Keaton v. the State.

• Decision Date: 14 July 2011
• Docket Number: No. A11A0566.,A11A0566.
• Citation: 311 Ga.App. 14,11 FCDR 2545,714 S.E.2d 693
• Parties: KEATONv.The STATE.
• Court: Georgia Court of Appeals

311 Ga.App. 14

714 S.E.2d 693

11 FCDR 2545

KEATON

v.The STATE.

No. A11A0566.

Court of Appeals of Georgia.

July 14, 2011.

McGee & McGee, James Baker McGee III, Waycross, for appellant.Richard Ernest Currie, Dist. Atty., Michelle Chapman McIntire, Asst. Dist. Atty., for appellee.

ADAMS, Judge.

Corey Keaton appeals the trial court's denial of his motion for new trial following his conviction on charges of rape, aggravated assault, burglary, aggravated stalking and kidnapping in connection with an incident involving his estranged wife.¹ For the reasons set forth below, we reverse Keaton's aggravated stalking conviction, but otherwise affirm.

Viewed in the light most favorable to the verdict, the evidence showed that Keaton was employed as a police officer with the Waycross Police Department. The victim filed for divorce from Keaton in April 1998, and a rule nisi issued at that time forbidding Keaton from having any contact with her “[p]ending the interlocutory hearing.” The subsequent interlocutory order did not enjoin Keaton from having contact with the victim, but enjoined him from going to the marital residence except to retrieve or return the children for visitation. The record supports a finding that Keaton violated this order on a number of occasions, including one occasion when he entered the victim's house without her permission and demanded sex. After the victim reported this and other violations to police, Keaton's supervisor at the Waycross Police Department issued a written order on May 29, 1998, directing him to obey the trial court's April 1998 order or risk a charge of insubordination under department regulations.

On September 12, 1998, the victim was home alone, when Keaton knocked on her door and asked to come inside. The victim refused. She said that Keaton then disabled the phone and entered the house through a back window. The victim said that when she tried to run away, Keaton attacked her and a protracted struggle ensued during which he raped her. After Keaton left, the victim reported the attack to the Ware County Sheriff's office.

Several witnesses testified in Keaton's defense that the victim and he were attempting to reconcile prior to the incident. And Keaton testified that the victim and he had sex on various occasions after they separated and that he previously had spent the night at her house. He said that on the day at issue, the victim and he had consensual sex, but later began to quarrel, and the struggle ensued after the victim hit him with her shoe.

1. Keaton first asserts that the evidence was insufficient to support his conviction for aggravated stalking ² because the State failed to prove that his actions were in violation of an order contemplated by the aggravated stalking statute, OCGA § 16–5–91. He asserts the interim order relied upon by the prosecution was directed toward preserving the victim's right to occupy the marital residence and preventing his interference with that right, but it was not a personal protective order or an order otherwise preventing stalking behavior as required under the statute. We agree.

(a) A person commits the offense of aggravated stalking when he or she, in violation of an order, a peace bond, an injunction or a probation, parole or bond condition “ in effect prohibiting the behavior described in this subsection, 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.” (Emphasis supplied.) OCGA § 16–5–91(a). From the time of its enactment, this statute has consistently been interpreted as requiring that the underlying bond, order, injunction or probation, parole or bond condition prohibit stalking behavior. ³ See, e.g., Ochandarena, “ Crimes Against the Person: Prohibit Stalking of an Intended Victim,” 10 Ga. St. U. L. Rev. 95 (1993) ( “Aggravated stalking occurs when the [stalking conduct] occurs subsequent to a judicial order issued to prohibit stalking, such as a temporary restraining order or a condition of parole or probation.”) (footnote omitted). The dissent's analysis places undue emphasis upon the grammatical structure of the statute, while ignoring the legislative purpose behind it, to conclude otherwise.⁴ Moreover, the dissent's analysis has absolutely no support in the case law or commentary; no cases have drawn any distinction in how the orders in the list are considered under the aggravated stalking statute based upon grammatical placement or otherwise.⁵

