Porter v. State

• Decision Date: 19 February 2021
• Docket Number: A20A1889
• Citation: 358 Ga.App. 442,855 S.E.2d 657
• Parties: PORTER v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 442

855 S.E.2d 657

PORTER

v.The STATE.

A20A1889

Court of Appeals of Georgia.

February 19, 2021

Frank M. Starosto, for Appellant.

Sharon Moyer Fox, Calhoun, Jana Willingham Allen Allen, Rosemary M. Greene, for Appellee.

Hodges, Judge.

Following a bench trial at which Jermaine Porter appeared pro se, the Superior Court of Bartow County entered a judgment of conviction against Porter for two counts of identity fraud ( OCGA § 16-9-121 ). Now represented by appointed counsel, Porter appeals from the trial court's denial of his motion for new trial as amended, arguing that: (1) the trial court violated his constitutional rights by requiring him to represent himself at trial without an unequivocal waiver of his right to counsel and by failing to conduct a Faretta¹ hearing on the record; and (2) the evidence was insufficient to support the guilty verdicts. Although we conclude that the evidence was sufficient to support Porter's convictions, we further conclude that the record fails to demonstrate that the trial court properly advised Porter of the dangers of proceeding pro se. Moreover, we conclude that, even if there was no unequivocal request to proceed pro se, the trial court failed to properly evaluate whether Porter acted with reasonable diligence in obtaining counsel and whether the absence of counsel was attributable to reasons beyond Porter's control. Therefore, we reverse.

1. Considering Porter's second enumeration first,² he contends that the evidence was insufficient to support his convictions. The gravamen of Porter's argument is that the State failed to present any direct evidence of Porter's involvement in the crimes and that the circumstantial evidence did not support the conclusion that Porter knew the items he retrieved from Walmart were purchased by " ‘accessing the resources of an individual,’ that his co-defendant ‘used the identifying information’ to obtain the item, or that [he] actually did ‘use such identifying information.’ " We do not agree.

When reviewing a defendant's conviction after a bench trial,

the issue before [this Court] is whether the evidence was sufficient to support a conviction under the standards of Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore, we view the evidence in the light most favorable to the trial court's judgment, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence, nor do we determine the witnesses’ credibility. Instead, we determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citation and punctuation omitted.) Hill v. State , 341 Ga. App. 409, 801 S.E.2d 87 (2017). "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-14-6.

Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.

(Citation and punctuation omitted.) Bradley v. State , 317 Ga. App. 477, 479, 731 S.E.2d 371 (2012). In a bench trial, "if the judge is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict will not be disturbed by the appellate court unless the verdict is unsupportable as a matter of law." Youngblood v. State , 179 Ga. App. 163, 164, 345 S.E.2d 634 (1986).

Here, the evidence revealed that at least two elderly victims (V. W. and L. R.), after visits to either Cartersville Medical Center or Redmond Regional Medical Center in October or November of 2015, learned that their mail had been diverted to 112 Jones Street in Cartersville without their consent or knowledge. Moreover, the victims discovered that someone had applied for credit cards using their identities. In particular, a credit card issued by Walmart in the name of one of the victims’ names, V. W., had been used to purchase a Ninja blender and an iPad on Walmart.com and scheduled for pickup from the Cartersville Walmart. Two additional victims learned that their personal information had been compromised following similar visits.

Based upon the victims’ reports, a Cartersville Police Department investigator obtained a search warrant for 112 Jones Street in Cartersville on November 13, 2015. Living at the residence were Rebecca Linley and her fiancé, Porter; none of the victims knew either Linley or Porter or had authorized either one of them to use their personal information. The investigator found "an enormous amount of items" inside the residence that were still in boxes or had tags attached, suggesting that the items had only recently been purchased. The investigator also found documents that included the victims’ names. Furthermore, the investigator found employee identification cards for Linley from Cartersville Medical Center and Redmond Regional Medical Center at the residence. In addition, the investigator located a notebook with handwritten entries including the victims’ names, addresses, phone numbers, and the like.

The investigator also seized two laptop computers from the residence which he forwarded to the GBI for analysis. A GBI digital forensic investigator performed an analysis of both computers. In the first computer, the analyst discovered V. W.’s contact information as well as multiple internet searches, including "sale of gift cards instantly," "buy gift cards instantly," and "easy credit cards to get approved for." In the second computer, the analyst found contact information for L. R. and additional internet searches for a variety of terms, including "[i]f I keep applying for a Target card will I get approved," "[a]ll credit cards that are easy to get," and "how to find someone's driver's license number." Both computers contained registration information for "rell.porter@yahoo.com."³ Finally, the analyst found an order from Walmart.com, placed using an email address in V. W.’s name, and an email indicating that the items ordered were ready to be picked up from the Cartersville Walmart. In an interview, Porter admitted picking up the Ninja blender and the iPad⁴ from the Cartersville Walmart.⁵

Relevant to this case, a person commits the offense of identity fraud when he "willfully and fraudulently ... [w]ithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person[.]" OCGA § 16-9-121 (a) (1). Based upon our review of the evidence outlined above, we conclude that the evidence was sufficient to find Porter guilty beyond a reasonable doubt of, or as a party to, the crimes with which he was charged. See Gaskins v. State , 318 Ga. App. 8, 9-10 (1) (a), 733 S.E.2d 338 (2012) ; Zachery v. State , 312 Ga. App. 418, 418-420 (1), 718 S.E.2d 332 (2011).

2. Next, Porter asserts that the trial court violated his constitutional rights by requiring him to represent himself at trial without an unequivocal waiver of his right to counsel and by failing to conduct a Faretta hearing on the record. The record is in some conflict on this point. Based upon the trial court's statements, both at the conclusion of Porter's trial and during the hearing on his motion for new trial, the trial court believed that Porter made an unequivocal request to proceed pro se. However, the record does not demonstrate that the trial court advised Porter of the dangers of proceeding pro se. Furthermore, even in the absence of an express waiver of the right to counsel, the trial court failed to properly evaluate whether Porter acted with reasonable diligence in obtaining counsel and whether the absence of counsel was attributable to reasons beyond Porter's control.

(a) Absence of Faretta Hearing. It is axiomatic that the Georgia constitution provides that "[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel...." Ga. Const. of 1983, Art. I, Sec. I, Par. XIV. Generally, a defendant's right to counsel "may be waived only by voluntary and knowing action." Ford v. State , 254 Ga. App. 413, 415, 563 S.E.2d 170 (2002) ; see also Saunders v. State , 347 Ga. App. 84, 86 (2), 815 S.E.2d 622 (2018). However, once a defendant makes a pre-trial, unequivocal assertion of the right to represent himself, the trial court should conduct "a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation." Thaxton v. State , 260 Ga. 141, 142 (2), 390 S.E.2d 841 (1990). "Under Faretta the trial court must apprise the defendant of the dangers and disadvantages inherent in representing himself so that the record will establish that he knows what he is doing and his choice is made with eyes open." (Citation and punctuation omitted; emphasis supplied.) State v. Evans , 285 Ga. 67, 68, 673 S.E.2d 243 (2009). Rather than checking off a formulaic listing of factors, "the record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver." (Citation and punctuation omitted.) Id. Importantly, "[w]aiver will not be lightly presumed, and a trial judge must indulge every reasonable presumption against waiver." (Citation and punctuation omitted.) Callaway v. State , 197 Ga. App. 606, 607, 398 S.E.2d 856 (1990).

In this case, no transcripts of any pre-trial proceedings are included in the record or, apparently, even exist.⁶ During the hearing on Porter's motion for new trial, in an attempt to fill this...