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Entwisle v. State

Court of Appeals of Georgia, First Division

February 1, 2017


          DOYLE, C. J., ANDREWS and RAY, JJ.


         Following a jury trial, Joe Don Entwisle was convicted of first degree burglary, [1] second degree burglary, [2] criminal trespass, [3] two counts of theft by taking, [4]theft by receiving, [5] computer invasion of privacy, [6] and possession of a firearm by a convicted felon.[7] Entwisle appeals the denial of his subsequent motion for new trial, arguing that trial counsel was ineffective; the trial court erred by admitting his prior convictions without holding a hearing as required by OCGA § 24-4-403; and the evidence was insufficient to support his conviction for first degree burglary. For the reasons that follow, we reverse the denial of Entwisle's motion for new trial as to computer invasion of privacy, and we affirm his remaining convictions.

On appeal, the evidence must be viewed in the light most favorable to support the verdict; indeed, the evidence is construed in favor of the verdict. [Entwisle] no longer enjoys a presumption of innocence. Moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.[8]

         So viewed, the record shows that in early 2013, Entwisle approached the back door to Villa Hizer's home, wearing a back pack, and told her that he lived on a nearby street and was looking for his missing dog. Hizer had never seen Entwisle during the 35 years she had lived in her home, nor had she seen a dog matching the description given by Entwisle. A few weeks later, on April 23, 2013, Hizer returned home after being out of town, entered through the carport door, which appeared to be unlocked, and noticed that certain doors were ajar and dresser doors were on the floor. The following items were missing from Hizer's home: watches, jewelry, baseball cards, a laptop computer, a gun, sterling silver lighters, and a piece of paper listing security codes. Hizer and police also discovered that a lock on one of her dining room windows had been broken, and there were pry marks on the outside of the window frame.

         Also on April 23, 2013, police arrived at a location in response to a "fight call." When they arrived, officers learned that one of the suspects had fled the scene in a green Ford heading toward Payne Road. Shortly thereafter, an officer spotted the Ford parked near what appeared to be an abandoned house on Payne Road. The officer saw that the back door to the house was ajar, leading him to believe that the fleeing suspect had entered the home.

         The officer attempted to enter the home, but the door was blocked by a stove; he then saw Jennifer Rowland, later identified as Entwisle's girlfriend, inside the house. While the officer spoke with Rowland, he heard another person running inside the house. The officer went around to the front door and knocked, and Rowland opened the door and squeezed through, making sure the officer could not see inside. While speaking with Rowland, the officer heard another person moving around inside the house, and Rowland eventually admitted her boyfriend, Entwisle, was inside. Rowland agreed to go inside; the officer, concerned for his safety, prevented her from closing the door and followed her into the house, where he found Entwisle hiding in a bedroom. While he was in the house, the officer observed two new bicycles in the kitchen, several suitcases, and many cardboard boxes. He applied for a warrant to search the house, but the warrant was denied.

         Thereafter, Hizer purchased a new computer and attempted to restore her computer files using Carbonite, an online backup system she had installed on the laptop that was stolen from her home. While doing so, Hizer learned that someone had used the laptop the day after it was stolen and opened her Quicken files, which contained private financial data, including her credit card and bank account information.

         An investigator obtained from Carbonite the IP addresses that were used to access Hizer's computer, including one from the Kings Inn motel. The investigator then learned that Rowland had rented a room at that motel, and Entwisle had stayed there with her. The investigator also discovered that someone using Hizer's computer after it was stolen had accessed an email account containing Entwisle's name.

         After learning that Entwisle had been the subject of the investigation at the Payne Road house on the same day that Hizer's home had been burglarized, the investigator obtained a search warrant for the Payne Road house, which warrant he executed on May 6, 2013. During the search, police recovered numerous stolen items, some of which belonged to Hizer and her husband, including jewelry, a watch, a piece of paper containing various security alarm codes, a pair of eyeglasses, and Hizer's husband's driver's license.[9] Police also found a crowbar, which the investigator later compared to and found consistent with the markings on Hizer's window frame.

         On March 9, 2013, at approximately 10:00 a. m., James McCrary and his wife returned to their home on Burnett Ferry Road in Floyd County after breakfast and discovered that the glass on the door leading from their patio to the garage was broken and scattered on the floor inside the garage.[10] Later that afternoon, police arrived at Holland Drive in response to a 911 call reporting "suspicious activity." Police found various items, including tools, strewn on the side of the roadway near the woods. An officer followed a trail through the woods, along which he found additional items on the ground, including a hand truck, until he reached the back of McCrary's property on nearby Burnett Ferry Road. There, the officer saw a freestanding workshop behind McCrary's property, and McCrary confirmed that the items found in the woods belonged to him and were taken from his workshop.

