Adams v. State

• Decision Date: 15 November 2011
• Docket Number: No. A11A1266.,A11A1266.
• Parties: ADAMS v. The STATE.
• Court: Georgia Court of Appeals

11 FCDR 3775

312 Ga.App. 570

718 S.E.2d 899

ADAMS

v.The STATE.

No. A11A1266.

Court of Appeals of Georgia.

Nov. 15, 2011.

Jennifer Adair Trieshmann, for appellant.

Norman Stanley Gunter, Dist. Atty., Jeremy David Clough, Asst. Dist. Atty., for appellee.

DOYLE, Judge.

Following a jury trial, John Lawrence Adams was convicted of criminal attempt to entice a child for indecent purposes ¹ and making a false statement in a matter within the jurisdiction of a sheriff's office. ² Adams appeals following the denial of his motion for new trial, arguing that the trial court violated OCGA § 17–8–57 and erred when charging the jury. Adams also challenges the sufficiency of the evidence supporting his conviction for criminal attempt to entice a child for indecent purposes. We affirm, for the reasons that follow.

Viewed in favor of the verdict,³ the record shows that Robyn Still, an investigator with the White County Sheriff's Department, established an undercover online identity as part of an investigation intended to target child predators. Still identified herself under the pseudonym “Savannah Patterson,” a 14–year–old girl, and she posted a photograph of a 14–year–old child.⁴

On March 9, 2007, Savannah logged into a regional chat room and was contacted by Adams, whose user name was “million_hamster_march,” and they began communicating through instant messaging. After Savannah disclosed that she was 14 years old, Adams asked her if she liked older men and sex, and Savannah indicated that she was a virgin. Adams then suggested that they meet, describing various sexual acts that he intended to engage in with Savannah, including vaginal, oral, and anal sex. Adams also used a webcam to depict himself masturbating while he communicated with Savannah, and Still recorded the video, which included shots of Adams's face. At one point, Adams warned Savannah that she should not tell her mother about their conversations and that they needed to “be careful” because he “[did not] want to get in trouble ... [for b]eing with a minor.”

Savannah agreed to meet Adams, but suggested that they meet at the bathrooms at the dam at Unicoi State Park because her house was not listed on a map and was difficult to find. Adams agreed, stating that he would be driving a black Ford truck and would bring condoms.

On the morning of their arranged meeting, Adams was taken into custody on a dock in Unicoi State Park across the lake from the arranged meeting location near the dam. Adams's truck, a black Ford, which did not have a license plate, was in the nearby parking lot.⁵ Police found a computer, several cameras, and a receipt upon which someone had handwritten Savannah's name and home address. The police also found condoms in both the truck and Adams's pockets.

Police transported Adams to the police station, where they interviewed him. During his interview, Adams advised Still that he lived in Florida. Adams also gave the following written statement:

It's been a fant[as]y of mine to have sex with a underaged girl. I know it's wrong[,] and [I] need help with this problem. I was going to meet her in Helen. I need help with this problem. I know [I] need help. I am sorry for what [I]'ve done. I am done with the [I]nternet. Don't want [i]t. I know [it's] wrong. I was wanting this stuff to [h]appen[.] I was scared though. I'm just really sorry and feel terrible about what happened[.]

Adams was charged with two counts of criminal attempt to commit aggravated child molestation (Counts 1 and 2), criminal attempt to commit child molestation (Count 3), criminal attempt to commit enticing a child for indecent purposes(Count 4), three counts of violating the Computer Pornography and Child Exploitation Act (“CPCEA”) (Counts 5, 6, and 7), two counts of making a false statement in a matter within the jurisdiction of a sheriff's office (Counts 8 and 9), use of a license plate to conceal identity (Count 10), and removal of a license plate to conceal identity (Count 11).

The jury found Adams guilty of Counts 4, 5, 6, 7, and 8. The jury was unable to reach a verdict as to Counts 1, 2, or 3, and the trial court declared a mistrial as to those charges. The State entered a nolle prosequi as to Count 9, and the jury found Adams not guilty on Counts 10 and 11. The trial court subsequently entered an order of acquittal as to Counts 1, 2, 3, 9, 10, and 11, and sentenced Adams to confinement for the remaining counts. Adams filed a motion for new trial on several grounds, and the trial court granted the motion as to Counts 5, 6, and 7 based on the State's agreement thereto, but denied the motion as to Counts 4 (criminal attempt to entice a child for indecent purposes) and 8 (making a false statement in a matter within the jurisdiction of a sheriff's office). This appeal followed.

