(Code 1981, §16-5-90, enacted by Ga. L. 1993, p. 1534, § 1; Ga. L. 1998, p. 885, § 1; Ga. L. 2000, p. 1283, § 1.)
Editor's notes.- Ga. L. 1998, p. 885, § 4, not codified by the General Assembly, provides that the 1998 amendment was applicable to conduct occurring or allegedly occurring on or after July 1, 1998.
Law reviews.- For annual survey article discussing tort law, see 51 Mercer L. Rev. 461 (1999). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For article, "Family Violence and Military Procedures in Georgia: An Introduction for Non-Military Lawyers," see 7 Ga. St. B. J. 16 (2001).
JUDICIAL DECISIONS
Constitutionality.
- O.C.G.A. § 16-5-90 is not unconstitutionally vague or overbroad. Johnson v. State, 264 Ga. 590, 449 S.E.2d 94 (1994).
"Surveillance" defined.
- Although O.C.G.A. § 16-5-90(a) failed to define the term "surveillance," the term was readily understood by people of ordinary intelligence as meaning a close watch kept over someone or something. Accordingly, the indictment put the defendant on notice that driving to, parking at, and sitting outside the victim's residence constituted "surveillance." Jones v. State, 310 Ga. App. 705, 713 S.E.2d 895 (2011).
Amendments.
- When defendant's indictment, under O.C.G.A. § 16-5-90(a), prohibiting aggravated stalking, referenced instances of defendant's stalking behavior against the victim occurring within a single week, these acts evinced a pattern of prohibited behavior criminalized by the amended version of § 16-5-90(a), so the amendment did not render defendant's indictment void. Daker v. Williams, 279 Ga. 782, 621 S.E.2d 449 (2005).
When O.C.G.A. §§ 16-5-90 and16-5-91, regarding aggravated stalking, were amended without including a savings clause, before a final judgment was entered on defendant's convictions under the statutes, this did not invalidate those convictions because defendant was convicted of twice contacting the victim at the victim's home in violation of a condition of pretrial release, to harass and intimidate the victim, which was a crime both under the statutes' old version and under their amended version; under the amended statutes, aggravated stalking was committed when a person, "in violation of a condition of pretrial release 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." Daker v. Williams, 279 Ga. 782, 621 S.E.2d 449 (2005).
Jurisdiction.
- Family Violence Act, O.C.G.A. § 19-13-1 et seq., gave Georgia courts jurisdiction over a nonresident only if the act with which the nonresident was charged met the requirements of O.C.G.A. § 9-10-91(2), (3); further, the conduct giving rise to the offense occurred when the maker of the call spoke into the telephone; a parent's daily calls to Georgia from another state to speak to the parent's child or when the parent made the calls that allegedly threatened and harassed the other parent did not confer jurisdiction in Georgia. Anderson v. Deas, 279 Ga. App. 892, 632 S.E.2d 682 (2006).
Venue properly established.
- Trial court did not err in denying the defendant's motion for a directed verdict after a jury found the defendant guilty of aggravated stalking in violation of O.C.G.A. § 16-5-91(a) because the evidence authorized the jury to find that venue in Lowndes County was properly established; the victim and the victim's family resided in Lowndes County, and the victim's mother testified that the defendant had sent the letter to their residence and that the letter was retrieved from the mailbox at their residence. Bowen v. State, 304 Ga. App. 819, 697 S.E.2d 898 (2010).
Statute does not create private cause of action.
- Although O.C.G.A. § 16-5-90 establishes the public policy of the state, nothing in its provisions creates a private cause of action in tort in favor of the victim. Troncalli v. Jones, 237 Ga. App. 10, 514 S.E.2d 478 (1999); Hopkinson v. Hopkinson, 239 Ga. App. 518, 521 S.E.2d 453 (1999).
Sufficiency of indictment.
- Trial counsel was not ineffective in failing to file a motion to dismiss an indictment that charged the defendant with aggravated stalking in violation of O.C.G.A. § 16-5-91(a), although the language used did not mention that the defendant's actions were intended to "intimidate" the victim, as such was implicit in the indictment where acts in violation of that statute which were allegedly done unlawfully were inferred to have been done for the purpose of harassing and intimidating and the definition of "harassing and intimidating" was singular pursuant to O.C.G.A. § 16-5-90(a)(1). Phillips v. State, 278 Ga. App. 198, 628 S.E.2d 631 (2006).