         Entwisle's girlfriend, Rowland, testified later at trial that at his request, she dropped Entwisle off on Holland Drive on March 9, 2013. Pursuant to his request, Rowland returned to the same spot approximately 15 minutes later, but she could not find Entwisle. While she was driving and looking for him, he called and advised her that he had seen police in the area; Rowland left the area after she received the call, saw the police cars, and "had a bad feeling." Later that night, Rowland was at a friend's house less than a mile from where she dropped Entwisle off on Holland Road when Entwisle arrived on a bike. Entwisle, who had multiple scratches, was angry with Rowland because she would not help him retrieve from the woods items that he said he got from a nearby home; Entwisle told her that he had to cover himself and the items with leaves when the police arrived in the area.

         Following a jury trial, Entwisle was convicted of first degree burglary, second degree burglary, criminal trespass, two counts of theft by taking, theft by receiving, computer invasion of privacy, and possession of a firearm by a convicted felon.[11] The trial court denied Entwisle's motion for new trial, and this appeal followed.

         1. Entwisle contends that he received ineffective assistance of counsel. We find no basis for reversal.

"[T]o prevail on a claim of ineffective assistance of counsel, [Entiwsle] must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, he must overcome the "strong presumption" that counsel's performance fell within a wide range of reasonable professional conduct, and that counsel's decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.[12]

         (a) Trial counsel filed and argued a motion to suppress the evidence found at the Payne Road house. Entwisle argues, however, that trial counsel rendered ineffective assistance in doing so by "fail[ing] to argue any applicable law and surrender[ing] the issue so quickly as if no motion was filed at all." Specifically, Entwisle contends that trial counsel should have argued that Entwisle had a protected Fourth Amendment interest in the Payne Road house based upon his status as a guest and because he was performing renovation work on the property in exchange for rent, making the property a workspace.

         In his motion to suppress, Entwisle averred that: he lived on 107 Lindsey Terrace; the Payne Road house was owned by Delane Lynch, his sister-in-law; no one lived in the Payne Road house; and Lynch had given Entwisle permission to be at the Payne Road home to work. Based upon those assertions, the trial court concluded that Entwisle did not have standing to challenge the search of the Payne Road house and denied the motion to suppress.

         At trial, the investigating officer testified that the house was "very dilapidated, . . . had no running water[, ] . . . had no power. . . . It was in rough shape. . . . [I]t was very dirty. . . . The house was . . . basically to me unliveable." Lynch, the owner, testified that during the time Entwisle was found in her house, "[v]agrants [went] in and out of my house all the time because it's - the grass [has grown] up all the way to the roof, and they can go in and out easily." At the time the police executed the search warrant of the house, they found a note, which stated: "As of 4/22/2013, property at 124 Payne Road is being occupied by Joe Don Entwisle and Jenny Rowland. The house is not abandoned. They are there to clean up, stay, protect, and reside. . . . Any questions concerning searching the house should be at the discretion of the occupants of the house." The note was signed by Lynch. Rowland testified at trial that she and Entwisle lived in the house on Payne Road "[f]or a brief time, " conceding that it did not have utilities or running water. According to Rowland, instead of paying rent for the house, she and Entwisle were supposed "to fix the place up."

         "In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable."[13] "[A] defendant must demonstrate both a 'subjective' expectation of privacy and that the expectation is one that society is willing to recognize as reasonable."[14]

         Regardless of whether Entwisle lived in the Payne Road house, "a place need not be respondent's 'home, ' temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy."[15] "A person has a legitimate expectation of privacy in his . . . home and may have a legitimate expectation of privacy in a house in which the person is an overnight guest; however, one who is merely present with the consent of the householder may not claim the protection of the Fourth Amendment."[16]

         Pretermitting whether a favorable ruling on the motion to suppress the evidence was possible, [17] however, Entwisle has failed to demonstrate that counsel's failure to argue more emphatically the motion constituted ineffective assistance. "Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them."[18] Given Entwisle's position at the time he filed the motion to suppress that neither he nor any one else lived in the Payne Road house at the time of the search and that he lived elsewhere, we find no basis to conclude that counsel's decision against arguing more strenuously for suppression of the evidence "was, at the time of trial, unreasonable."[19] And "the fact that present counsel disagrees with trial counsel's strategy does not render such strategic decision unreasonable."[20]

         (b) Entwisle maintains that trial counsel was ineffective by failing to object to the hearsay testimony by Hizer introduced by the State to support the computer invasion of property charge. We agree.

         At trial, Hizer testified that after the burglary at her home, she learned from Carbonite that someone had used her computer to access her Quicken files, which contained financial information regarding her bank and credit card accounts, and she immediately contacted her bank and credit card companies as a result. Entwisle argues that this testimony constituted inadmissible hearsay.

         OCGA § 24-8-801 (c) provides: "'Hearsay' means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to ...

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