Smoot v. State

316 Ga.App. 102

729 S.E.2d 416

12 FCDR 1836

SMOOT

v.The STATE.

No. A12A0627.

Court of Appeals of Georgia.

June 5, 2012.

David Joseph Walker, Decatur, for Appellant.

Steven Kendall Snider, Tasha Monique Mosley, for Appellee.

BARNES, Presiding Judge.

A jury convicted Ebony Shaun Smoot of keeping a place of prostitution and possession of less than one ounce of marijuana, and the trial court denied her motion for new trial. On appeal, Smoot contends that there was insufficient evidence to support her conviction for keeping a place of prostitution, and she maintains that the trial court erred in denying her motion for a directed verdict of acquittal on the possession of marijuana charge, in overruling her objections to the admission of certain evidence, and in failing to give her requested jury charges on equal access, mere presence, and mere spatial proximity to drugs.

While the trial court acted within its discretion in admitting most of the evidence challenged by Smoot on appeal, we conclude that Smoot's conviction for keeping a place of prostitution must be reversed because the trial court erroneously allowed the State to introduce into evidence highly prejudicial hearsay statements of a neighborhood group to explain why officers were investigating Smoot's residence. And, because the remaining competent evidence does not exclude every reasonable hypothesis except that of guilty, double jeopardy principles preclude a retrial on the keeping a place of prostitution charge. In contrast, we affirm Smoot's conviction for possession of less than one ounce of marijuana for the reasons set forth below.

Following a criminal conviction, the defendant is no longer presumed innocent, and we construe the evidence in the light most favorable to the jury's verdict. Towry v. State, 304 Ga.App. 139, 695 S.E.2d 683 (2010). So viewed, the evidence showed that on the afternoon of September 27, 2010, after receiving complaints from the community about suspicious activity, two police officers conducted surveillance of a residence located in Clayton County. Smoot lived at the residence along with several other women.

During the surveillance of the residence, the officers observed a car pull into the driveway. An unidentified male got out of the car and entered the residence. He remained inside for a short period of time and then left in his car. After initiating a traffic stop and speaking with him, the two officers, along with a police lieutenant, conducted an independent investigation of certain websites by personally viewing their content.

As part of their investigation, the officers and lieutenant reviewed advertisements posted on Backpage.com and Craigslist.org, in addition to a separate website with the URL address of www. ifshewontiwill. com (the “Ifshewontiwill website”). The officers and lieutenant later testified that the web pages included “provocative” and “risque” photographs of semi-nude and nude women advertising “sexual services” and “sexual behaviors” for money and providing contact phone numbers. The Ifshewontiwill website included photographs of Smoot, and the advertisements posted on Backpage.com and Craigslist.orglisted contact phone numbers linked to Smoot.

Based upon the content of the web pages and their interview of the male driver, the officers applied for and obtained a search warrant for the residence. The warrant was executed on September 30, 2010. Upon entry, the police found several occupants in the residence, including Smoot. She was discovered “somewhat” undressed in the closet in the upstairs master bedroom. The police found marijuana in the master bedroom on a dresser in a closed wooden box and in plain view in several other areas upstairs, on the kitchen counter, and on a computer desk in the living room. According to one of the officers, a “stripper pole” was set up in the living room as well.

The police also found two types of business cards in the residence. The first business card contained the heading “Adult Social Network.” The card listed the web address of the Ifshewontiwill website and contained the statements “True Freaks ONLY!!!!,” “Ready to Have Some Fun,” and “Created by Gold,” which Smoot admitted was her nickname. The second business card listed “Ms. Shauna Gold” as the “HBIC/CEO” of “All You Need Entertainment.” The card included the address of the residence and claimed “10–20 Entertainers always available” and “Appointments taken 24/7.”

