author: ANDREWS, Presiding Judge.

text:
    A15A2411.
    WATKINS v. THE STATE.
    (784 SE2d 11)
   ANDREWS, Presiding Judge.

Following a jury trial, the Superior Court of Bibb County entered judgments of conviction against Winston Watkins for one count of aggravated child molestation (OCGA § 16-6-4 (c)) and three counts of child molestation (OCGA § 16-6-4 (a) (1)). The trial court denied Watkins’ motion for new trial as amended. Watkins appeals, raising a multitude of errors. For the reasons that follow, we affirm in part, vacate in part, and remand for resentencing on Watkins’ convictions for child molestation.

1. First, Watkins argues that the State failed to prove his guilt beyond a reasonable doubt. We do not agree.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Bradford v. State, 327 Ga. App. 621 (760 SE2d 630) (2014). Relevant to this case, a person commits aggravated child molestation “when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c). See also OCGA § 16-6-2 (a) (1). In addition, child molestation occurs when a person “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1).

So viewed, evidence revealed that the ten-year-old female victim first met Watkins when he moved into her neighborhood on or about June 29, 2011. The two spoke when they saw each other, and the victim would visit Watkins at his residence. A neighbor also reported seeing Watkins kissing the victim on his front porch. In addition, Watkins’ roommate claimed that the victim was at Watkins’ residence “more than what she supposed to be” and that her constant presence “don’t look too good.”

At first, Watkins would hug the victim when the two met. However, Watkins began to touch the victim’s breasts after hugging. He also began to touch her “private part area” both over and under her clothing. In addition, Watkins kissed the victim’s “private area” as she lay naked on Watkins’ bed and showed the victim his penis. Watkins also asked the victim to engage in sexual intercourse, but the victim declined. The touching happened on more than one occasion and occurred in Watkins’ bedroom, which the victim was later able to describe to investigators.

The victim was scared to tell her mother about the abuse because Watkins told the victim “he’s gonna tell my mom I let him do it.” Ultimately, the victim asked her mother to call police on January 1, 2012, and the victim disclosed the abuse when her mother asked her why she wanted to talk to police. For his part, Watkins denied that the victim had ever been inside his residence and that he had ever touched the victim inappropriately.

In sum, we conclude that the evidence adduced at trial was sufficient for a rational trier of fact to find Watkins guilty beyond a reasonable doubt of the crimes for which he was convicted, including aggravated child molestation (for placing his mouth on the victim’s vagina (Count 1)) and child molestation (for touching the victim’s vagina (Count 2) and breasts (Count 3) and exposing himself to the victim (Count 4)). Jackson, 443 U. S. 307; Bradford, 327 Ga. App. 621; Malone v. State, 277 Ga. App. 694, 696 (1) (627 SE2d 378) (2006) (testimony of a child molestation victim alone sufficient to authorize jury to find defendant guilty).

2. Next, Watkins contends the trial court erred in denying his plea in abatement because the indictment did not allege the date of Watkins’ crimes with “sufficient certainty.” Specifically, Watkins appears to argue that the State could have alleged the dates of Watkins’ crimes more specifically than the June 30, 2011 to January 1, 2012 time frame contained in the indictment. We are not persuaded.

OCGA § 17-7-54 provides that an indictment must state with “sufficient certainty” the date of the alleged offense. See also State v. Layman, 279 Ga. 340, 341 (613 SE2d 639) (2005).

Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates.

O’Rourke v. State, 327 Ga. App. 628, 631-632 (2) (760 SE2d 636) (2014) (citing Layman, 279 Ga. at 340-341); Blanton v. State, 324 Ga. App. 610, 614 (2) (751 SE2d 431) (2013) (same). To that end, “[i]n meeting its burden of showing that it is unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates, the State is required to present some evidence and may not rely solely upon argument by counsel or mere speculation.” Blanton, 324 Ga. App. at 615 (2).

