Harvill v. State, A08A2019.

Decision Date05 March 2009
Docket NumberNo. A08A2019.,A08A2019.
Citation674 S.E.2d 659,296 Ga. App. 453
PartiesHARVILL v. The STATE.
CourtGeorgia Court of Appeals

Michael J. Moore, Warner Robins, for appellant.

Kelly R. Burke, District Attorney, Jason E. Ashford, Joshua D. Morrison, Assistant District Attorneys, for appellee.

ADAMS, Judge.

William Harvill was tried and convicted of making false statements, insurance fraud, and stalking. Harvill thereafter retained new counsel who moved for a new trial. Following a hearing, the court denied the motion. On appeal, Harvill contends that the evidence was insufficient with regard to stalking, that the trial court abused its discretion by failing to appoint counsel or grant retained counsel a continuance, and that his trial counsel was ineffective in three regards.

Construed in favor of the verdict, the evidence shows that the Gaudet family, including then-teenage daughter Angelina ("Angie"), lived next door to Harvill's mother-in-law. Harvill, who was in his sixties at the time, and his wife lived a half mile away. Barbara Gaudet and Harvill's wife were friends and the two families had socialized in each other's homes. The Harvills even had a key to the Gaudet house.

In the fall of 2004, when Angie was 14 or 15 years old, she rode the bus home and regularly arrived about a half hour before her parents. During this time when she was alone, she received several calls from a man who would say "nasty things," including suggesting that she and a friend come over to do sexual favors for him. She told her parents that she thought it sounded like Harvill. The Gaudets contacted the police, and telephone records showed that the calls had been placed from Harvill's home number. The Gaudets chose not to press charges. Detective Curnutte, who investigated this incident, advised Harvill to not have any contact with the Gaudet family.

In the summer of 2005, Harvill left messages on another family's answering machine. In the messages, Harvill stated that Angie and a friend spent time with the family's son and that they had sexually transmitted diseases. Angie's mother listened to the message and identified Harvill as the caller, as did an officer who subsequently became familiar with Harvill's voice. Curnutte investigated this incident as well, and he advised Harvill that his contact with the Gaudet family "needed to stop."

No warrants were issued in connection with either of the above incidents. Testimony about the two events was introduced as prior difficulties between the parties, and the court gave a limiting instruction to that effect.

Next, on October 13, 2005, Harvill approached the manager of the grocery store where Angie worked as a cashier and reported that, on the previous evening, and in response to his complaints about her service at the store, Angie had offered sexual favors and a discount on groceries. The victim was not at work at the time Harvill spoke to the manager, but when she arrived, the manager told her what Harvill had said. Angie began to cry and asked for her mother, who was called and came to the store. Angie denied the allegations and denied having any sexual contact with Harvill or even talking about anything sexual with him.

On October 21, 2005, Harvill reported to police that he discovered damage to the driver's side front bumper of his car in what apparently had been a hit-and-run accident on October 18. He claimed that the collision had occurred at the grocery store, the same one where the victim worked, at a time when he was not in his car. Officer Burns observed damage and red paint residue on the car and took a report.

On October 23, Harvill, who had apparently been arrested in connection with the October 13 incident and the previous harassing phone calls, was released on a conditional bond, in which he agreed to "stay away, absolutely, directly or indirectly, by person and telephone, from the person, home, and job of: Angelina (Angie) Gaudet and Family."

The next day, Harvill called the police to complain that the date and time on the accident report was incorrect; he said the accident actually occurred on October 19. On the 25th, Officer Hale responded to the call and met with Harvill at his home to get additional information about the accident. While there, Hale observed the damage to the car and the red paint, and took photographs. Harvill also told Hale that an anonymous caller told him that he had seen the accident and recorded the license tag number. The officer ran the tag and it turned out to be Angie's car. Hale then contacted the Gaudets, saw the girl's red car, and saw scraping damage on the right rear of the car. Hale testified that the red paint on Harvill's car and the red color of Angie's car appeared "almost alike." Angie was unaware of the damage on her car, and she denied ever having a wreck or hitting Harvill's car.

Within a day or so, Detective Curnutte met with Hale and spoke to him about the car accident case. He did not tell Hale about the 2004 or July 2005 incidents, but, apparently knowing that Hale planned to speak with Harvill again, Curnutte asked Hale to record the conversation and obtain a written statement as well.

