MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
jury trial, Appellant David Wilson was convicted of one count
of aggravated assault, family violence (OCGA § 16-5-21
and one count of misdemeanor escape (OCGA § 16-10-52).
Appellant appeals from the denial of his motion for new
trial, arguing that the trial court erred in allowing the
State to introduce a recorded telephone conversation
conducted by the victim while she was alone in a police
interview room because the recording violated Georgia's
Eavesdropping Statute, OCGA § 16-11-62. He also argues
that the trial court erred in admitting the recorded
telephone conversation because it contained impermissible
character evidence. For the following reasons, we affirm.
On appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, and the defendant no
longer enjoys the presumption of innocence. We do not weigh
the evidence or determine witness credibility, but only
determine if the evidence was sufficient for a rational trier
of fact to find the defendant guilty of the charged offense
beyond a reasonable doubt under the standard of Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(citation and punctuation omitted.) Driggers v.
State, 291 Ga.App. 841, 841 (662 S.E.2d 872) (2008).
viewed, the evidence produced at trial shows that on May 15,
2013, Jessica Wilson, the victim and wife of Appellant, was
driving in a car with Appellant and her two children. An
argument occurred between Appellant and Wilson, and they
pulled the car over at a gas station. Wilson exited the car
and would not return to it despite Appellant's demands
that she do so and take him to his mother's house.
Shaniqua Harris, a clerk at the gas station, watched the
altercation while she was standing outside on a smoke break.
Harris testified at trial that Wilson "looked pretty
scared" and "didn't want to go in that car with
him." Harris testified that Appellant then exited the
car and that another verbal altercation erupted between the
two before Appellant returned to his car, retrieved a kitchen
steak knife, and stabbed Wilson in the thigh. Harris
explained that Wilson screamed, "[y]ou stabbed me,"
and Appellant fled the scene in his vehicle with her two
children still in the backseat. Harris observed Wilson pull
the knife out of her leg and toss it into a garbage can.
Harris identified the knife at trial. Harris recounted that
she told Wilson to come into the gas station so she could
call the police, but Wilson refused. The gas station manager
called 911, and police responded to the scene.
that afternoon, Wilson agreed to waive her Miranda
rights and speak with police officers. Wilson was interviewed
by Detective Manley in an interview room at the police
station. The interview was videotaped. During the police
interview, Wilson told Detective Manley that Appellant had
unintentionally stabbed her in the leg with a "metal
comb thing" that was in his pocket, and that she had
retrieved the knife from the car and thrown it in the trash
questioning Wilson, Detective Manley left the room
explaining, "I'll be right back then." He did
not state that the interview was over. Wilson then made phone
calls to undisclosed recipients. Her side of these phone
conversations were captured on the video recording and played
for the jury. During one of these conversations, Wilson
discussed her marriage to Appellant, her frustrations with
him, and his desire to sell drugs.
recorded interview and Wilson's subsequent telephone
conversations were introduced as State's Exhibit 23.
Appellant objected to the portion of Exhibit 23 that
contained Wilson's phone conversations on the basis that
the substance of her statements contained highly prejudicial
character evidence relating to Appellant which was not
admissible for any purpose under OCGA § 24-4-404. The
trial court overruled the objection. Immediately prior to the
State's introduction of Exhibit 23, Appellant further
objected to the admission of that portion of Exhibit 23 on
the basis that the telephone conversation was inadmissible
pursuant to Georgia's Eavesdropping Statute, OCGA §
16-11-67. The trial court overruled the objection.
State heard expert testimony from Rose Grant Robinson about
the contradictory behavior of domestic violence victims, as
well as evidence of several prior difficulties between Wilson
and Appellant wherein Appellant had previously beaten her
with a crowbar, a curtain rod, and had punched her in the
face in front of his parole officer.
Appellant argues that the trial court erred in allowing the
State to introduce the portion of Exhibit 23 which recorded a
phone call Wilson made after being left alone in the police
interview room. Appellant argues that this recording violates
Georgia's Eavesdropping Statute, OCGA §
16-11-62. Pretermitting the issue of whether
Appellant has standing to contest the admission of Exhibit
we find that the trial court did not err in overruling
Appellant's objection because Wilson did not have an
expectation of privacy at the time the call was made.
Eavesdropping Statute provides that "[n]o evidence
obtained in a manner which violates any of the provisions of
[the Eavesdropping Statute] shall be admissible in any
[Georgia] court[.]" OCGA § 16-11-67. Our Supreme
Court has held that this prohibition includes the use of a
recording for impeachment purposes. Ransom v.
Ransom, 253 Ga. 656, 658 (1) (324 S.E.2d 437) (1985).
Under the former Eavesdropping Statute, it is unlawful for
"[a]ny person in a clandestine manner intentionally to .
. . record . . . the private conversation of another which
shall originate in any private place." OCGA §
16-11-62 (1) (2000). Furthermore, the Eavesdropping Statute
provides that it is unlawful to "record the activities
of another which occur in any private place and out of public
view" when recorded without the consent of the person
observed. OCGA § 16-11-62 (2) (2000). It also prohibits
"any other acts of a nature similar to those set out in
[the statute] which invade the privacy of another." OCGA
§ 16-11-62 (7) (2000).
analysis hinges upon whether Wilson was in a "private
place" while she was unaccompanied in a police interview
room. Former OCGA § 16-11-60 (3)defines "'private
place' [as] a place where one is entitled reasonably to
expect to be safe from casual or hostile intrusion or
surveillance." Our Supreme Court has "looked to
Fourth Amendment jurisprudence as a guide when interpreting
the scope of privacy protected by [former] OCGA §
16-11-62." (Citations and footnote omitted.)
State v.Cohen, 302 Ga. 616, 629 (2) (b)
(807 S.E.2d 861) (2017). In doing so, the court in
Cohen noted that
the application of the Fourth Amendment depends on whether
the person invoking its protection can claim a
"justifiable," a "reasonable," or a
"legitimate expectation of privacy that has been
invaded." This inquiry normally embraces two discrete
questions. The first is whether the individual, by his
conduct, has exhibited an actual (subjective) expectation of
privacy - whether the individual has shown that he seeks to
preserve something as private. The second question is whether
the individual's subjective expectation of privacy is one
that society is prepared to recognize as ...