Here, the State satisfied its burden. In each count of the indictment, the State alleged that Watkins committed the crimes charged “between the 30th day of June, 2011, and the 1st day of January, 2012, the exact date of the offense being unknown to members of the Grand Jury....” In response, Watkins filed a plea in abatement arguing that “the indictment does not allege the dates of the alleged crimes with enough specificity and does not list the dates of the alleged crimes with sufficient particularity.” The trial court conducted an evidentiary hearing, during which the State presented testimony that Watkins moved into a residence in the victim’s neighborhood on June 30, 2011; that the victim disclosed to her mother, on January 1, 2012, that Watkins had been molesting her; that the molestation began after Watkins moved to the neighborhood; and that the victim had been unable to articulate a more specific time frame for the molestation. In addition, the trial court reviewed a recording of the victim’s forensic interview. At the conclusion of the hearing, the trial court observed that “[tjhere is nothing that I have seen in the interview or heard from the witnesses that leads me to believe [the State] could have done anything other than what they’ve done.” As a result, the trial court denied Watkins’ plea in abatement.

The evidence produced during the hearing, particularly the details concerning the date of Watkins’ arrival in the victim’s neighborhood, that the molestation began thereafter, and the date upon which the victim disclosed the molestation, confirmed that the State was “unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates.” See Blanton, 324 Ga. App. at 615-617 (2) (a). See also O’Rourke, 327 Ga. App. at 632 (2). Accordingly, we conclude that the trial court did not err in denying Watkins’ plea in abatement.

3. In several enumerations, Watkins argues that the trial court erroneously declined to give several proposed jury instructions on a variety of issues, including accidental touching and certain lesser included offenses. Again, we find no error.

It is axiomatic that “[a] requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.” McLean v. State, 291 Ga. 873, 877 (5) (a) (738 SE2d 267) (2012) (citing Stokes v. State, 281 Ga. 875, 877 (3) (644 SE2d 116) (2007)). We examine each proposed instruction in turn.

(a) Jury Charge No. 15. First, Watkins requested a jury instruction on accidental touching. However, to support an instruction on accident, “the defendant must admit to having committed an act that would constitute the crime charged.” Haynes v. State, 281 Ga.App. 81, 82 (2) (b) (635 SE2d 370) (2006). Therefore, “[t]he essence of the defense of accident is that the defendant’s act that otherwise would have been criminal was not done intentionally.” Id. at 82-83 (2) (b); Metts v. State, 210 Ga.App. 197, 198 (2) (435 SE2d 525) (1993). In this case, Watkins denied any touching occurred, accidental or otherwise. Accordingly, “[t]he theory of the case as submitted to the jury was that the molestation either happened or it did not — not that it happened by accident.” Haynes, 281 Ga. App. at 83 (2) (b). Because Watkins’ requested charge on accident “was not adjusted to the evidence, the trial court did not err in failing to give the requested charge.” Id. Compare Metts, 210 Ga. App. at 198 (2) (accident charge required where defendant claimed he may have touched victim inadvertently when sleeping in the same bed with victim).

(b) Jury Charge Nos. 16, 18, and 22-25. In a series of proposed charges, Watkins asked the trial court to instruct the jury concerning the victim’s delay in reporting the molestation, the victim’s motive for testifying, and various factors the jury should consider in evaluating the victim’s testimony. Watkins’ arguments that the trial court erred in declining to give these proposed charges are unavailing.

Each of Watkins’ proposed charges address the jury’s assessment of the victim’s credibility. “There is no error in refusing to give a requested charge where the applicable principles are fairly given to the jury in the general charge of the court.” Madison v. State, 329 Ga. App. 856, 869 (6) (766 SE2d 206) (2014). See also Gamble v. State, 291 Ga. 581, 582 (2) (731 SE2d 758) (2012) (“Atrial court does not abuse its discretion in refusing to give a jury charge in the exact language requested when the charge given substantially covers the correct principles of law.”). Here, the trial court instructed the jury that

[t]he jury must determine the credibility of the witnesses. In deciding this you may consider all of the facts and circumstances of the case, including the witnesses’ manner of testifying, their means and opportunity of knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, their interest or lack of interest in the outcome of the case, and their personal credibility as you observe it.

Moreover, the trial court instructed the jury on impeachment of a witness and the manner in which impeachment may be shown. Viewing the trial court’s jury charge as a whole, we conclude that the trial court properly instructed the jury on the factors it may consider in evaluating a witness’ credibility. See Gamble, 291 Ga. at 582 (2). Accordingly, because the trial court’s instructions substantially covered the correct principles of law, the trial court did not err in declining to give Watkins’ proposed charges on witness credibility. See id.; Madison, 329 Ga. App. at 869 (6).