Trial court did not err in denying the defendant's motion in arrest of judgment as to the stalking convictions charged in the accusation because the defendant waived the defendant's right to seek greater specificity in the form of the indictment and was precluded from resurrecting the defendant's challenge to the indictment in the guise of a motion in arrest of judgment. Kaufman v. State, 344 Ga. App. 347, 810 S.E.2d 585 (2018).
Harassing and intimidating conduct required.
- Defendant's single violation of a permanent protective order was insufficient to prove aggravated stalking in violation of O.C.G.A. § 16-5-91(a), which required a showing of a pattern of harassing and intimidating conduct as defined in the simple stalking statute, O.C.G.A. § 16-5-90(a)(1). State v. Burke, 287 Ga. 377, 695 S.E.2d 649 (2010).
Evidence was sufficient to support the defendant's conviction for aggravated stalking of the defendant's former live-in girlfriend, O.C.G.A. § 16-5-91(a), because the defendant arrived unannounced at her apartment without coordinating with the Sheriff's Department after the defendant was explicitly informed that the defendant was required to contact them to assist in retrieving the defendant's property. The defendant's ambush appearance could be found harassing and intimidating based on the defendant's past threatening and physically abusive conduct. Ordelt v. State, 340 Ga. App. 258, 797 S.E.2d 167 (2017).
Evidence that the respondent had taken pictures and made negative comments when the petitioner had company or contractors at the respondent's home, had constantly watched the petitioner's family and documented the petitioner's comings and goings, had filed hundreds of reports against the petitioner's family, and had followed the petitioner and the petitioner's son through town was sufficient to show that the respondent had surveilled or contacted the petitioner without the petitioner's consent to harass and intimidate the petitioner and, thus, supported the issuance of the protective order. Little v. Booker, 346 Ga. App. 305, 816 S.E.2d 148 (2018).
Attempt to commit stalking a crime.
- Stalking is not "in essence a common law assault"; while the crimes may overlap in some circumstances, the rationale for not punishing an attempted assault does not apply to an attempted stalking which is the attempt to follow, place under surveillance, or contact another person; reversing Rooks v. State, 217 Ga. App. 643, 458 S.E.2d 667 (1995). State v. Rooks, 266 Ga. 528, 468 S.E.2d 354 (1996).
Aggravated stalking based on single violation of protective order.
- Under the precedents existing at the time of a petitioner's first habeas petition, a claim that the petitioner could not be convicted of aggravated stalking based solely on a single violation of a protective order could have been raised based on the language of O.C.G.A. §§ 16-5-90(a)(1) and16-5-91(a); therefore, the petitioner's second petition was barred by O.C.G.A. § 9-14-51. State v. Cusack, 296 Ga. 534, 769 S.E.2d 370 (2015).
Publishing posts on website was not "contact" with the victim.
- Defendant's stalking conviction based on the defendant's publishing antagonistic posts about the victim on the defendant's own website was reversed because the publication of commentary directed only to the public generally did not amount to "contact" with the victim as that term was used in O.C.G.A. § 16-5-90(a)(1). Chan v. Ellis, 296 Ga. 838, 770 S.E.2d 851 (2015).
Use of same evidence in two prosecutions was double jeopardy.
- Defendant was prosecuted twice for stalking when the state, with a few exceptions, relied on almost exactly the same evidence to prove the defendant's alleged harassing and intimidating course of conduct at the trials for the stalking and aggravated stalking, with only the additional evidence concerning violation of the no-contact order and an encounter with the victim's family during the second trial. Ward v. State, 351 Ga. App. 490, 831 S.E.2d 199 (2019), cert. denied, No. S20C0004, 2020 Ga. LEXIS 192 (Ga. 2020).
Evidence sufficient for conviction.
- See Hooper v. State, 223 Ga. App. 515, 478 S.E.2d 606 (1996); Hall v. State, 226 Ga. App. 380, 487 S.E.2d 41 (1997); Jerusheba v. State, 226 Ga. App. 696, 487 S.E.2d 465 (1997).
There was sufficient evidence to convict defendant of stalking; given defendant's history of violence toward the victim, the defendant's spouse, a jury could have found that defendant's actions at the health center, of following the victim in defendant's vehicle after the victim left the center, yelling at the victim, impeding the victim's movement, forcing the victim into oncoming lanes of traffic, and, on several occasions, bumping the victim's car, were intended to, and did, harass or intimidate the victim. Johnson v. State, 260 Ga. App. 413, 579 S.E.2d 809 (2003).
Evidence was sufficient to support defendant's conviction on a charge of aggravated stalking, as the evidence showed that defendant, without consent, sought to harass and intimidate defendant's former love interest, and that in order to do so, defendant violated a judicial order to stay away from defendant's former love interest, defendant contacted the former love interest by continuously telephoning the former love interest, and defendant appeared at the former love interest's apartment uninvited. Stevens v. State, 261 Ga. App. 73, 581 S.E.2d 685 (2003).
Evidence was sufficient to support defendant's conviction for stalking, in violation of O.C.G.A. § 16-5-90(a)(1), because defendant admitted that defendant went to a former love interest's place of employment and home, and the love interest did not consent to either visit and was frightened by both; defendant's intent to harass or intimidate was inferred from the circumstances, as defendant had a prior physical abuse history with the victim, it was late and he intended to contact the victim when the victim was alone, and threatened to kill the victim and the victim's spouse. Thomas v. State, 276 Ga. App. 79, 622 S.E.2d 421 (2005).
Trial court did not err in denying the defendant's motion for a directed verdict of acquittal as to two aggravated stalking charges, despite claims that: (1) the state failed to prove the defendant acted for the purpose of harassing and intimidating the victim; and (2) the defendant lacked the requisite intent to commit the crimes, as the former argument attacked the credibility of the witnesses, which the appeals court did not weigh, and, regarding the latter argument, the intention with which an act was committed was a jury question. Chatham v. State, 280 Ga. App. 695, 634 S.E.2d 856 (2006).
Aggravated stalking conviction was upheld on appeal, supported by sufficient evidence that the defendant continued to harass the victim and the victim's family, specifically, the victim's two daughters, despite a no contact order made part of the defendant's bond conditions, and that when coupled with a history of doing such, the defendant's actions harassed and intimidated the victims and placed them in fear for their safety. Hennessey v. State, 282 Ga. App. 857, 640 S.E.2d 362 (2006).
Appeals court rejected the defendant's claim that the state failed to show any intent to harass or intimidate the victim as the evidence demonstrated that the defendant violated an order prohibiting any contact with the victim by persistently calling the victim, sending the victim cards, showing up at the victim's home, and leaving the victim notes; moreover, given the history of these persistent, disturbing actions, and the defendant's refusal to leave the victim alone, a rational jury could have found beyond a reasonable doubt that such acts were intended to harass and intimidate the victim. Patterson v. State, 284 Ga. App. 780, 645 S.E.2d 38 (2007).
Evidence supported the defendant's stalking conviction because sufficient evidence showed that the defendant, over the victim's objection, followed and surveilled the victim while the victim was at work, with no valid reason for being anywhere near there, and because that caused the victim emotional distress and fear. Kilby v. State, 289 Ga. App. 457, 657 S.E.2d 567 (2008).
Testimony from a stalking victim that when the victim was contacted by the defendant by phone and realized that the defendant was not in jail the victim's heart dropped, and the victim became fearful of going outside because of threats the defendant made against the victim, established that the defendant was harassing and intimidating the victim as defined in O.C.G.A. § 16-5-90(a)(1). Davidson v. State, 295 Ga. App. 702, 673 S.E.2d 91 (2009).
There was sufficient evidence to support the defendant's conviction for stalking in violation of O.C.G.A. § 16-5-90(a)(1) as the defendant contacted the victim's employer to accuse the victim of making sexual suggestions, and the defendant also contacted the police in connection with an alleged hit-and-run by the victim in order to intentionally send a message to the victim; the evidence showed that the defendant acted in that way with the intent to harass or intimidate the victim. Harvill v. State, 296 Ga. App. 453, 674 S.E.2d 659 (2009).
Convictions of arson, O.C.G.A. § 16-7-60(a), and stalking, O.C.G.A. § 16-5-90, were proper because the circumstantial evidence presented at trial included a kerosene-soaked, partially burned, mailing label addressed to the defendant found at the scene of a fire at the victim's home; the jury was entitled to infer from this evidence that the defendant left a virtual "calling card." The state also presented evidence of the defendant's escalating obsession with the victim and the threatening phone calls the defendant made to the victim shortly before the fire. Ransom v. State, 297 Ga. App. 902, 678 S.E.2d 574 (2009).