Smoot was arrested and charged with keeping the residence as a place of prostitution. A person commits the offense of prostitution “when he or she performs or offers or consents to perform a sexual act, including but not limited to sexual intercourse or sodomy, for money or other items of value.” OCGA § 16–6–9. In turn, the offense of keeping a place of prostitution has four elements: “a person must (1) knowingly grant or permit the use (2) of a place that offers seclusion or shelter (3) over which [s]he has or exercises control (4) to be used for the purpose of prostitution.” Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Georgia, Prostitution and Related Offenses, [316 Ga.App. 104]p. 1379 (2011 ed.). See OCGA § 16–6–10.¹ The indictment alleged that Smoot committed the offense of keeping a place of prostitution by knowingly permitting her Clayton County residence to be used for the purpose of prostitution.

Smoot also was arrested and charged with possession of less than one ounce of marijuana. The other occupants of the residence were charged with the same offense in the same indictment. The other occupants pled guilty to the marijuana charge, while Smoot chose to proceed with trial on both the marijuana charge and the keeping a place of prostitution charge.

At trial, the State relied upon the testimony of the two investigating officers who had conducted the surveillance of the residence and who had been involved in the execution of the search warrant, as well as the testimony of the lieutenant who had assisted the officers in reviewing the web pages. During the testimony of one of the officers, the trial court allowed the State to introduce into evidence, over objection, the affidavit that the officer submitted in applying for the search warrant. Among other things, the affidavit stated that the police had received complaints from “Concerned Clayton Community DEMANDING Change” that “OPEN PROSTITUTION” was occurring at Smoot's residence, and further stated that the neighborhood group had provided the police with “over 25 vehicle descriptions” of cars that had been seen coming and going from the residence for purposes of prostitution.² The trial court ruled that the affidavit was admissible because it constituted original evidence that was introduced not to prove the truth of the matters asserted in it, but to explain to the jury why the officers were investigating the residence. The trial court also allowed the affidavit to go out with the jury during its deliberations.

On the identical ground, the trial court allowed the State to introduce, over objection, a document that had been prepared by the same neighborhood group and had been submitted by them to the police. The document alleged that “OPEN PROSTITUTION” was occurring at Smoot's residence and contained a list of multiple vehicles seen by members of the group coming and going from there over a few days.

Also over objection, the trial court allowed the State to introduce testimony from the investigating officers and the police lieutenant about the content of the web pages they had reviewed, as well as printouts of the Ifshewontiwill website and of the advertisements posted on Craigslist.org. The printout of the Ifshewontiwill website contained photographs of women posing provocatively in various stages of undress, including photographs of Smoot that appeared under the name “Gold.” The website claimed “If She Won't I Will 100% Satisfaction Guaranteed,” stated that the business focused on “high-quality service” and “customer satisfaction,” and listed “a variety of offerings to choose from,” namely, “Partially/fully nude [c]leaning,” “Partially/fully nude cooking,” “Modeling,” “Dancing (private and parties),” “Girl/Girl Shows,” “Web Cam Shows,” “Escorting (companionship to events),” “X.X.X.,” and “Personal Adult Films.” The printouts of the advertisements posted on Craigslist.org were from the “adult services” section of that website and contained similar provocative photographs of women along with contact phone numbers.

Following the close of evidence, the jury convicted Smoot of both charged offenses. Smoot moved for a new trial, and the trial court denied her motion. This appeal followed.

1. Smoot maintains that the trial court erred in ruling that the search warrant affidavit, which contained hearsay statements from the neighborhood group purportedly linking her residence to prostitution, was admissible as original evidence to explain to the jury why the officers were investigating her residence. She further maintains that the error in admitting the affidavit was harmful and should result in the reversal of her conviction for keeping a place of prostitution. We agree.

OCGA § 24–3–2 provides: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” But it is well-settled Georgia law, emphasized time and again by our Supreme Court and by this Court, that

[o]nly in rare instances will the conduct of an investigating officer need to be explained. Otherwise, it is error to permit an investigating officer to testify, under the guise of explaining the officer's conduct, to what other persons related to the officer during the investigation. The mere circumstance of an officer's initiation and continuation of an investigation, without more, is not a relevant inquiry.

(Citations and punctuation...