Carlton v. State
| Decision Date | 29 June 2020 |
| Docket Number | A20A0327 |
| Citation | 356 Ga.App. 1,846 S.E.2d 175 |
| Parties | CARLTON v. The STATE. |
| Court | Georgia Court of Appeals |
Jennifer Snyder Adams, for Appellant.
Donald R. Donovan, Douglasville, Anthony Brett Williams, Matthew Wayne Rollins, for Appellee.
Following a jury trial at which he acted pro se, Lewis Alan Carlton was convicted on six counts of criminal attempt to commit the felony of aggravated stalking. Following the denial of his motion for new trial, Carlton appeals. He urges that the evidence was insufficient to sustain the verdict. He also contends that the trial court erred by denying his general demurrer, by allowing bad character evidence at trial, and by ruling against Carlton's use of certain records from the Department of Family and Children Services (DFACS). We hold that the court erred by allowing the bad character evidence and that the error was not harmless. We therefore reverse and remand.
Construed in favor of the verdict, see Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979), the evidence presented at trial shows that when he was approximately 44 years old, Carlton met N. S., who was age 15 or 16 at the time. The couple lived together for the ensuing four or five years and had three children who were the subject of a deprivation proceeding that began in 2008, and a proceeding for the termination of his parental rights that began in 2012. Both the deprivation proceeding and the termination proceeding continued through 2014, when Carlton's parental rights were terminated (the "Termination Order").
Meanwhile, in November 2008, during the deprivation proceeding, the Juvenile Court of Cobb County entered an order in which it found the two older children deprived and further ruled that Carlton have "no visitation nor contact with the children unless he petitions this court in the future for such visitation and contact[,] and this court grants such relief" (the "Deprivation Order").1 In March 2011, the children were placed with foster parents who eventually adopted the children. Later, the juvenile court denied various requests by Carlton to modify any pending orders prohibiting his visitation with the children.
Then in October 2012, in the Superior Court of Cobb County, Carlton pled guilty pursuant to a negotiated plea agreement to three counts (Count Nos. 4, 6, and 7) of impersonation of a public employee, a DFACS worker. The conviction stemmed from Carlton having called the foster family's neighbor posing as a DFACS employee in an attempt to glean information about his children during their placement with the foster family; in the call, he suggested that the children had been abused in the foster home. The court sentenced Carlton on Count 4 to five years to serve and separately on Count 6 and 7 to ten years, one to serve, consecutive to Count 4, with the remainder on probation (the "Criminal Sentence"). On the signed sentencing form for Count 4, the trial court marked out all general and special conditions of probation. On the separate sentencing forms for Counts 6 and 7, the court set forth general and special conditions of probation, including, as shown on "Addendum A," that Carlton "shall have no contact with his children unless an order from Cobb County Juvenile Court allows it."
Thereafter, Carlton sent two items of correspondence to his children that led to the current charges. In early 2014, Carlton sent a postcard from prison addressed to all three children at the address of their foster parents. Two months later, Carlton sent a letter addressed in the same manner. When the foster mother received the postcard and the letter, she called the police; the children never saw the two items.
The foster mother testified that during the time that the children had been in her care, Carlton was not allowed to have physical contact with the children or to send correspondence. She explained that "from the very first time we got the kids, we were told that he had a no-contact order."
The mother and father also testified to other instances of Carlton's behavior, including that Carlton attempted to watch the foster family from bushes in a park, drove through their neighborhood, called the foster father on his cell phone, and sent gifts to the children that included messages for the children secreted in the packaging or written on the gifts themselves, including his own phone number.
Carlton was indicted on six counts of criminal attempt to commit aggravated stalking under OCGA § 16-5-91 (a), three counts for sending the postcard (one for each of his three children), and three more counts for sending the letter. In the indictment, the State averred that Carlton took a substantial step toward the crime by sending his children the postcard and letter in violation of "Cobb County Superior Court Case Number 12-9-3781-49," which is the criminal case that resulted in the Sentencing Order, and "Cobb County Juvenile Court Case Number 12-CV-5159-04," which is the termination proceeding that led to the Termination Order.
