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Hilley v. State

Court of Appeals of Georgia, Fifth Division

October 25, 2017

HILLEY
v.
THE STATE. HILLEY
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         A jury found Jeremy Hilley guilty of using a computer Internet service to seduce a person he believed to be a child as well as two counts each of attempted aggravated child molestation and attempted child molestation. On appeal from his conviction for these crimes in Case No. A17A0834, Hilley argues that the trial court made inadequate findings in its order denying his motion for new trial and that his due process rights were violated when a federal court quashed subpoenas seeking evidence against a federal agent involved in his arrest. In the companion appeal, Case No. A17A1691, Hilley argues that the trial court erred when it revoked his probation because Hilley was entitled to assert his Fifth Amendment right against self- incrimination and because the State did not prove that Hilley was informed of the rules of his treatment program. We find no error and affirm in both cases.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation omitted).

         So viewed, the record shows that in late June 2010, Detective Chris Lyons of the Catoosa County Sheriff's Office placed an ad on Craigslist purporting to be from two girls looking to meet men who could buy the girls "s[ome] wine coolers." Hilley answered the ad, stating that he was 29, could send pictures, and "would love to party with you girls." When the officer responded with a message that the two girls were 14 and 15 respectively, Hilley asked whether they were "cops" or part of "a sting operation" but also said that he would "love to" meet them. After further discussion and an exchange of pictures, Hilley asked whether both of the girls were willing to have sex with him. The officer responded that they were but asked Hilley to "bring s[ome] protection." After the exchange of further messages, some of them sexually explicit, Hilley agreed to meet at a local park at 6 p.m. on the following day.

         When Hilley arrived at the park early, he was met by Detective Lyons and another officer, who confirmed Hilley's identity and arrested him. A search of Hilley's car by officers including FBI Special Agent Ken Hillman, the director of a joint task force on internet crimes against children, found two condoms as well as directions to the park. The officers also found that Hilley's cell phone number matched the one he had disclosed during the conversations with the detective. Hilley was charged with one count of using a computer internet service for the purpose of seducing a child, two counts of attempted aggravated child molestation, and two counts of attempted child molestation. After a jury found him guilty on all five counts, Hilley was convicted and sentenced to 20 years on probation, including 48 months in a detention center.

         The sex offender special conditions of Hilley's probation included that (1) that Hilley have no contact, whether directly or indirectly, with any child under the age of 18 other than his own children; (2) that he "attend and actively participate in sex offender evaluation and treatment at a program approved by the Probation Officer[, ] abide by the rules of the treatment program[, ] and successfully complete the program to the satisfaction of the Probation Officer and the treatment provider"; (3) that he "submit, at [his] own expense, to any program of psychological or physiological assessment at the direction of the Probation Officer or treatment provider, " including polygraph testing "to assist in treatment, planning, and case monitoring"; and (4) that he "not [ ] possess or use any type of computer." Although Hilley signed an acknowledgment of some of the special conditions of his probation as to Counts 1 and 2, including that "violation of a condition of probation could result in revocation of all time remaining on the period of probation, " he refused to sign acknowledgments as to Counts 3, 4 and 5 or any of the sex offender special conditions, which were read to him nonetheless.

         On December 22, 2011, Hilley's first appellate counsel filed a motion for new trial. Between December 2011 and May 2014, Hilley was represented by three different attorneys. In May 2014, the fourth and current appellate counsel appeared, and she soon obtained a continuance of a hearing on the motion for new trial scheduled for July 7, 2014.

         On July 13, 2015, Hilley filed an amended motion for new trial, with attachments including news articles and federal court orders quashing subpoenas seeking evidence as to the activities of Special Agent Hillman and his task force. After obtaining another continuance, Hilley moved to recuse the trial judge. After a hearing, a second judge denied the motion to recuse, noting that it was based "in large part on speculation as to what may be revealed from sources that have been precluded from access by repeated orders" of the federal court. Hilley then filed a second amended motion for new trial, attaching many of the same documents attached to his first amended motion. The second amended motion noted that it did not "request oral argument" and asked the court "to rule on the motion after reviewing the record and the briefs." On November 4, 2015, and after noting that Hilley had thus "waived a evidentiary hearing, " the trial court denied the second amended motion for new trial.

         After serving the prescribed 48 months in the probation detention center, Hilley began weekly sex offender therapy sessions with Dr. Glenn Fraser in February 2016. On November 15 and December 20, 2016, Hilley appeared for polygraph tests. According to the polygraph examiner, during both the pre-test interview and the test itself, Hilley invoked his Fifth Amendment right against self-incrimination in response to questions as to whether he had unsupervised contact with anyone under age 18, whether he had used alcohol or illegal drugs, or whether he had violated any treatment or probation rules. Shortly afterward, Dr. Fraser released Hilley from treatment because he was refusing to "engage in treatment." On February 7, 2017, the State petitioned for the revocation of Hilley's probation. The petition alleged that Hilley violated his probation when he "[f]ailed to abide with the sex offender conditions of probation, to wit: the defendant was terminated from sex offender treatment."[1]

         At the March 2017 hearing on the petition to revoke Hilley's probation, Dr. Fraser testified that he had begun treating Hilley in February 2016, seeing him once a week. Fraser testified that he discharged Hilley in December 2016 for "multiple" reasons, including that Hilley "would not engage in treatment" and would "only talk about his case of trying to get off probation." Specifically, Fraser testified that "after failing the polygraphs, " Hilley asserted his Fifth Amendment rights against self-incrimination. When Fraser responded by telling Hilley that treatment would necessarily require administering "more polygraphs to investigate . . . areas that were of concern, " Hilley refused such tests in advance, asserting that they amounted to "cruel and unusual punishment." On cross-examination, Fraser explained further that Hilley was terminated based on his high "level of denial" as to the facts of his offenses for a substantially longer period than usual, amounting to a refusal to engage in treatment. Specifically, and because Hilley "could not be accurately supervised" without polygraph testing, the treating psychologists were bound by their own contracts with the State not to grant him "credit under [Department of Community Supervision] guidelines for treatment." After hearing this testimony, the trial court found that Hilley had violated his probation by failing to complete treatment, granted the State's revocation petition, and ordered Hilley jailed for one year.

         Hilley filed a direct appeal from the denial of his motion for new trial, and we granted his application for discretionary appeal from the revocation of his probation.

         Case No. A16A0834

         1. Although Hilley has not challenged the sufficiency of the evidence against him, the evidence outlined above was sufficient to sustain his conviction. See OCGA § 16-6-4 (defining child molestation and aggravated child molestation), 16-4-1 (defining criminal attempt to commit a felony), § 16-12-100.2 (d) (defining the offense of using an internet service to seduce or attempt to seduce a child or "another person believed by such person to be a child"); Lopez v. State, 326 Ga.App. 770, 773-774 (1) (a), (b) (757 S.E.2d 436) (2014) (evidence was sufficient to sustain defendant's conviction for using a computer internet service and attempted aggravated child molestation, given that neither crime required proof that the defendant was communicating with an actual child ...


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