. State

898 S.E.2d 834

MYERS

v.The STATE.

A23A1319

Court of Appeals of Georgia.

February 22, 2024

John Eric Schneider, for Appellant.

Bobby Lee Christine, Savannah, Kevin Richard Majeska, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Austin Myers was convicted of interstate interference with an adoptive grandfather’s lawful custody of his 16-year-old grandchild. Myers appeals, setting forth five enumerations of error. He first challenges the sufficiency of the evidence supporting his conviction; but the record reveals sufficient evidence from which the jury was authorized to find Myers guilty of the charged offense beyond a reasonable doubt.

Myers next alleges that the trial court erred in denying his motion for discharge and acquittal because of a speedy trial violation; but he has failed to show that the trial court abused its discretion in denying the motion. In his third enumeration, Myers contests the admission of evidence of his sexual acts with the 16-year-old; but such intrinsic evidence was admissible to explain context and motive of the crime. Myers next claims that his trial counsel was ineffective; but he has failed to show deficient performance by his attorney. Finally, Myers correctly asserts that the trial court erred in ordering, as a condition of his sentence, that he register as a sexual offender. So we affirm the judgment of conviction for interstate interference with custody, but direct the trial court on remand to amend the sentence by removing the improper condition requiring sex offender registration.

1. Sufficiency of the evidence

[1] On appeal, we "view[ ] the evidence in the light most favorable to the jury’s verdict[.]" Owens v. State, 353 Ga. App. 848, 840 S.E.2d 70 (2020). So viewed, the evidence showed that when L. E. K. was 15 years old, she began communicating with Myers in an online chat room. L. E. K. told Myers that she was 15, in high school, and lived with her grandparents. Her online profile indicated her age and she also sent pictures of herself to him. Myers, who was in his sixties, did not tell L. E. K. his age or send pictures of himself to her. At Myers’ request, he and the child began communicating through private messages, and Myers eventually suggested that L. E. K. come live with him.

In April 2019, after L. E. K. had turned 16 years old, Myers made arrangements to pick her up from her house. Myers instructed L. E. K. to pack her bags, remove the SIM card from her phone, leave a note saying that she was running away, and meet him at a nearby park. L. E. K. snuck out of her house and met Myers, who was waiting in his pickup truck. When L. E. K. got into the truck, Myers kissed her and she realized his age for the first time. Myers then drove L. E. K. to a motel near Atlanta, where he had sexual intercourse with her. The next day, Myers drove L. E. K. to his house in Missouri, where he had sexual intercourse with her multiple times for approximately a week.

In the meantime, L. E. K.’s grandparents, who had adopted her in 2014, reported her missing to law enforcement officers. Investigators were eventually able to determine the child’s location through an internet address from which she had contacted a friend. A Missouri sheriff found L. E. K. hidden in a bedroom in Myers’ house, and she was later released to her grandfather and returned to Georgia.

Under OCGA § 16-5-45 (b) (1) (A), a person commits the offense of interference with custody when, without lawful authority to do so, he knowingly or recklessly takes or entices a child away from the individual who has lawful custody of the child. [For purposes of this code section,] OCGA § 16-5-45 (a) (1) defines "child" as an individual under the age of 17 years, and subsection (a) (3) defines "lawful custody" as, inter alia, that custody [awarded to a parent, guardian, or other person by a court of competent jurisdiction].

Thompson v. State, 245 Ga. App. 396 (1), 537 S.E.2d 807 (2000). Under OCGA § 16-5-45 (c) (1), the offense constitutes interstate interference with custody when the person removes the child from the state of Georgia.

In challenging the sufficiency of the state’s evidence as recounted above, Myers argues that it did not exclude the reasonable hypothesis that he was unaware of the child's age. See OCGA § 24-14-6 ("To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."). But Myers' "reliance upon the reasonable hypothesis rule … is misplaced, as this rule applies only when the evidence is entirely circumstantial. Because [L. E. K.’s] testimony provided direct evidence [that Myers knew her age], the reasonable hypothesis rule is not at issue here." Chamblee v. State, 333 Ga. App. 749, 752, 777 S.E.2d 41 (2015) (citation and punctuation omitted). See also OCGA § 24-14-8 ("testimony of a single witness is generally sufficient to establish a fact").

