Bully v. State

• Decision Date: 28 October 2020
• Docket Number: A20A0882
• Citation: 849 S.E.2d 271,357 Ga.App. 663
• Court: Georgia Court of Appeals
• Parties: BULLY v. STATE.

357 Ga.App. 663

849 S.E.2d 271

BULLY

v.STATE.

A20A0882

Court of Appeals of Georgia.

October 28, 2020

Reconsideration Denied November 10, 2020

Certiorari Denied June 1, 2021

Reconsideration of Denial of Certiorari Denied July 1, 2021

Clifford Louis Kurlander, for Appellant.

Benjamin Bruce Kenemer, Herbert McIntosh Poston Jr., for Appellee.

Rickman, Judge.

Following the denial of his motion for new trial, Jeffery Bully appeals his convictions on multiple counts of rape and other crimes, including five counts of sexual assault on a probationer by an agent of a probation office under former OCGA § 16-6-5.1 (b) (2). On appeal, Bully raises several enumerations of error, including that the evidence was insufficient to show that he was the agent of a probation office for purposes of OCGA § 16-6-5.1 (b) (2), that the evidence was insufficient to support two specific convictions of rape, that the trial court erred in taking certain safety measures and in a jury charge, and that his trial counsel provided ineffective assistance. For the reasons that follow, we reverse the convictions of sexual assault on a probationer, affirm the remaining convictions, vacate the sentence, and remand this case for resentencing.

"On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." (Citation and punctuation omitted.) Maddox v. State , 346 Ga. App. 674, 675, 816 S.E.2d 796 (2018).

So construed, the evidence shows that in 2014, Bully owned and operated Rise Above Recovery (hereinafter "RAR"), an in-patient drug rehabilitation facility.¹ Criminal defendants, particularly those convicted of drug crimes, are often required to complete a drug rehabilitation program as a condition of probation, and RAR provided such program. RAR was not accredited by an industry association, and was not otherwise licensed by the State to provide such services.²

Bully routinely made sexual advances towards women in the RAR program, including probationers. He repeatedly threatened to expel or report probation violations on female probationers unless the probationer agreed to engage in sexual activities with him. For those probationers who agreed to have sexual relations with him, he would often reduce account charges³ or offer some other financial exchange. Eventually some of the probationers spoke out and an investigation led to charges against Bully for crimes against seven victims.

One of the victims, M. T., testified that while participating in the RAR program under a court order, Bully raped her in the woods near his house. She testified that she did not scream out because she knew Bully had the power to send her back to jail. M. T. had reported to another RAR client that Bully held her down and forced her have sex. DNA testing confirmed that Bully had engaged in sexual intercourse with M. T. Bully was convicted of rape and sexual assault of a probationer for his acts involving M. T.

The second victim, A. D., testified that while participating in the RAR program under a court order, Bully sexually harassed her and had sex with her against her will. Bully was convicted of sexual assault of a probationer for his acts involving A. D.⁴

Bully's third victim, M. F., testified that while participating in the RAR program under a court order, Bully forced her to give him oral sex against her will upon threat of not being allowed leave to visit her children and, on a separate occasion, forced her to have sex with him. She told others that Bully had sexually assaulted her upon a threat of going back to jail. Bully was convicted of rape, aggravated sodomy, and sexual assault of a probationer for his conduct involving M. F.

Bully's fourth victim, R. W., testified that while participating in the RAR program under a court order, Bully offered to reduce her program fees if she agreed to perform sexual favors for him, threatened to discharge her from the program if she refused to perform oral sex, and made unwanted sexual contact with her by slapping her on the butt on multiple occasions. Bully was convicted of sexual battery and sexual assault of a probationer for his conduct involving R. W. Bully's fifth victim, S. R. L., testified that while participating in the RAR program under a court order, Bully twice forced her to have sex with him over her protests. Bully was convicted of rape and sexual assault of a probationer for his conduct involving S. R. L.⁵

At trial, the State introduced six witnesses pursuant to OCGA § 24-4-413 ("Rule 413") to testify about similar sexual assaults by Bully. The State also offered the testimony of multiple probation officers from various jurisdictions who were assigned to supervise one or more of the victims under the above-referenced court orders.

Bully testified in his own defense and admitted having sexual intercourse with M. T. and A. D. but claimed the contact was consensual.

In sum, Bully was convicted on five counts of sexual assault of a probationer, three counts of rape, one count of aggravated sodomy, and one count of sexual battery; the convictions involved five victims. Following the denial of his motion for new trial, Bully appeals.

1. Bully first contends the evidence was insufficient to convict him on the five counts of sexual assault on a probationer under the version of OCGA § 16-6-5.1 (b) (2) in effect at the time of the underlying events. See Ga. L. 2010, p. 168, § 2.⁶ Specifically, he argues that the evidence was insufficient to establish that he was an employee or agent of any probation or parole office. We agree.

When evaluating the sufficiency of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt." (Citation and emphasis omitted.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.E2d 560 (1979).

Under former OCGA § 16-6-5.1 (b) (2), sexual contact with a probationer by employees or agents of probation or parole offices was forbidden:

A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person ... [i]s an employee or agent of any probation or parole office and engages in sexual contact with such other individual who the actor knew or should have known is a probationer or parolee under the supervision of the same probation or parole office.

(Emphasis supplied.)⁷ There is no evidence that Bully was an employee of a probation office. Accordingly, the State was required to show that Bully was the agent of a probation office.

Georgia law provides that "[t]he relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf." OCGA § 10-6-1 ; see also Hutchens v. State , 174 Ga. App. 507, 508 (1), 330 S.E.2d 436 (1985) (applying OCGA § 10-6-1 in a criminal case).⁸ "Agency can be either express or implied and can arise from, or be inferred from, any of a number of circumstances." Hutchens , 174 Ga. App. at 508 (1), 330 S.E.2d 436. "The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties." (Citation and punctuation omitted.) Collins v. Martin , 157 Ga. App. 45, 46 (2), 276 S.E.2d 102 (1981). An agent is authorized to act for another "when, expressly or impliedly, there has been a delegation with more or less discretionary power to act, to manage an affair, and to render an account." (Citations omitted.) Headrick v. Fordham , 154 Ga. App. 415, 417 (1), 268 S.E.2d 753 (1980). Finally, when construing what constitutes an agent under OCGA § 16-6-5.1 (b) (2), we note that "[c]riminal statutes are construed strictly against the State, they must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations." (Citation omitted.) Perkins v. State , 277 Ga. 323, 325-326 (2), 588 S.E.2d 719 (2003).

Here, the record evidence establishes that there was no agency relationship between RAR and/or Bully and any probation office. The record is devoid of evidence of a written or oral agreement between RAR and/or Bully and any probation office or any state agency; devoid of evidence that any probation office ever expressly requested that RAR and/or Bully perform a service or function on its behalf; devoid of evidence that RAR and/or Bully operated according to any state-issued guidelines; and devoid of evidence that any probation office gave direction or instruction to RAR and/or Bully in any way as to how to run the drug rehabilitation program, treat the probationers, or determine when a probation violation had occurred. Rather, the only relevant evidence showed the opposite. A probation officer who supervised two of the probationers at RAR testified that she had never visited RAR, never communicated with Bully, and never instructed RAR and/or Bully as to any expectations of them on behalf of the probation office. None of the other probation officers testified to the contrary. Thus, the State failed to present any evidence that RAR and/or Bully were authorized to act as an agent for any probation office. See Atlanta Market Center Mgmt., Co. v. McLane , 269 Ga. 604, 606 (1) (a), 503 S.E.2d 278 (1998) (no agency relationship where no evidence was presented that purported agent was authorized to act on principal's behalf).

In support of its position that Bully was an agent of a probation office subject to OCGA § 16-6-5.1 (b) (2), the State relied on the fact the probation offices received reports from RAR about the status of its probationers in the program, and their compliance with the RAR recovery program.⁹ The probation officers testified that they relied on and trusted...