Sarver v. State, A92A1064

• Decision Date: 24 November 1992
• Docket Number: No. A92A1064,A92A1064
• Citation: 426 S.E.2d 48,206 Ga.App. 459
• Parties: SARVER v. The STATE.
• Court: Georgia Court of Appeals

Page 48

426 S.E.2d 48

206 Ga.App. 459

SARVER v. The STATE.

No. A92A1064.

Court of Appeals of Georgia.

Nov. 24, 1992.

Susan I. Sarver, pro se.

Ralph T. Bowden, Jr., Sol., Andrew T. Rogers, Cliff Howard, Asst. Sols., for appellee.

BIRDSONG, Presiding Judge.

Susan Ivey Sarver, pro se, appeals her misdemeanor conviction for making harassing telephone calls in violation of OCGA § 16-11-39(4). Held:

1. Although Sarver has filed neither an appellant's brief nor an enumeration of error, under Lee v. State, 203 Ga.App. 487, 488, 417 S.E.2d 426; Allen v. State, 192 Ga.App. 320, 321, 385 S.E.2d 29; Conyers v. State, 183 Ga.App. 591, 359 S.E.2d 454; and DeBroux v. State, 176 Ga.App. 81, 335 S.E.2d 170, we are not authorized to dismiss the appeal, but instead must " 'make every effort to render a decision on the merits of the case.' " Lee v. State, supra, 203 Ga.App. at 488, 417 S.E.2d 426.

2. Accordingly, having conducted an independent review of the record on appeal (Allen v. State, supra), we find the evidence presented at trial is insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, to sustain Sarver's conviction for violating OCGA § 16-11-39(4). The accusation charged that Sarver "on the 18th day of April, 1991, in DeKalb County, State of Georgia, committed the offense of harassing phone calls by telephoning Brian Fuller for the purpose of harassing him in violation of OCGA § 16-11-39, the date alleged being a material element of this charge." OCGA § 16-11-39 provides: "A person who commits any of the following acts commits a misdemeanor: ... (4) Telephones another repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another or his family; uses over the telephone language threatening bodily harm; telephones and intentionally fails to hang up or disengage the connection; or knowingly permits any telephone under his control to be used for any purpose prohibited by this paragraph." (Emphasis supplied.) In Hazelton v. State, 200 Ga.App. 61, 63, 406 S.E.2d 569, this court held that "a person may commit the offense of 'harassing phone calls' in separate and alternative ways. The offender commits the offense when he repeatedly telephones another with an intent to harass. He commits the offense when he uses the telephone to threaten bodily harm. He commits the offense when he fails to hang up or disengage the phone. Finally, the offender commits the offense when he knowingly permits another to use a telephone under his control in any of the foregoing ways." (Emphasis supplied.)

As this accusation alleged only that Sarver called Fuller for the purpose of harassing him, to prove that she violated OCGA § 16-11-39(4) the prosecution was required to establish that she telephoned Fuller repeatedly with the intent to harass. Hazelton v. State, supra; compare Barnett v. State, 204 Ga.App. 491, 496(3), 420 S.E.2d 43; Feagin v. State, 198 Ga.App. 460, 461(2), 402 S.E.2d 80; Ross v. State, 195 Ga.App. 624(1b), 394 S.E.2d 418. Both Fuller and Sarver testified, however, that Sarver telephoned Fuller only once on April 18, 1991. Since one telephone call cannot satisfy the requirement that she had called him repeatedly, this evidence is not sufficient to prove that she violated OCGA § 16-11-39(4). On the contrary, this evidence proves that Sarver did not repeatedly call Fuller on April 18, 1991. Although the State argues that proof of one telephone call to Fuller's wife on April 17 and three or four other telephone calls on other dates several months earlier was sufficient to prove the offense, such proof is not sufficient because the prosecution alleged that the date was a material element of the charge. When "the indictment specifically alleges the date of the offense is material, the accused may be convicted only if the State's proof corresponds to the date alleged." Ledesma v. State, 251 Ga. 885, 311 S.E.2d 427. Accordingly, the evidence presented failed to prove a violation of OCGA § 16-11-39(4), because this section is violated "whenever one repeatedly places telephone calls to another person with the specific intent described in the statute." Harris v. State, 190 Ga.App. 805, 380 S.E.2d 345.

Therefore, having reviewed the evidence in the light most favorable to the verdict, we nevertheless must conclude that no rational trier of fact could have found the defendant guilty of the offense for which she was convicted beyond a reasonable doubt. See Jackson v. Virginia, supra. Under the circumstances, the conviction cannot stand.

Judgment reversed.

ANDREWS, J., concurs.

BEASLEY, J., concurs specially.

BEASLEY, Judge, concurring specially.

The court has adopted a policy of combing the record in criminal appeals which have not been pursued, rather than dismissing them, as is done in other cases. Then, instead of appointing counsel to represent the appellant in such cases, or even inquiring whether appellant is entitled to appointed counsel, ¹ the court undertakes to represent the appellant directly and then decides the case on at least the general grounds. This requires the State, as the opposite party, to file a responsive brief without even an enumeration of error to address. I disagree with this policy, as it casts the court in the additional role of advocate, which is not assigned to it, and it gives the appellant who takes no action an advantage which the appeal-pursuing appellant does not have. See Lee v. State, 203 Ga.App. 487, 489, 417 S.E.2d 426 (1992) (dissent); Allen v. State, 192 Ga.App. 320, 322, 385 S.E.2d 29 (1989) (dissent); Golden v. State, 190 Ga.App. 477, 480, 379 S.E.2d 230 (1989) (dissent);...