Evidence that defendant, the victim's eighth grade teacher, repeatedly attempted to communicate with the victim after the victim broke up with the defendant, including showing up at the victim's work and gym, leaving signs posted along the road the victim used, and sending the victim many text messages was sufficient to convict the defendant of stalking under O.C.G.A. § 16-5-90(b). Placanica v. State, 303 Ga. App. 302, 693 S.E.2d 571 (2010).
Trial court did not err in denying the defendant's motion for a directed verdict after a jury found the defendant guilty of aggravated stalking in violation of O.C.G.A. § 16-5-91(a) because evidence of the defendant's continuing unauthorized contacts with the victim and repeated violations of restraining orders established a pattern of harassing behavior; a permanent restraining order had been entered that prohibited the defendant from having any contact with the victim, but the defendant violated that order by sending a letter to the victim that caused the victim to fear for the victim's own family and that of the victim's family. Bowen v. State, 304 Ga. App. 819, 697 S.E.2d 898 (2010).
When the victim obtained a protective order against the defendant after the defendant forced the victim into a house and ripped the engagement ring off the victim's finger, the victim's brake lines were also cut three times and the victim's tires were slashed; a surveillance video was played at trial and the victim identified the man bending over the tires as defendant; thus, the evidence was sufficient for the jury to convict the defendant of two counts of aggravated stalking under O.C.G.A. §§ 16-5-90(a) and16-5-91 and criminal trespass to property. Reed v. State, 309 Ga. App. 183, 709 S.E.2d 847 (2011).
Sufficient evidence supported the defendant's conviction for aggravated stalking based on the defendant going to the victim's home uninvited and then physically attacking the victim when the victim refused the defendant's admittance to the victim's home, which followed several other incidents of unwanted contact. Gates v. State, 322 Ga. App. 383, 750 S.E.2d 683 (2013).
Evidence that the defendant repeatedly went to the victim's home despite the victim's admonitions to stop, that the defendant did so more than one time after receiving the criminal trespass warning from a police officer, and that the defendant's unceasing attempt to watch, communicate with, or harass the victim placed the victim in emotional distress was sufficient to support the defendant's conviction for stalking. Austin v. State, 335 Ga. App. 521, 782 S.E.2d 308 (2016).
Sufficient evidence supported the defendant's conviction for stalking the defendant's former girlfriend based on repeatedly going to her parents' home, where she lived, despite admonitions and a criminal-trespass warning, incessantly calling and texting her, and the defendant's unceasing attempts to watch, communicate with, and harass her, which placed her in emotional distress sufficient to put her in fear for her safety. Kaufman v. State, 344 Ga. App. 347, 810 S.E.2d 585 (2018).
Evidence insufficient for conviction.
- Evidence was insufficient to support a defendant juvenile's adjudication of delinquency for stalking as: (1) a truck in which the defendant juvenile was riding drove into a deputy sheriff's driveway and sat in front of the house for a minute or a minute and a half; (2) neither the deputy sheriff nor the deputy sheriff's spouse testified that they were afraid or that this caused them any emotional distress; and (3) there was no evidence that the deputy sheriff or the deputy sheriff's spouse were harassed or intimidated. In the Interest of C.C., 280 Ga. App. 590, 634 S.E.2d 532 (2006).
Trial court erred in convicting the defendant of stalking because the state failed to establish a course of conduct or pattern of behavior required by O.C.G.A. § 16-5-90(a)(1); the defendant's act of following the victim in the victim's vehicle to a store and watching the victim going into and out of the store fell short of demonstrating the requisite pattern of harassing and intimidating behavior. Autry v. State, 306 Ga. App. 125, 701 S.E.2d 596 (2010).
Imposition of a stalking protective order against the former boyfriend was inappropriate under O.C.G.A. §§ 16-5-90(a)(1),16-5-94(e), and19-13-3(c) because the evidence admitted at the hearing was clearly insufficient to establish the necessary "pattern" of harassing and intimidating behavior against the former girlfriend. Even assuming that an incident in the parking lot constituted the requisite contact of an intimidating or harassing nature, the only other evidence presented was that the parties would sometimes be in the same place at the school, which was a place that both had the right to be. Ramsey v. Middleton, 310 Ga. App. 300, 713 S.E.2d 428 (2011).