1. Adams argues that the trial court violated OCGA § 17–8–57 in two instances. Pursuant to OCGA § 17–8–57,

[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

To constitute a violation of the statute, “the comments must focus on a disputed issue of material fact. The purpose of this limitation, in part, is to prevent the jury from being influenced by any disclosure as to the judge's opinion of a witness's credibility.” ⁶

Defense counsel did not move for a mistrial or object to either of the trial court's comments that Adams argues were improper. Nevertheless, Adams “is entitled to a new trial if the judge's comments violated OCGA § 17–8–57, because such a violation always constitutes plain error as a matter of law.” ⁷

(a) During voir dire, defense counsel asked the prospective jurors whether they used Facebook. One prospective juror responded that although she did not use Facebook personally, she did register and view her 25–year–old daughter's profile page. The trial court then stated, “The problem is, Tammy, you shouldn't have told him she was 25. You don't look 25.”

Adams maintains that part of his defense at trial was that he did not believe Savannah was a minor. Therefore, according to Adams, the trial court's comment to the juror regarding her age constituted a comment on Adams's credibility and his defense, and it influenced the jury's verdict. We disagree. Assuming, arguendo, that the issue of whether Adams believed that Savannah was 14 years old was disputed,⁸ the trial court's comment to the juror did not “express or intimate [its] opinion as to what has or has not been proved.” ⁹ Thus, the trial court's comment did not violate OCGA § 17–8–57, and this argument presents no basis for reversal.

(b) Adams also contends that the trial court violated OCGA § 17–8–57 during defense counsel's cross-examination of Still regarding Adams's representation to her that he lived in Florida when he actually lived in Stone Mountain. Defense counsel asserted that Still stated in her warrant for Count 8 that Adams “knowingly and wilfully falsifie[d], conceal[ed] or cover[ed] up by any trick, scheme, or device a material fact, [or] ma[de] a false, fictitious, or fraudulent statement or representation.” Counsel then asked Still if Adams's statement that he lived in Florida “was ... a material fact?” The trial court then asked trial counsel:

[D]o you want me to charge the jury as to the entirety of that charge or as indicted? Your client is only indicted with one small sliver of such. Your questioning of her lays out the entirety of the statute. I just want to know that because I'm drawing these jury charges here.... I can charge them on every possible function and permutation of the law, but all I've charged is what the State has indicted him for, which is that one thing, a false statement in the criminal investigation. I have limited it to that effect so he can't be indicted or convicted for something he may or may not have been charged with.

Defense counsel responded that he intended to ask Still “if that was a material fact in the investigation.” The Court then stated: “Okay. Then I'm going to enlarge that possibility, if you insist on asking her that, so that the jury can consider what he did.”

Adams argues on appeal that the trial court's statement “improperly expressed an opinion as to what had been proved and a disputed issue of fact.” Again, we disagree.

“OCGA § 16–10–20 provides three ways in which the crime of giving a false statement may be committed: (1) by falsifying or concealing a material fact; (2) by making a false statement or representation; or (3) by knowingly making or using a false writing.” ¹⁰ In the indictment, the State charged that Adams “did knowingly and willfully make a false statement,” not that he concealed or falsified a material fact. Thus, the trial court was attempting to explain to defense counsel that he was expanding the indictment by asking Still about a separate manner of violating the statute and that if counsel insisted on doing so, the court would enlarge the jury charges and admit any evidence to support that manner of committing the crime.

“The trial court's comments were limited in scope to directing defense counsel and did not involve [Adams's] guilt or innocence.” ¹¹ The Supreme Court has held that OCGA § 17–8–57 “does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” ¹² In addition, “remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” ¹³

Contrary to [Adams's] arguments, the complained of comments by the trial court demonstrate [an] authorized attempt[ ] to control the conduct of...