Nosratifard v. State

320 Ga.App. 564

740 S.E.2d 290

NOSRATIFARD

v.The STATE.

No. A12A2243.

Court of Appeals of Georgia.

March 20, 2013.

Sharon Lee Hopkins, for Appellant.

Penny Alane Penn, Dist. Atty., for Appellee.

McMILLIAN, Judge.

Shahrokh Nosratifard appeals from the trial court's denial of his motion for a new trial following his conviction on five counts of aggravated stalking based on five text messages sent to Karen Maxie. On appeal, Nosratifard asserts that the evidence was insufficient to support his convictions and further argues that the trial court erred in failing to merge the counts involving texts that occurred as part of a continuous course of conduct or conversation. Because we find that the evidence was sufficient to support Nosratifard's convictions and that his convictions were not subject to merger, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). This Court neither weighs the evidence nor determines the credibility of witnesses, but rather considers only whether, after viewing the evidence in the light most favorable to the jury's verdict, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation, punctuation and footnote omitted.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence at trial showed that Karen Maxie met Nosratifard online in 2004, and they began a relationship. By 2006, Nosratifard “was practically living with [her].” During this time Maxie helped finance Nosratifard's cabinet business. But by 2007, the relationship had deteriorated, and by May 2008, Maxie decided to end the relationship due to Nosratifard's “mental abuse.” She said this abuse included possessiveness, watching her home, searching her home without consent, running a background check on her and threatening to distribute intimate pictures of her to her family, co-workers and the community in which she lived. When Maxie told Nosratifard that the relationship was over, he “exploded” and said that he would never let her go.

Although Nosratifard never stayed at Maxie's house again, he called her continuously and “pled and begged and screamed and cussed” for her to give him a second chance. Maxie said she kept talking to him and trying to persuade him that it would be better for them to be friends because she wanted to “do whatever it [took] to keep from provoking him, and I felt like if I got him to be friends that sooner or later he would get the message and leave me alone, but he never did.”

On the few occasions when she agreed to meet Nosratifard, the meetings did not go well. One meeting in August 2008 occurred after Nosratifard demanded that Maxie get her belongings from his cabinet shop. Maxie's adult daughter went with her to the shop, and became upset with Nosratifard's treatment of her mother during the meeting. She shook her finger in Nosratifard's face and told him to leave her mother alone. On the way home, Nosratifard called Maxie on her cell phone to complain about her daughter's behavior and to threaten her family. The next day, Maxie and her children discovered that seven tires on their cars had been slashed. Maxie and Nosratifard met later in a public parking lot, and Nosratifard told Maxie that he had slashed the tires on her children's cars. Maxie reported these incidents to the police.

In January 2009, Nosratifard called Maxie repeatedly, screaming, cursing, and demanding that she return everything that he had ever bought for her. Maxie contacted police to report Nosratifard's continuing behavior and subsequently obtained a Temporary Protective Order (“TPO”). On the day she obtained the TPO, Nosratifard called her beginning at 5:00 a.m. and continued throughout the day, even after the order was issued. Maxie decided to meet Nosratifard at a gas station on the way home from court to give him the things he wanted, hoping that would satisfy him. But he became upset and began tossing things around, so Maxie got in her car and drove away. A few days later, Maxie noticed Nosratifard following her to work at around 4:30 a.m., and she called and asked him to stop. In February 2009, a hearing was held on her request to extend the TPO, but after Nosratifard agreed to leave her alone, the judge denied her request.

The next day, Maxie saw Nosratifard parked in an overlook near her house as she was driving home. He motioned her over, and she stopped because she was afraid of what might happen if she did not. Nosratifard gloated about beating her in court, and told her that she needed to get the TPO cleared from his record, or he was going to show her “what revenge is all about.” Later that month, Maxie saw Nosratifard again parked in the overlook. He waved her over, but she did not stop. He followed her, passing three vehicles to get directly behind her, and flashed his lights on and off signaling her to stop. Maxie called 911 to report his behavior. Maxie felt threatened by Nosratifard's behavior. In February 2009, she installed a security fence, security lights and a camera at her home; she also purchased a gun and a dog.