(c) Jury Charge Nos. 19 and 20. Watkins also requested charges on the lesser included offenses of simple assault, simple battery, and sexual battery. “[Wjhere the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Madison, 329 Ga. App. at 869 (6). Pretermitting whether simple assault, simple battery, and sexual battery can ever be lesser included offenses of child molestation, see State v. Stonaker, 236 Ga. 1, 3 (222 SE2d 354) (1976), Madison, 329 Ga. App. at 869-870 (6) (a) and Rash v. State, 207 Ga. App. 585, 588 (6) (428 SE2d 799) (1993), Watkins’ proposed instructions were not tailored to the evidence in this case. At trial, Watkins denied any improper touching of the victim while the victim offered explicit testimony concerning Watkins’ actions. “Under this testimony, [Watkins] either committed an act of child molestation or he did not.” Ney v. State, 227 Ga. App. 496, 503 (4) (g) (489 SE2d 509) (1997). As a result, “[t]he evidence in this case offered the jury a choice between a completed crime or no crime.” Madison, 329 Ga. App. at 870 (6) (a). It follows that there was no error in declining to give the proposed instructions on certain lesser included offenses. See Haynes, 281 Ga. App. at 83 (2) (b).

(d) Jury Charge No. 26. Related to the charge of aggravated child molestation, Watkins also requested an instruction on the lesser included offense of child molestation. As noted in Divisions 3 (a) and (c), supra, Watkins alleged that no contact occurred between the victim and himself. Accordingly, Watkins’ requested charge was not adjusted to the evidence, and the trial court correctly declined to give the proposed instruction. See Madison, 329 Ga. App. at 869-870 (6) (a); Haynes, 281 Ga. App. at 83 (2) (b); Ney, 227 Ga. App. at 503 (4) (g).

4. Next, Watkins asserts that his conviction for child molestation (Count 2) should have merged into his aggravated child molestation conviction because the “conduct set out in both counts constitutes only one single act.” We are not persuaded.

Watkins’ argument necessarily “ignores the language of the indictment, which based each count on different conduct.” Carver v. State, 331 Ga. App. 120, 122 (4) (769 SE2d 722) (2015). Count 1 charged Watkins with aggravated child molestation “by placing his mouth on the vagina of [the victim].” Count 2 alleged Watkins committed child molestation “by touching the vagina of [the victim].” The victim revealed that on one occasion Watkins kissed her vagina as she lay naked on Watkins’ bed. See OCGA §§ 16-6-2 (a) (1), 16-6-4 (c). Additional trial testimony by the victim revealed that, on separate occasions, Watkins touched the victim’s vagina over and under her clothing. See OCGA § 16-6-4 (a) (1). Because each count of the indictment charged Watkins with a separate and distinct crime, his convictions for those crimes did not merge for purposes of sentencing. See Carver, 331 Ga. App. at 122 (4); Young v. State, 327 Ga. App. 852, 861 (6) (a) (761 SE2d 801) (2014); Cody v. State, 324 Ga. App. 815, 827 (5) (b) (752 SE2d 36) (2013); Smith v. State, 320 Ga. App. 408, 413 (2) (a) (740 SE2d 174) (2013); Metts v. State, 297 Ga. App. 330, 336 (5) (677 SE2d 377) (2009).

5. Finally, Watkins contends that the trial court erred in sentencing him on each of his convictions for child molestation to a term of confinement rather than exercising discretion and imposing split sentences. See OCGA § 17-10-6.2; Spargo v. State, 332 Ga. App. 410, 411-412 (773 SE2d 35) (2015). We agree.

Prior to trial, the State filed a notice of intent to produce Watkins’ prior convictions in aggravation of sentencing. Watkins’ prior convictions included possession of drugs by an inmate, aggravated assault, terroristic threats, entering an automobile, and burglary. Based upon these convictions, the trial court sentenced Watkins as a recidivist to life in prison on Count 1 (aggravated child molestation), 20 years in confinement on Count 2 (child molestation) consecutive to Count 1, and 20 years in confinement on Counts 3 and 4 (child molestation) concurrent with Count 2. See OCGA § 17-10-7 (c).

Watkins asserts that OCGA § 17-10-6.2 required the trial court to sentence him on the three child molestation convictions to a split sentence of confinement and probation. