Fincher v. The State

• Decision Date: 11 March 2022
• Docket Number: A21A1807
• Parties: FINCHER v. THE STATE.
• Court: Georgia Court of Appeals

870 S.E.2d 833

FINCHER

v.THE STATE.

A21A1807

Court of Appeals of Georgia.

March 11, 2022

Reconsideration Denied March 25, 2022

Matthew Shelton Nestrud, for Appellant.

Robert William Mooradian, John Herbert Cranford Jr., Newnan, for Appellee.

Hodges, Judge.

A jury convicted Teddy Lee Fincher of three counts of aggravated assault, two counts each of aggravated stalking and false imprisonment, and one count each of burglary, cruelty to children in the third degree, criminal trespass, influencing a witness, and battery. The trial court denied Fincher's motion for new trial, and he now appeals, contending that he was excluded from a critical portion of the proceedings against him, that several pieces of evidence were improperly admitted, that the trial court erred in denying his motion for directed verdict as to one of his aggravated stalking charges, that evidence of venue concerning one of the counts of aggravated stalking was insufficient, that the judge made an improper commentary on the evidence during the jury charge, and that he received ineffective assistance of trial counsel. We agree with Fincher and the State that one of Fincher's aggravated stalking convictions should be vacated, and thus we reverse the denial of his motion for new trial as to that conviction and remand this case with direction. As to the remainder of the trial court's order on the motion for new trial, we find no error and we affirm.

"On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation and punctuation omitted.) Poteet v. State , 358 Ga. App. 82, 853 S.E.2d 671 (2021).

So viewed, the evidence showed that Fincher was a drug dealer and addict. He had relationships with several drug addicted young women for whom he would provide pills, including A. B. and L. A. He would provide drugs to the women, and then punish them by withholding the drugs from them until they got sick.

A. B. and Family

One night, A. B. retrieved several "Roxies"¹ which were intended for both her and Fincher. She was unable to bring them to Fincher's house that night, and he became enraged. Fincher then drove to A. B.’s home, which was a trailer located on property owned by her parents, and banged on the trailer. In response, A. B. locked the doors, so Fincher used a crowbar or similar tool to gain entry to the residence. Fincher threatened A. B. with the crowbar, cursed at her, and snorted one of the pills she obtained for him that night. A. B.’s mother, J. B., and her stepfather heard Fincher arrive on the property, and they went over to A. B.’s trailer. There they found the door to the trailer busted and Fincher threatening A. B. Fincher then lunged with the crowbar at J. B. until A. B. intervened between the two of them. As this was happening, J. B.’s minor child was awake in the bedroom of the trailer and could hear what was happening. J. B.’s stepfather arrived at the trailer with a shotgun and was eventually able to convince Fincher to leave.

As a result of this incident, Fincher was arrested and a condition of his bond was to have no contact with A. B., whose family sent her to rehab. When A. B. wanted to leave rehab early, her family refused to pick her up. A. B. called Fincher, who picked her up, gave her drugs, and brought A. B. back to his house. While she was at his house, Fincher locked A. B. in a bedroom and handcuffed her to the bed. Against her wishes, Fincher injected A. B. with drugs, which she believed to be Roxies. These injections made her sick.

Also while at his house, Fincher told A. B. to call the district attorney to have her charges against him dropped. He offered her pills in exchange for this call, and also threatened her. When Fincher handcuffed her to the bed, he told her that she was not going to take his freedom, or else he would take hers. He threatened her family as well. A. B. called the district attorney's office from Fincher's phone to state that she wanted to drop the charges.

Eventually, A. B. concocted a plot to leave by asking Fincher to take her to a girlfriend's house to get a laptop to use for online classes. In actuality, A. B. had Fincher bring her to a former boyfriend's house to ask for his help escaping her situation. Fincher called this man multiple times trying to get in touch with A. B. During these calls Fincher threatened the man and also told him to tell A. B. to stay out of Bowdon, Georgia or she would be killed. A. B. was aware of these calls and they scared her. After leaving Fincher's residence, A. B. followed through with her request that the charges be dropped by filling out paperwork because she was scared of Fincher.