Defendant's conviction for aggravated stalking was reversed because the state failed to prove that there was actual contact with the victim, whether through a third party or otherwise, because the purported contact was a letter written by the defendant and given to the victim's attorney at the district attorney's office; thus, there was no evidence that the defendant contacted the victim at a place occupied by the victim. Seibert v. State, 321 Ga. App. 243, 739 S.E.2d 91 (2013).
Evidence of victim's fear for safety insufficient.
- Defendant's stalking conviction under O.C.G.A. § 16-5-90 was reversed because the state failed to present sufficient evidence that the defendant's girlfriend was placed in reasonable fear for her safety; although she was "a little bit" afraid of the defendant during a previous argument, she was "blackout drunk" on the night the defendant texted her repeatedly and waited outside her home for her to come home, and she testified she did not remember the defendant being at her home. Moran v. State, 334 Ga. App. 765, 780 S.E.2d 529 (2015).
Summary judgment on stalking denied.
- Even though the appellee admitted to committing certain acts which satisfied some of the elements under O.C.G.A. § 16-5-90, based on a denial of the intent required under the statute, no abuse resulted in denying the appellant injunctive relief and setting the case for a bench trial. Anderson v. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007).
Evidence sufficient for protective order.
- Entry of a protective order in favor of a resident against a neighbor was supported by evidence that the neighbor had blared loud music at the resident's home, put a hand in the resident's trousers or grabbed the resident's crotch and made lewd motions towards the resident, and once gestured in this way towards the resident's child and a visitor. De Louis v. Sheppard, 277 Ga. App. 768, 627 S.E.2d 846 (2006).
Protective order against a former wife was warranted under the Family Violence Act, O.C.G.A. § 19-13-1, because there was sufficient evidence that she committed the predicate act of stalking her former husband under O.C.G.A. § 16-5-90 by hiring a detective to follow him, by harassing him at his place of work, and by sending him threatening text messages. Quinby v. Rausch, 300 Ga. App. 424, 685 S.E.2d 395 (2009).
Evidence was sufficient under O.C.G.A. § 16-5-90 to support the entry of a stalking twelve-month protective order pursuant to O.C.G.A. § 16-5-94(d) against the defendant because the defendant contacted the victim via abusive emails numerous times and placed the victim under surveillance on several occasions without the victim's consent, and the frequency and nature of the defendant's contact and surveillance was such that the trial court could conclude that it was done for the purpose of harassing and intimidating the victim; there was also sufficient evidence that the contact and surveillance put the victim in reasonable fear for the victim's safety. Thornton v. Hemphill, 300 Ga. App. 647, 686 S.E.2d 263 (2009), cert. denied, No. S10C0413, 2010 Ga. LEXIS 342 (Ga. 2010).
Trial court did not err in granting a protective order under O.C.G.A. § 16-5-90(a)(1) against a foster parent who had placed a family under extensive surveillance through a combination of internet searches and third party observations of the family's home and contacted law enforcement, causing groundless investigations. The foster parent was not immune from liability under O.C.G.A. § 19-7-5(f) because the foster parent had not received any information that a child in the home had been subjected to abuse. Owen v. Watts, 307 Ga. App. 493, 705 S.E.2d 852 (2010).
There was sufficient evidence to support the trial court's entry of a stalking protective order against the respondent since the trial court heard evidence regarding several instances in which the respondent engaged in harassing or intimidating conduct against the petitioner such as when the respondent followed the petitioner and the petitioner's children home from school, when the respondent was seen near the petitioner's home after the tires on the petitioner's car were slashed, and when the respondent contacted the children's school without permission. Oliver v. Field, 353 Ga. App. 891, 840 S.E.2d 124 (2020).
Evidence insufficient for protective order.
- Because a fire chief's actions taken against certain fire department employees did not constitute stalking under O.C.G.A. § 16-5-90(a)(1), but were committed for the legitimate purpose of physical training and arose during legitimate training activities, the issuance of a permanent restraining order against the fire chief for those activities amounted to an abuse of discretion. Pilcher v. Stribling, 282 Ga. 166, 647 S.E.2d 8 (2007).
Trial court abused the court's discretion by issuing a protective order against a lessee because a lessor did not meet the burden under O.C.G.A. §§ 16-5-94(e) and19-13-3(c) of showing that the lessee committed the offense of stalking, O.C.G.A. § 16-5-90(a)(1); other than the lessor's own testimony, the lessor offered no proof that the lessee and a former business associate were acting in concert against the lessor or that their alleged joint activities were of the type that would support a protective order based on the offense of stalking. Martin v. Woodyard, 313 Ga. App. 797, 723 S.E.2d 293 (2012).
Trial court's order continuing an ex parte temporary protective order against an ex-husband was reversed because the trial court lacked authority to extend the temporary protective order since the trial court failed to comply with the hearing requirements of O.C.G.A. § 19-13-3(c) in any substantive way as the court questioned the ex-wife briefly, but the ex-wife was not sworn in as a witness, and the ex-husband did not have the opportunity to cross-examine the wife. White v. Raines, 331 Ga. App. 853, 771 S.E.2d 507 (2015).
Evidence insufficient for protective order protecting priest against parishioner.
- Trial court abused the court's discretion by granting a priest a stalking protective order against a former church organist as the priest never indicated fear for the priest's safety as a result of the former organist's disruptive and interfering behavior. Rather, the priest indicated weariness with regard to the former organist's behavior and that the behavior was interfering with the life of the parish, which was insufficient to justify the issuance of the protective order. Sinclair v. Daly, 295 Ga. App. 613, 672 S.E.2d 672 (2009).
Determining another incident of stalking.
- Given that the defendant engaged for several years in a consistent pattern of abuse and harassment against defendant's daughter, a rational trier of fact could find that defendant's surveillance of her on another incident date evidenced yet another abusive, harassing act. Benton v. State, 256 Ga. App. 620, 568 S.E.2d 770 (2002).
Revocation of the bond of a person charged with stalking lies within the discretion of the trial judge; however, because a bond revocation involves the deprivation of one's liberty the decision must comport with at least minimal state and federal due process requirements. Hood v. Carsten, 267 Ga. 579, 481 S.E.2d 525 (1997).
Protective orders.
- Publishing or discussing the former girlfriend's medical condition with others was not stalking since it did not threaten her or her family's safety; therefore, the prohibition in the protective order exceeded the statutory scope of authority. Collins v. Bazan, 256 Ga. App. 164, 568 S.E.2d 72 (2002).
Evidence that defendant, over the high school student's objections, repeatedly placed the student under surveillance, took pictures of the student, and shouted at the student was sufficient to show defendant was stalking the student and justified the entry of a protective order against defendant. Johnson v. Smith, 260 Ga. App. 722, 580 S.E.2d 674 (2003).
Protective order based on the anti-stalking statute, O.C.G.A. § 16-5-90(a)(1), was not supported by sufficient evidence where statements made by the child off the record to the trial court could not be used to uphold the trial court's decision; similarly, a letter written to the trial court by the child constituted hearsay without probative value, and the testimony of an officer and the parent was rank hearsay that lacked any probative value. Allen v. Clerk, 273 Ga. App. 896, 616 S.E.2d 213 (2005).
In granting a neighbor a three-year protective order against the defendant under O.C.G.A. §§ 16-5-90 and16-5-94, the trial court exceeded the court's authority in banning the defendant from the defendant's residence for three years because this would prevent the defendant from going to the defendant's home even when the neighbor was not at the neighbor's home; the stalking statute protected people, not places. Bruno v. Light, 344 Ga. App. 799, 811 S.E.2d 500 (2018).
Violation of protective order.
- There was sufficient evidence to support convictions for stalking in violation of O.C.G.A. § 16-5-90 and aggravated stalking under O.C.G.A. § 16-5-91(a) because defendant contacted the defendant's love interest in violation of a temporary restraining order, with the requisite intent, by sending two letters that the victim received after the protection order was granted, and the state established that defendant's conduct was for the purpose of harassing and intimidating the love interest; a rational jury could have found beyond a reasonable doubt that such acts were intended to harass and intimidate and reasonably placed the victim in fear for the victim's safety. Maskivish v. State, 276 Ga. App. 701, 624 S.E.2d 160 (2005).
Divorce order provision satisfied injunction requirement on stalking.