Maxie and her daughter began shopping in an adjacent county to avoid Nosratifard, but on March 1, 2009, they observed a white truck following them and were able to get the tag number. Police later identified the truck as a vehicle rented by Nosratifard. Two days later, on March 3, 2009, Maxie saw Nosratifard standing beside his truck, which, once again, was parked in the overlook.¹ He tried to wave her over, but she kept driving. When Maxie saw Nosratifard pass a car so he could be directly behind her, she called police. He repeatedly closed in on her car, and she was afraid that he was going to hit her. When they came to a stop light, Nosratifard started to get out of his car, but the light changed to green, and Maxie sped off, taking a left turn from the right lane. Nosratifard pulled beside her car and began shaking his finger and screaming obscenities at her. She pulled into a gas station, and when police arrived Nosratifard was placed under arrest for aggressive driving.² Maxie obtained a second TPO the next day. While Nosratifard was in jail, Maxie and her children all changed their cell phone numbers.

Nosratifard posted bond for his release on or about March 9, 2009, and one of the special conditions of his bond order provided:

The Defendant shall stay away, absolutely, directly or indirectly, by person, telephone, e-mail, messenger or any other means of communication from KAREN MAXIE hereinafter referred to as “victim.” That includes, but is not limited to, the victim's home, school, and place of business or routes of travel to or from those locations. Violations connected with contacting/following the victim may subject the Defendant to a separate prosecution for the felony offense of Aggravated Stalking.

Although Maxie and her family had been receiving text messages they believed to be from Nosratifard since 2008, they received no texts while Nosratifard was in jail on the driving charge. But after Nosratifard bonded out of jail, Maxie and her children began receiving hang-up calls on their home phone number. They did not recognize the numbers showing on the caller ID for these calls. In addition, they began receiving text messages on their cell phones from numbers they did not recognize. Maxie and her children testified that from the spelling, choppy English, certain phrases and the content of the texts, they believed that Nosratifard was sending these texts. For example, one text included the language “we need to talk face to face,” which Maxie and her son identified as a phrase Nosratifard used repeatedly. Another text states, “ask your mamy [sic] she knows,” and Maxie and her children testified that Nosratifard often referred to Maxie as her children's “mammy” because he thought she babied them. Other texts referred to Maxie's reports to the police, and Nosratifard was aware that Maxie had reported his actions to the police. Another text referred to voice recordings of phone messages from Nosratifard that Maxie had given police.

The police were present when Maxie received some of these texts. Deputy Sheriff Brian Sadler of the Forsyth County Sheriff's Office arrived at Maxie's house at 8:19 p.m. on April 2, 2009,³ after she notified police that she was receiving harassing phone calls. He observed that Maxie was extremely nervous and frightened. The house phone rang continuously, approximately 10 to 15 times while Sadler was there, and she was receiving text messages. At 8:32 p.m., she received the text at issue in Count IV, which stated, “I know you will show all off [sic] this text to the police but don't because more trouble for you.” Because this text referred to the police within minutes after Sadler entered Maxie's house, he became concerned that Nosratifard was keeping the house under surveillance. He called for back-up and searched outside, but the police did not locate anyone.

When Investigator Matthew Starr of the Forsyth County Police Department attempted to trace the phone numbers from which the hang-up calls and text messages were sent, he discovered that most of the messages and calls came from prepaid phones,⁴ for most of which no provider could be identified, and thus he was unable to connect Nosratifard with any of those phone numbers. However, he was able to trace one of the numbers from the hang-up calls to a pay phone located approximately five to ten minutes from Nosratifard's cabinet shop.

Nosratifard was arrested on April 28, 2009 and charged with the five counts of aggravated stalking, arising out of five text messages sent to Maxie's phone between March 21 and April 15, 2009. Maxie and her children received no further...