L. A.

L. A. is a young woman who met Fincher because her ex-boyfriend was also a drug dealer. She and Fincher would use drugs together. At one point in their relationship, Fincher bonded L. A. out of jail using his property as collateral, and in exchange had her sign the title of her car over to him. He never returned the title to her. Upon her release from jail, L. A. lived at Fincher's house and did not feel free to leave. Fincher injected her with drugs. One time, L. A. obtained pills and did not provide any for Fincher, which angered him. He pushed her down and kicked her in the chest. Sometimes Fincher would handcuff L. A. to the bed for hours, which could require her to urinate on herself. Eventually she called her mother to come pick her up because she was so scared of Fincher.

Fincher was convicted by a jury of the following charges: (1) burglary of A. B.’s home; (2) aggravated assault of A. B. for brandishing the crowbar at A. B.; (3) aggravated assault of J. B. for brandishing the crowbar at J. B.; (4) cruelty to children in the third degree for committing aggravated assault on J. B. knowing that A. B.’s minor son was present; (5) criminal trespass for damaging the trailer owned by A. B.’s stepfather; (6) aggravated stalking for violating a condition of his pretrial release by contacting A. B. "at or about [Fincher's] residence without the consent of [A. B.] for the purpose of harassing and intimidating [A. B.]"; (7) aggravated stalking for violating a condition of his pretrial release by contacting A. B. via telephone; (8) influencing a witness for deterring A. B. from testifying against him; (9) false imprisonment of A. B.; (10) aggravated assault of A. B. for injecting A. B. with a controlled substance; (11) false imprisonment of L. A.; and (12) battery of L. A. for kicking her. The trial court denied his motion for new trial, and Fincher now appeals.

1. Fincher contends that his right to be present at all critical stages of the proceedings against him was violated when he was excluded from a bench conference concerning prospective jurors. We find that Fincher has demonstrated no error.

"[T]he Georgia Constitution guarantees [a] criminal defendant[ ] the right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court." (Citation and punctuation omitted.) Zamora v. State , 291 Ga. 512, 517-518 (7) (b), 731 S.E.2d 658 (2012). Moreover, "proceedings at which the jury composition is selected or changed are critical stages at which the defendant is entitled to be present." (Citation and punctuation omitted.) Id. at 518 (7) (b), 731 S.E.2d 658. A defendant "bears the burden of showing that he was denied the right to be present at bench conferences[.]" Gillespie v. State , 333 Ga. App. 565, 572 (2) (a), 774 S.E.2d 255 (2015). "[D]enial of the right to be present guaranteed by the Georgia Constitution is not subject to harmless error review on direct appeal. Instead, a violation is presumed to be prejudicial." (Citations omitted.) Smith v. State , 284 Ga. 599, 609 (4), 669 S.E.2d 98 (2008).

Here, a bench conference was conducted during the voir dire process. At that bench conference the prosecutor stated to the trial court: "There were two others that we agreed on that were for cause to come off. Number four and number seven. She said that she couldn't be fair and impartial, and that is Ms. [R]." The trial court responded to this statement with "Okay," and then the bench conference ended. One more question was asked of the jury panel, and then the trial court stated "let the record reflect that the Defendant has been present for all of the voir dire process." No objection was made to this assertion.

The record does not reflect whether Fincher approached the bench with his counsel, but at the motion for new trial hearing, Fincher testified that he did not approach and that he did not tell his counsel that he did not want to be present for the bench conference.² It is undisputed that he was in the courtroom at the time of this bench conference. Notably, however, Fincher provided no testimony that he could not see and hear the substance of the bench conference from his place in the courtroom. For this reason, Fincher has failed to meet his burden, and this enumeration provides no basis for reversal. Alvarado v. State , 360 Ga. App. 113, 119 (2) (c), 860 S.E.2d 886 (2021) ("Because Alvarado has presented no evidence to meet his burden of showing that he was denied the right to be present in the sense that he could not see, hear, and participate, he has failed to meet his initial burden, and we will not reverse on this basis").

2. Fincher contends that the trial court erred in admitting other acts evidence to show motive and intent as to his three charges for aggravated assault and the battery charge. We find no reversible error.

Pursuant to OCGA § 24-4-404 (b) ("Rule 404 (b)")

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. For

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