- Georgia's statutory requirements for injunctions provides that an injunction shall be specific in terms and shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; to refuse to treat pertinent language in a divorce order as an injunction because it is not specifically labeled as such would impermissibly elevate form over substance. State v. Davis, 339 Ga. App. 214, 793 S.E.2d 507 (2016).
Divorce order provision satisfied injunction requirement.
- Trial court erred in dismissing the charge of aggravated stalking against the defendant because the provision in the divorce order limiting the defendant's contact with the defendant's ex-spouse and their older child for which the defendant was accused of violating constituted a permanent injunction within the meaning of O.C.G.A. § 16-5-91(a). State v. Davis, 339 Ga. App. 214, 793 S.E.2d 507 (2016).
Merger.
- In a trial in which defendant was convicted of two counts of stalking, in violation of O.C.G.A. § 16-5-90(a)(1), they did not merge because they were based on factually distinct acts that occurred in different places and at different times; defendant had parked at the victim's place of employment and then a short time later, parked at the victim's home. Thomas v. State, 276 Ga. App. 79, 622 S.E.2d 421 (2005).
Jury instruction that omitted "intimidating."
- Jury instruction on the offense of aggravated stalking in violation of O.C.G.A. § 16-5-91(a), which omitted the word "intimidating" from the charge, was not error because the trial court defined the term "harassing" in accordance with the statutory definition of O.C.G.A. § 16-5-90(a)(1), and accordingly, the jury was informed of that element by way of definition; the omission was inconsequential and the charge, viewed as a whole, was not likely to mislead or confuse the jury. Phillips v. State, 278 Ga. App. 198, 628 S.E.2d 631 (2006).
Counsel not ineffective.
- Defendant's stalking convictions were upheld on appeal, given that trial counsel was not ineffective in failing to present the testimony from a second psychiatrist regarding the defendant's mental condition, as the defendant failed to show how testimony from a second psychiatrist would have aided the defense, and a request for recharge alone did not prove that the jury was confused on the issue of the defendant's mental condition or that counsel had not provided them with sufficient evidence concerning it. Albert v. State, 283 Ga. App. 79, 640 S.E.2d 670 (2006).
Defendant's ineffective assistance of counsel claim did not warrant a new trial in a prosecution for rape, kidnapping, aggravated stalking, and two counts of stalking; because of the limited nature of a challenged witnesses' trial testimony, defense counsel made a strategic decision not to seek recusal of the trial judge, who was the brother of the challenged witness, and counsel discussed with the defendant the reasons for not seeking recusal. Pirkle v. State, 289 Ga. App. 450, 657 S.E.2d 560 (2008).
Lack of record that oath was administered did not constitute reversible error.
- On appeal from a stalking conviction, because the record failed to show that the oath was not administered to the jury, no reversible error existed, and the appeals court had to presume that the jury was sworn. Benton v. State, 286 Ga. App. 736, 649 S.E.2d 793 (2007), cert. denied, No. S07C1825, 2007 Ga. LEXIS 753 (Ga. 2007).
Cited in Robinson v. State, 216 Ga. App. 816, 456 S.E.2d 68 (1995); Adkins v. State, 221 Ga. App. 460, 471 S.E.2d 896 (1996); Wilburn v. State, 223 Ga. App. 476, 477 S.E.2d 909 (1996); Daker v. State, 243 Ga. App. 848, 533 S.E.2d 393 (2000); Bogan v. State, 255 Ga. App. 413, 565 S.E.2d 588 (2002); Rawcliffe v. Rawcliffe, 283 Ga. App. 264, 641 S.E.2d 255 (2007); Louisyr v. State, 307 Ga. App. 724, 706 S.E.2d 114 (2011); Brooks v. State, 313 Ga. App. 789, 723 S.E.2d 29 (2012), cert. denied, No. S12C0974, 2012 Ga. LEXIS 1035 (Ga. 2012); Elgin v. Swann, 315 Ga. App. 809, 728 S.E.2d 328 (2012); Edgecomb v. State, 319 Ga. App. 804, 738 S.E.2d 645 (2013); Crumity v. State, 321 Ga. App. 768, 743 S.E.2d 455 (2013).
RESEARCH REFERENCES
ALR.
- Validity, construction, and application of stalking statutes, 29 A.L.R.5th 487.
Validity of state stalking statutes, 6 A.L.R.7th 6.