Caldwell v. State

• Decision Date: 05 June 2014
• Docket Number: No. A14A1170.,A14A1170.
• Citation: 327 Ga.App. 471,758 S.E.2d 325
• Court: Georgia Court of Appeals
• Parties: CALDWELL v. THE STATE.

327 Ga.App. 471
758 S.E.2d 325

CALDWELL
v.
THE STATE.

No. A14A1170.

Court of Appeals of Georgia.

May 2, 2014.
Reconsideration Denied June 5, 2014.

[758 S.E.2d 326]

Steven Mitchell Harrison, for Appellant.

Timothy Grady Vaughn, Christopher Cary Gordon, for Appellee.

ELLINGTON, Presiding Judge.

The Superior Court of Dodge County revoked the probation of William Caldwell, who was under sentence for aggravated assault, OCGA § 16–5–21(a)(1) (with intent to rape). This Court granted Caldwell's petition for a discretionary appeal under OCGA § 5–6–35(a)(5). Caldwell appeals, contending, inter alia, that the trial court erred in finding that he violated his probation on the basis that he had sexually-oriented, sexually-stimulating images on his cellular phone. For the reasons explained below, we affirm.

[758 S.E.2d 327]

Under Georgia law, a trial court may revoke a probated sentence if “the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations [of the conditions of probation] alleged.” OCGA § 42–8–34.1(b). See also OCGA § 42–8–34.1(e) (violations of special conditions of probation). “This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” (Citation and punctuation omitted.) Gray v. State, 313 Ga.App. 470, 471, 722 S.E.2d 98 (2011). In terms of the sufficiency of the evidence, this court will affirm the judgment of revocation if the record includes some competent evidence to show that the defendant violated the terms of his probation in the specific manner charged, notice of which must be provided in writing before the probation revocation hearing. Wolcott v. State, 278 Ga. 664, 667(2), 604 S.E.2d 478 (2004); Bickel v. State, 323 Ga.App. 902, 903, 749 S.E.2d 1 (2013); Dillard v. State, 319 Ga.App. 299, 300, 735 S.E.2d 297 (2012). However, we review questions of law de novo. White v. State, 274 Ga.App. 805, 619 S.E.2d 333 (2005).

In this case, the record shows that the “sex offender” conditions of Caldwell's probation provided that, except as authorized by the court or his probation supervisor, he would not possess any type of photograph or digital imagery of “any minor” and that he would not possess “any sexually-oriented sexually-stimulating material, to include mail, computer or television.” The State notified Caldwell in writing that he was accused of violating those conditions by having images of minors and sexually-oriented images on his cell phone. At the probation revocation hearing, the State introduced evidence that Caldwell's probation supervisor performed a routine search of photographs stored in Caldwell's cell phone on September 16, 2013. In terms of sexually-oriented, sexually-stimulating material, the State offered six photographs: (1) an adult woman dressed in a short-sleeved top and shorts, with her midriff bare, pulling the waistband of the shorts down on one side to show the top of her underwear; (2) a head-and-shoulders view of a woman displaying ample cleavage; (3) a closeup in profile of a woman's hip area, clothed in bikini underwear or a swimsuit bottom, showing a bare midriff and partially bare buttock; (4) Caldwell from shoulders to knees, nude except that his genitals are concealed in a black thong; (5) Caldwell in profile before a shower curtain, with a bare midriff and wearing dark underwear, with his hand near his groin, where the silhouette suggests an erect penis; (6) Caldwell wearing white underwear, in a closeup of his groin with his fingers pulling the fabric tightly around the tip of his penis. The trial court found, inter alia, that Caldwell had possessed sexually-oriented material in violation of the conditions of his probation and revoked the balance of his probation.

1. Caldwell contends that the condition of his probation regarding sexually-oriented, sexually-stimulating material, which was incorporated in the judgment entered on August 8, 2000, is overbroad and unreasonably vague and is not reasonably related to the rehabilitative goals of probation. See Ellis v. State, 221 Ga.App. 103, 470 S.E.2d 495 (1996). Caldwell, however, has never filed a direct challenge to the validity of that judgment. See id. The only issues presented in the proceeding for revocation of probation were whether Caldwell received the required notice of the grounds for revocation and whether the State proved by a preponderance of the evidence that he violated the conditions of his...