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Kaufman v. State

Court of Appeals of Georgia, Fourth Division

January 26, 2018

KAUFMAN
v.
THE STATE.

          DILLARD, C. J., RAY and SELF, JJ.

          Dillard, Chief Judge.

         Following trial, a jury convicted Christopher Kaufman of three counts of stalking, two counts of criminal trespass, five counts of engaging in harassing communications, eleven counts of criminal attempt to commit a misdemeanor by violation of a protective order, and one count of violation of a protective order. On appeal, Kaufman challenges the sufficiency of the evidence supporting two of his stalking convictions. He further argues that the trial court erred in denying his motion in arrest of judgment as to the same two stalking convictions, based on alleged defects in the accusation, and in denying his claims of ineffective assistance of counsel. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the evidence shows that S. Z. met Kaufman in 2011, while she was attending Kennesaw State University, and the two started dating that same year. Shortly thereafter, S. Z. and Kaufman began cohabitating and ultimately had a child together. But less than a year later, their relationship began to sour as Kaufman would belittle S. Z. and frequently lose his temper with her. Over the course of next year or so, Kaufman's poor treatment of S. Z. escalated, as he verbally and physically abused her and forced her to engage in sexual intercourse. During this time, S. Z. made several attempts to end their relationship, but Kaufman refused to accept her pleas and told S. Z. that things would only become worse if she called the police.

         In 2014, although S. Z. was still scared of Kaufman, she permanently ended the relationship and moved in with her parents in their Canton home. Nevertheless, Kaufman continued contacting S. Z., incessantly calling her and sending her text messages, often requesting visitation with their son as a means of maintaining contact. On a few occasions, S. Z. agreed to let Kaufman see their child, but when she conditioned that any meetings occur at a public place, such as a restaurant, rather than her parents' home, Kaufman would become angry. And at some point within this time frame, Kaufman told S. Z. that if she ever started dating someone else, he would kill that person and her.

         In January 2016, Kaufman was apparently homeless, but he continued to show up at S. Z.'s parents' home without invitation or notice. In one instance, S. Z. and her mother reluctantly agreed to allow Kaufman to come to the house to pick up some tools that he had left there and needed for work, but once at the house, Kaufman refused to leave when S. Z. demanded that he do so, and he then threatened to slit S. Z.'s father's throat when he intervened on his daughter's behalf. Eventually, Kaufman left, and S. Z. told him not to return. Nevertheless, over the next several weeks, Kaufman continued to contact S. Z. numerous times every day by calling her and sending text messages to her mobile phone. Alarmingly, some of Kaufman's texts to S. Z. demonstrated that he was tracking her movements. Additionally, the tone of Kaufman's messages became increasingly angrier when S. Z. attempted to ignore them.

         On February 11, 2016, S. Z. filed a report with the Cherokee County Sheriff's Office regarding Kaufman's actions. Specifically, she reported that Kaufman was stalking her and watching her from the woods near her parents' home. The next day, Kaufman went to S. Z.'s home while she was not there, dropped off some laundry, and admitted to her that he had done so, via a text, despite having been told not to return. An investigator contacted S. Z. a few days later and encouraged her to obtain a protective order against Kaufman, but she expressed a reluctance to do so for fear that he would retaliate.

         In the early morning hours on February 27, 2016, Kaufman made repeated attempts to contact S. Z., via text message, and when S. Z. returned to her parents' home from running some errands just before noon, she saw Kaufman near the garage. Frightened, S. Z. backed her vehicle out of the driveway and called her mother, who in turn contacted law enforcement to report Kaufman's presence. Two deputies responded, found Kaufman a few blocks away from the home, walking toward a nearby Waffle House, and issued him a warning for criminal trespass. Afterward, the deputies forwarded their report of the incident to the investigator who S. Z. had initially contacted, and he called S. Z. to schedule a follow-up meeting. But a few days before her scheduled meeting with the investigator, S. Z. was inspecting the interior of a horse trailer on her parents' property that she was trying to sell, when she found a sleeping bag and a Waffle House cup. Immediately, she called the investigator, who responded to the scene and canvassed the area looking for Kaufman. Unable to find him at that time, the investigator left his card at the nearby Waffle House and requested that the employees have Kaufman contact him if he returned there.

         Two days later, on March 3, 2017, Kaufman called the investigator from the Waffle House, and the investigator dispatched deputies to the restaurant to arrest him. The deputies then transported Kaufman to the investigator's office to be interviewed, and during that interview, Kaufman admitted to placing the sleeping bag inside S. Z.'s horse trailer. Following the interview, deputies transported Kaufman to the Cherokee County Detention Center. But despite being incarcerated, Kaufman continued his attempts to contact S. Z., placing more than 60 phone calls to her from the detention center's telephones until March 7, 2016, when detention center personnel, after being alerted by S. Z., blocked his ability to call her number.

         On March 14, 2016, while still incarcerated, Kaufman sent S. Z. a letter, in which he expressed remorse and his continued love for her but also blamed her for the issues they were having. Finding the letter intimidating, S. Z. provided it to the investigator, who subsequently obtained additional criminal warrants against Kaufman. Undaunted, Kaufman sent S. Z. another letter nearly one month later, and then a third on May 9, 2016. S. Z. found the letters frightening and forwarded both of them to the investigator. She then obtained an ex parte protective order, and a law-enforcement officer served Kaufman with the order at the detention center. Shortly thereafter, S. Z. obtained a twelve-month protective order, which was then similarly served on Kaufman by an officer.