Hale returned on the 28th and had a second conversation with Harvill. He secretly recorded the conversation with a wireless microphone that he wore as a motorcycle cop. Hale did not read Harvill his Miranda rights. The tape recording of the conversation was played for the jury. In that conversation, Harvill mentioned that officers had previously talked to him about warrants for his arrest related to allegations of telephone harassment and stalking, which he denied. He then claimed the hit-and-run had occurred either on the 19th or the 15th. He mentioned that his insurance company had pictures. At Hale's request, Harvill also wrote out a statement. In the statement, Harvill related that the anonymous caller also explained that he had contacted the police on the 20th. Harvill filed an insurance claim about the accident on October 28, 2005.

Curnutte checked the recorded historical tapes of calls to the police department and found the described October 20 call. He determined that the call originated from a convenience store pay phone located within walking distance of Harvill's home. And at trial, based on his subsequent knowledge of Harvill's voice from speaking to him during the course of the investigation, Curnutte identified the caller as Harvill.

Harvill was indicted on three counts: Count 1 — making a false statement to police about the anonymous caller; Count 2 — insurance fraud; and Count 3 — aggravated stalking, in which it was alleged that he

on or about October 25, 2005, did unlawfully and without authority follow and surveil the person of Angelina Gaudet, by going to her work place and after confirming she was at work did make the false claim that she had hit his car in the parking lot and left the scene of the accident, without said victim's consent, and with the intent to harass and intimidate said victim, after having been previously ordered not to have similar contact with said victim pursuant to a conditional bond issued . . . on October 23, 2005. . . .

He was convicted on Counts 1 and 2 and on the lesser included offense of stalking on Count 3.

1. Harvill contends the evidence was insufficient to support the conviction of stalking. He also contends that trial counsel was ineffective for failing to move for a directed verdict on aggravated stalking, for consenting to a charge on stalking, and for failing to request a charge on entrapment.

(a) On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence submitted below and does not weigh the evidence or assess the credibility of the witnesses. Brown v. State, 265 Ga.App. 613, 594 S.E.2d 770 (2004). To sustain a conviction, the evidence must be sufficient to enable a rational trier of fact to find the appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A person commits the offense of stalking

when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

OCGA § 16-5-90(a)(1). "[C]ontact" is defined as "any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device. . . ." (Emphasis supplied.) Id. This definition is broad enough to include intentionally sending a message to another person by telling a third party who would be reasonably expected to convey the message to the victim. The jury was authorized to find that Harvill contacted the store manager and the police in connection with the alleged hit-and-run in order to intentionally send a message to Angie. Plus, plenty of evidence was submitted to show that Harvill did so with the intent to harass or intimidate Angie by doing so. The evidence was sufficient to support the conviction of stalking.

(b) Harvill contends uncontroverted evidence showed that he could not have been convicted of aggravated stalking as charged in the indictment, and that therefore, trial counsel should have moved for a directed verdict and refused a charge on stalking as a lesser...

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5 cases
  • Oliver v. State, A22A0254
    • United States
    • Georgia Court of Appeals
    • 29 June 2022
    ... ... sending a message to another person by telling a third party who would be reasonably expected to convey the message to the victim." Harvill v. State , 296 Ga. App. 453, 456 (1) (a), 674 S.E.2d 659 (2009). Oliver argues that the intended recipient of his message was his daughter, not the ... ...
  • Oliver v. State
    • United States
    • Georgia Court of Appeals
    • 29 June 2022
    ... ... sending a message to another person by telling a third party who would be reasonably expected to convey the message to the victim." Harvill v. State , 296 Ga. App. 453, 456 (1) (a), 674 S.E.2d 659 (2009). Oliver argues that the intended recipient of his message was his daughter, not the ... ...
  • Bolton v. the State.
    • United States
    • Georgia Court of Appeals
    • 13 July 2011
    ... ... Consequently, counsel's failure to request a jury charge on entrapment was not deficient performance of counsel. See Harvill v. State, 296 Ga.App. 453, 456457(1)(c), 674 S.E.2d 659 (2009).Judgment affirmed.ELLINGTON, C.J., and DOYLE, J., concur.--------Notes:1. When the ... ...
  • Louisyr v. the State.
    • United States
    • Georgia Court of Appeals
    • 4 February 2011
    ... ... State, 260 Ga.App. 413, 414417(1), 579 S.E.2d 809 (2003).8. Owen v. Watts, 307 Ga.App. 493, 498(2), 705 S.E.2d 852 (2010).9. Harvill v. State, 296 Ga.App. 453, 456(1)(a), 674 S.E.2d 659 (2009).10. Nor is there any evidence that a jury instruction was requested on the definition of ... ...
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