Putting aside the orders clearly intended for personal protection, the dissent's analysis would define the crime of aggravated stalking to include the violation of any temporary restraining order, preliminary injunction, or permanent injunction, whatever the subject matter and regardless of any connection to the victim, if the other statutory elements are met; but conditions of pretrial release, probation or parole must prohibit stalking behavior in order to serve as the basis for an aggravated stalking conviction. Thus, if a defendant were enjoined from entering a property due to a labor dispute, for example, and crossed the subject property while engaged in stalking behavior, the dissent would find him guilty of aggravated stalking. But if he committed the same actions in violation of a probation condition unrelated to stalking behavior, he would not have committed aggravated stalking. We do not believe that the General Assembly intended such a result in enacting the crime of “aggravated stalking.” Rather, the statute more logically should be read as requiring a prohibition against stalking behavior in any of the underlying orders, injunctions, bonds or conditions listed in the statute.

b. The interim order relied upon by the State in this case provides, in pertinent part, that “the [victim] is awarded the exclusive use and possession of the marital home of the parties and [Keaton] is enjoined from going to the home except to exercise his visitation rights with the children of the parties.” This order keeps Keaton away from a place, not a person, but Georgia's stalking laws were drafted to protect people not places. The trial court previously had issued an order that prohibited “contact” with the victim, and that order in effect prohibited the behavior proscribed under the stalking laws, but it had expired. Although the interim order may have incidentally kept Keaton from face-to-face contact with the victim while she was at home, except for periods connected to visitation, it imposed no further limitations on Keaton's contact with the victim. So long as he did not physically go to the marital home, Keaton could call the victim at any time, could be anywhere near or in sight of the marital home, or could use any other method to harass and intimidate the victim inside the home or outside the home without violating the order. And significantly, Keaton would violate the order even if he went to the home when his wife was not there. We cannot say that an order that limits Keaton's presence at the marital home, but otherwise allows unfettered contact with the victim, “in effect” prohibits him from engaging in the behavior prohibited by the statute.

The dissent, however, construes the phrase “in effect” to encompass the violation of any order that happens to provide some incidental protection to a stalking victim, no matter how fleeting. Criminal statutes, however, must be strictly construed. Even if the dissent's analysis proposed a valid alternate interpretation of the phrase “in effect,” “[w]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.” (Punctuation and footnotes omitted; emphasis in original.) Jackson v. State, 309 Ga.App. 24, 28–29(1)(a), 709 S.E.2d 44 (2011). We apply a strict construction to hold that the order in this case, which merely prohibits the defendant's presence at a particular place, does not “in effect prohibit[ ] the behavior described in the subsection” as required by OCGA § 16–5–91(a). Accordingly, we find that the State failed to establish an essential element of the crime of aggravated stalking: the existence of a prior order that in effect proscribed stalking behavior. Keaton's conviction on that count, therefore, necessarily must be reversed.⁶ Compare Bray v. State, 294 Ga.App. 562, 562–563(1), 669 S.E.2d 509 (2008) (upholding aggravated stalking conviction where special bond condition required defendant to “ ‘stay away, absolutely, directly or indirectly’ ” from ex-wife); Ford v. State, 283 Ga.App. 460, 461(1), 641 S.E.2d 671 (2007) (same where temporary protective order “ ‘restrained and enjoined [defendant] from approaching within 100 yards of (his wife) ..., except during exercise of visitation.’ ”).

2. Keaton next argues that the trial court erred in denying his motion for a mistrial after the State improperly placed his character into issue during its rebuttal examination of the victim about a conversation in which Keaton's mother asked her to drop the charges against Keaton.⁷ The victim stated:

She told me that [Keaton] had [seen] his father do her like that on several occasions and that she understood what I was going through and that she was sorry for it. She told me—she asked me if I could, if any chance at all possible for me to drop the charges because she couldn't have another son of hers going to jail.At that point, Keaton's counsel moved for a mistrial on the ground that the prosecutor was trying to “impugn the integrity of the whole family”; the trial court denied the motion. Keaton argues on appeal that the trial court erroneously denied the mistrial because the State had introduced “improper evidence of the bad character of [his] father and brother.”

Assuming, without deciding, that...