Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Freeman

Court of Appeals of Georgia, Second Division

March 5, 2019

THE STATE
v.
FREEMAN

          MILLER, P. J., BROWN and GOSS, JJ.

          Miller, Presiding Judge.

         David Justin Freeman was accused of loitering upon school premises, in violation of OCGA § 20-2-1180. The State appeals from the trial court's grant of a general and special demurrer to Freeman, arguing that the language of the accusation sufficiently apprised Freeman of the crime alleged. Because the accusation was subject to a general demurrer, we affirm.

         "We review a trial court's ruling on a general or special demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient." (Citations omitted.) Sallee v. State, 329 Ga.App. 612, 616 (2) (765 S.E.2d 758) (2014).

         In a single count, the accusation[1] charged Freeman

with the offense of Loitering upon school premises, for that the said accused in the County aforesaid, on or about the 11th day of January, 2017, did, without having a legitimate cause thereon, to wit: for the purpose of contacting a [s]tudent and obtaining his personal information, remain in the school safety zone of Rockmart Middle School, after having been told not to do so by law enforcement on a previous occasion where he had entered or attempted to enter school property, to wit: a Polk County school bus, for the same purpose, in violation of OCGA [§] 20-2-1180 . . . .

         Proceeding pro se, Freeman filed several pre-trial motions, including a motion to dismiss and/or quash the accusation. Freeman requested that the trial court dismiss the accusation "on the grounds of demurrer" because it failed to allege that he had violated OCGA § 20-2-1180. Specifically, Freeman contended that OCGA § 20-2-1180 does not apply to instances where an individual goes to a school after having been told not to do so on a separate occasion, and that no one had asked him to leave the school on January 11, 2017.

         The trial court held a hearing on Freeman's motions and construed his motion to dismiss and/or quash as a general and special demurrer. At the hearing, the State contended that it had sufficiently alleged a violation of OCGA § 20-2-1180 (b) (1). The trial court, however, dismissed the accusation, stating as follows:

As a general demur[r]er, this motion is granted because the accusation fails to allege either OCGA Section 20-2-1l80 (b) (1) or (b) (2) was violated and the Code plainly requires that one of those two conducts must have occu[r]red before a crime is committed. As a special demur[r]er this motion is granted because the accusation must be perfect in form and substance. The Defendant is entitled to be notified which violation he is to defend. When a statute allows alternative ways in which a crime may be committed, the accusation or charging instrument must allege which alternative the conduct violates or else it is subject to special demur[r]er.[2]

         This appeal followed.

         The State contends that the trial court erred in granting Freeman's motion because the accusation sufficiently tracked the language of OCGA § 20-2-1180 (b) (1), and therefore the State's failure to specifically cite that subsection did not render the accusation invalid.[3] Pretermitting this issue, however, the accusation was nevertheless subject to a general demurrer because it did not allege facts constituting Freeman's violation of a criminal statute.

         "A general demurrer challenges the validity of an [accusation] by asserting that the substance of the [accusation] is legally insufficient to charge any crime." (Citation omitted.) Poole v. State, 326 Ga.App. 243, 247 (2) (a) (756 S.E.2d 322) (2014). "[T]he 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." (Citation and punctuation omitted.) Id. at 247-248 (2) (a).

OCGA § 20-2-1180 provides:
(a)It shall be unlawful for any person to remain in or on any school safety zone in this state or to remain in or on any such school safety zone when such person does not have a legitimate cause or need to be present thereon. Each principal or designee of each public or private school in this state shall have the authority to exercise such control over the buildings and grounds upon which a school is located so as to prohibit any person ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.