Whitson v. State
| Decision Date | 14 June 2021 |
| Docket Number | A21A0389 |
| Citation | 359 Ga.App. 757,860 S.E.2d 70 |
| Court | Georgia Court of Appeals |
| Parties | WHITSON v. The STATE. |
Brian Steel, Atlanta, for Appellant.
Darius T. Pattillo, Sharon Lee Hopkins ADA, Duluth, for Appellee.
Phipps, Senior Appellate Judge.
A jury found Arick Whitson guilty of making a false statement and making a false report of a crime. The trial court sentenced Whitson, but then vacated his sentence for making a false statement pursuant to the rule of lenity. Whitson filed a motion for new trial, which he amended twice. The trial court denied the motion, and Whitson appealed. On appeal, Whitson argues that the trial court erred in admitting other acts evidence, and his trial counsel was ineffective for failing to object to the admission of some of that evidence. Whitson further argues that it was plain error for the trial court to send his indictment out with the jury because the indictment erroneously displayed that he had pled guilty to certain counts. We find no reversible error and affirm Whitson's convictions.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia , and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.
Knowles v. State , 342 Ga. App. 344, 346 (1), 801 S.E.2d 582 (2017) (citations omitted).
The record shows that in August 2016, the victim ended her four-year relationship with Whitson. At that point, Whitson began harassing the victim through e-mails and social media. In addition, the victim's friends, family, coworkers, and manager began receiving messages from "fake" e-mail and Facebook accounts purporting to be the victim's. The e-mails included nude photographs of the victim taken by Whitson and defamatory messages, one of which included a subject line reading, "Never attempt to humiliate your mate." The Facebook account included a caption underneath the victim's name that read, "I love to have sex all the time, I play hard to get but I am not." Whitson later apologized in an e-mail for sending the nude photographs, claiming another romantic interest inadvertently gained access to the photos and disbursed them.
On October 14, 2016, the victim filed a police report in Clayton County concerning the harassing e-mails and fake Facebook account, but no criminal action was initiated because Clayton County did not have jurisdiction. The victim subsequently petitioned for and received a temporary protective order in Henry County against Whitson based on his threatening actions.1
On October 24, 2016, four days after the victim petitioned for the temporary protective order, Whitson filed a police report alleging that the victim had committed armed robbery against him and aggravated assault against his employee the night before. According to the Henry County police officer, Whitson showed up at the police station with a pre-typed statement. Both the officer and the detective on the case testified that it was the only time in their careers that someone had come into the police station with a pre-typed statement. It was also unusual for the victim of an armed robbery to not report the crime immediately. Whitson alleged that the victim came to his restaurant, demanded his cell phone, pointed a pistol at him, pulled its trigger, took the cell phone, and drove off. Whitson claimed his employee witnessed the armed robbery and was similarly threatened by the victim. Whitson completed a handwritten statement while at the station.
Later that same day, Whitson returned to the station with his employee, who submitted both a pre-written, signed statement and a contemporaneous statement at the police station indicating that the victim assaulted and pointed a gun at her. However, the employee later told police that her initial statement was not true, and she gave two statements recanting her initial statement. At trial, the employee testified that Whitson "told [her] the things to say[ ]" at the police station, but she did not witness anything happen. According to the employee, she helped Whitson because she needed her job. She also claimed that Whitson actually wrote her statement because she cannot spell well, and she never read the statement before she signed it because she cannot read well. Whitson subsequently fired the employee, who later pled guilty to filing a false report of a crime.
Also on October 24, 2016, Whitson filed for and received a temporary protective order against the victim, but his petition did not reference the armed robbery allegation.
On November 4, 2016, the victim noticed Whitson following her throughout the day, so she drove to the police department and reported Whitson's violation of the court's restraining order. On this same date, Whitson filed criminal charges and a motion for contempt against the victim, claiming she followed him in violation of his temporary protective order. Whitson also went to the detective investigating the armed robbery charge and gave him another statement about the armed robbery, including the fact that the victim was following him.
Around this same date, the victim learned of Whitson's allegation that she had committed armed robbery and assault, and she gave a statement to the detective investigating the case. According to the victim, she had difficulty writing the statement because the incident never happened. On November 7, 2016, the detective applied for an arrest warrant for the victim, but the magistrate judge denied the warrant. Upon further investigation, and after the employee recanted her initial statement, the detective applied for arrest warrants for both Whitson and the employee.
On November 11, 2016, Whitson proposed that he and the victim both drop their restraining orders. The victim agreed and dismissed her petition. However, Whitson then began mailing and e-mailing the victim again. The victim received more than 30 e-mails from Whitson throughout December of 2016, and even more e-mails in January of 2017, despite her repeated requests that Whitson stop contacting her. Not a single e-mail accused the victim of armed robbery. The e-mails became more aggressive and offensive, and in the first half of February 2017, family, friends, and colleagues began receiving additional communications from Whitson.
On February 16, 2017, the victim applied for and received a stalking temporary protective order. A week later, Whitson filed for and received his own temporary protective order. The next day, Whitson also filed a civil suit against the victim, accusing the victim of various crimes, torts, and breach of contract.
Following a March 2017 hearing, where the victim testified that because of Whitson's actions she moved, changed her personal phone number twice, and disconnected a voice number she used for her business as a hair stylist, the victim was granted a stalking 12-month protective order, and Whitson's request for a protective order was dismissed the next day.
The State further introduced evidence that Whitson had waged a similar campaign of intimidation and false accusations against a former girlfriend. The former girlfriend testified that she dated Whitson from 2005 to March 2009. After the former girlfriend broke up with Whitson, he sent her and her family, friends, and coworkers unsolicited, derogatory, and sexually explicit e-mails and letters harassing her. The former girlfriend testified that she sought a restraining order against Whitson, and her employer hired a police officer to provide added security at work for her protection.
She further testified that Whitson falsely accused her of holding him at gunpoint in a parking lot, told the Department of Family and Children Services that she ran a prostitution ring and forced her children into prostitution, told school officials that her children were enrolled illegally in that county, and told her company she was embezzling company funds. Whitson's claims were ultimately found to be untrue, and Whitson was convicted in 2011 of stalking his former girlfriend.
Whitson then took the stand and testified that on October 23, 2016, the victim came to his business, displayed a gun, pointed the gun at him, took his cell phone, and pushed his employee. He also testified that after his employee told police about the victim's armed robbery and assault, she left the police station crying, telling him that the police forced her to change her story. A phone audio-recording of this conversation between Whitson and his employee was played for the jury.
The jury ultimately found Whitson guilty beyond a reasonable doubt of making a false statement that the victim robbed him at gunpoint to Henry County police on October 24, 2016, as alleged in the indictment.2 The jury also found him guilty beyond a reasonable doubt of making a false report of the crime of armed robbery to an officer with the Henry County Police Department on October 24, 2016, as alleged in the indictment.3 This appeal followed.
1. Whitson first asserts that the trial court erred in admitting purported other acts evidence and that his trial counsel was ineffective for failing to object to some of the other acts evidence. We find no merit in either claim.
The record shows that the State filed a motion to admit evidence of other crimes or occurrences under OCGA § 24-4-404 (b). Specifically, the State argued that acts Whitson committed against his former girlfriend after she broke up with him – which included harassing e-mails and letters sent to friends, family, and coworkers, false allegations against the girlfriend, and actions leading to Whitson's...
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