         Yet despite these two protective orders, Kaufman did not cease his efforts to contact S. Z., with records from the detention center indicating that he continued trying to call her phone number from detention center telephones even though her number had been blocked. In addition, on July 31, 2016, one week before Kaufman's scheduled trial, S. Z. received a text message from a phone number she did not recognize but which she believed, based on the content, was sent to her at Kaufman's behest. Ultimately, the investigator determined that the text message was sent from the daughter of one of Kaufman's cellmates. And indeed, during an interview, the inmate admitted that Kaufman requested that he relay a message to S. Z.

         Thereafter, the State charged Kaufman, via accusation, with three counts of stalking, two counts of criminal trespass, five counts of engaging in harassing communications, eleven counts of criminal attempt to commit a misdemeanor by violation of a protective order, and one count of violation of a protective order. The case then proceeded to trial, during which the aforementioned evidence and multiple exhibits, including Kaufman's text messages and letters to S. Z., were admitted. And at the conclusion of the trial, the jury found Kaufman guilty on all counts in the accusation. Immediately following the jury's verdict, Kaufman moved in arrest of judgment as to the stalking charges in Counts 2 and 3 of the accusation, arguing that the accusation was defective as to those counts. But the trial court denied the motion.

         Kaufman subsequently obtained new counsel and filed a motion for new trial, in which he argued, inter alia, that his trial counsel rendered ineffective assistance. The trial court conducted a hearing on the motion, during which Kaufman's trial counsel testified regarding his handling of the case. At the conclusion of the hearing, the trial court denied Kaufman's motion from the bench, and shortly thereafter, it issued an order to that effect. This appeal follows.

         1. Kaufman contends that the evidence was insufficient to support his convictions on the charges of stalking. We disagree.

         When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.[2] And, of course, in evaluating the sufficiency of the evidence, "we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."[3] Thus, the jury's verdict will be upheld so long as "there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."[4] With these guiding principles in mind, we turn now to Kaufman's specific claim of error.

         Under OCGA § 16-5-90 (a) (1), "[a] person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. . . ."[5] Under this same statute, "contact" means

any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received. . . .[6]

         Additionally, OCGA § 16-5-90 (a) (1) provides that "harassing and intimidating" means "[a] knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. . . ."[7] And this Court has held that the phrase "course of conduct" dictates that "a pattern of behavior must be shown, but such a pattern may include the prior history between the parties."[8] Importantly, a defendant need not engage in "unequivocally hostile conduct or make explicit threats in order to be convicted of stalking."[9] In fact, even behavior that is not "overtly threatening can provide the requisite degree of intimidation and harassment if it is ongoing, repetitious, and engaged in despite the communicated wishes of the victim."[10]

         Here, as previously discussed, the evidence shows that S. Z. unequivocally demanded that Kaufman stay away from her parents' home, where she lived, but he repeatedly returned there despite S. Z.'s admonitions and a criminal-trespass warning from law-enforcement officers. In addition, Kaufman incessantly called and sent text messages to S. Z. on her mobile phone, becoming increasingly angrier the longer she tried to ignore such contact. Moreover, the content of many of those calls and messages indicated that Kaufman was tracking S. Z.'s movements. Furthermore, even after Kaufman was arrested, he sent S. Z. three separate letters and attempted to call her more than 60 times using the detention center's phones. And as S. Z. testified, Kaufman's unceasing attempts to watch, communicate with, and harass her placed her in emotional distress sufficient to put her in fear for her safety. Finally, although Kaufman argues that his attempts to contact S. Z. were merely expressions of his love and his desire to see his son, "it is for the finder of fact to determine whether the defendant acted with the requisite degree of criminal intent in engaging in the act for which he is prosecuted."[11] Accordingly, the State presented sufficient evidence to support Kaufman's convictions on the charges of stalking.[12]

         2. Kaufman also contends that the trial court erred in denying his motion in arrest of judgment as to the stalking convictions charged in Counts 2 and 3 of the accusation, specifically arguing that those two counts were fatally defective. Again, we disagree.

         It is well established that a motion in arrest of judgment must be "based upon a defect that the accused might otherwise have challenged by a timely general demurrer."[13] Under Georgia law, a general demurrer "challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime, " and it should be granted "only when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law."[14] Stated more plainly,

the true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. If the indictment is fatally defective, the sufficiency of the indictment can be questioned by general demurrer or by motion in arrest of judgment.[15]

         Furthermore, an indictment is not void if "it is sufficient to place the defendant on notice of the charges against him and enable him to prepare an intelligent defense."[16]And in attacking an indictment after the verdict, "every presumption and inference is in favor of the verdict."[17]

         As noted supra, OCGA § 16-5-90 (a) (1) provides: "A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. . . ." And in this matter, Count 2 of the accusation alleged that in Cherokee County, Kaufman "did unlawfully then and there commit the offense of stalking by contacting [S. Z.], without the consent of said person, for the purpose of harassing and intimidating said person, in violation of OCGA § 16-5-90 contrary to the laws of this State. . . ." Similarly, Count 3 alleged that in Cherokee County, Kaufman "did unlawfully then and there commit the offense of stalking by contacting [S. ...


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