On the third day of the jury trial, Carlton filed a written general demurrer and raised the issue orally. The court denied Carlton's request.
Following trial, Carlton was found guilty on the six counts related to the postcard and the letter.2 He was sentenced to 30 years confinement, five years to serve for each count, to run consecutively to each other, with the entire sentence to run consecutively to his then-current incarceration. Following the denial of his motion for new trial, Carlton appeals.
1. Carlton first contends that the trial court erred by denying his general demurrer alleging a fatal defect in the indictment. Appellate courts review the trial court's ruling on this issue de novo to determine whether the allegations in the indictment are legally sufficient. See State v. Cohen , 302 Ga. 616, 618 (1), 807 S.E.2d 861 (2017).
"[A] general demurrer challenges the substance of the indictment and asserts that the indictment is fatally defective and incapable of supporting a conviction." (Citation, punctuation, and emphasis omitted.) Williams v. State , 307 Ga. 778, 782 (2) n.6, 838 S.E.2d 235 (2020). "If a defendant can admit each and every fact alleged in the indictment and still be innocent of any crime, the charge is subject to a general demurrer." State v. Heath , ––– Ga. ––––, 43 S.E.2d 801 (Case No. S19G0967, decided June 1, 2020).
Carlton contends that the court erred because the indictment fails to set forth a specific order prohibiting him from contacting the children; violation of a court order then in effect is an element of the crime of aggravated stalking. See OCGA § 16-5-91 (a).3
Carlton argues that the two cases identified in the indictment do not include orders that prohibited him from contacting his children that were in effect at the time that he sent the postcard and letter. This argument requires looking beyond the face of the indictment. And "[a]s a general matter, a demurrer (whether general or special) must allege some flaw on the face of the indictment itself; a demurrer ordinarily cannot rely on extrinsic facts that are not alleged in the indictment." State v. Williams , 306 Ga. 50, 53 (2), 829 S.E.2d 117 (2019) ().
We find no error on the face of the indictment. Somewhat inartfully, the indictment set out that Carlton's postcard and letter violated OCGA § 16-5-91 (a) in that he sent the postcard and letter in violation of two entire cases. Thus, Carlton was on reasonable notice of the crime charged — aggravated stalking — and the manner in which it was committed — sending the postcard and letter in violation of a court order that could be contained in one of the cases listed. See generally Miller v. State , 305 Ga. 276, 281 (3), 824 S.E.2d 342 (2019) ; State v. Holmes , 142 Ga. App. 847, 848, 237 S.E.2d 406 (1977) ().
2. Carlton's challenge to the sufficiency of the evidence is without merit.
"The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt." (Citation and punctuation omitted.) Davis v. State , 330 Ga. App. 118, 122 (2), 766 S.E.2d 566 (2014). On appeal, "we do not weigh the evidence or determine witness credibility, but instead construe the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the verdict." Hinton v. State , 319 Ga. App. 673, 675, 738 S.E.2d 120 (2013).
(a) Carlton first contends, in essence, that there was a fatal variance between the indictment and the proof at trial because the State did not introduce such evidence of a no-contact order from either of the two cases listed in the indictment that was in effect at the time he sent the postcard and letter. It is true that the State failed to introduce a no-contact order from either of the two cases listed in the indictment, but the State showed that Carlton violated the no-contact provision found in the Deprivation Order, which was sufficient under the law.
Carlton was charged with a violation of OCGA § 16-5-91 (a), which requires proof that the defendant stalked the victim in violation of a court order then "in effect." See also Ward v. State , 351 Ga. App. 490, 495-496, 831 S.E.2d 199 (2019) (physical precedent only). The indictment alleges that Carlton attempted to stalk his children in violation of his criminal case and the termination proceeding, not specific orders. The only evidence introduced from those two cases was the Criminal Sentence and the Termination Order. In the Criminal Sentence, the no-contact order pertained only to Counts 6 and 7, which he was...
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