[2] While Myers has cited other conflicting evidence, it was up to the jury to determine witness credibility and resolve conflicts in the evidence. Carter v. State, 320 Ga. App. 454, 456 (1), 740 S.E.2d 195 (2013). "[A]s long as there [was] some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld. Such competent evidence is present here, and we find no error." Chamblee, supra at 752-753, 777 S.E.2d 41 (citation and punctuation omitted).

2. Speedy trial

[3–5] Myers contends that the trial court erred in denying his motion for discharge and acquittal because the state violated his constitutional speedy trial rights. We disagree.

A constitutional speedy-trial claim is evaluated under the two-part framework set out in Barker[ v. Wingo, 407 U. S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)]. First, the trial court must consider whether the length of time between the defendant’s arrest and trial is sufficiently long to be considered presumptively prejudicial. If not, the speedy-trial claim fails at the threshold. A delay of one year or more is typically presumed to be prejudicial…. When that threshold is crossed, the trial court proceeds to the second part of the framework, applying a context-focused, four-factor balancing test to determine whether the defendant was denied the right to a speedy trial. These four factors are (1) the length of the delay; (2) the reasons for it; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant.

Redding v. State, 313 Ga. 730, 731-732 (2), 873 S.E.2d 158 (2022) (citations and punctuation omitted).

(a) Presumptive prejudice

[6] We agree with Myers that the trial court erred in finding that the delay of 26 months between his arrest and trial was not presumptively prejudicial. As noted above, a "delay of one year or more is typically presumed to be prejudicial." Redding, supra at 732 (2), 873 S.E.2d 158. See also Williams v. State, 314 Ga. 671, 678 (4), 878 S.E.2d 553 (2022) (delay of 25 months was presumptively prejudicial). Nevertheless, we also agree with the state that Myers has not shown that he was harmed by this error because the trial court did not end its analysis upon finding no presumptive prejudice, and instead it proceeded to the second part of the Barker framework and conducted the four-part balancing test, just as if there had been a finding of presumptive prejudice. See Leslie v. State, 301 Ga. 882, 885 (2) (b) (i), n. 2, 804 S.E.2d 351 (2017) (no reversible error where trial court, despite finding no presumptive prejudice, still "did conduct a proper [ ]Barker analysis"); Nave v. State, 171 Ga. App. 165, 167 (3), 318 S.E.2d 753 (1984) (appellant unable to demonstrate harm from trial court’s speedy trial decision).

(b) Four-part balancing test

[7, 8] "This [balancing] task is committed principally to the discretion of the trial court, and this [c]ourt has a limited role in reviewing the trial court’s decision." Redding, supra (citation and punctuation omitted). Accordingly, "the trial court’s weighing of each factor and its balancing of all four factors — its ultimate judgment — are reviewed on appeal only for abuse of discretion." Williams, supra (citation and punctuation omitted). Here, the trial court’s ultimate judgment did not constitute an abuse of discretion.

(1) Length of delay

[9–11] This first "factor, [addressing] whether the pretrial delay was uncommonly long, requires courts to analyze the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Labbee v. State, 362 Ga. App. 558, 562 (2) (a), 869 S.E.2d 520 (2022) (citation and punctuation omitted). "The length of delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges in that case. And there is no bright-line rule [as to what constitutes] uncommonly long delays [that] must be weighed heavily against the [s]tate." Id. at 562-563 (2) (a), 869 S.E.2d 520 (citation and punctuation omitted). Indeed, "the idea of a bright-line rule is anathema to the analysis of speedy trial claims … [, which must be decided] on an ad hoc basis." Milner v. State, 329 Ga. App. 654, 658 (2) (a), 765 S.E.2d 790 (2014) (citations and punctuation omitted).

[12] Here, the trial court did not find the length of the delay to be uncommonly long, and instead held it to be neutral and benign under the unique circumstances of the case. In doing so, the court noted that while the charge itself was not overly complex, the case was complicated by the year-long state-wide emergency prohibiting jury trials because of the COVID-19 pandemic and by the multi-state involvement of law enforcement officials. "The trial court properly considered the peculiar circumstances of this case, and we cannot say that its conclusion that the case was … prosecuted with [sufficient] promptness [under...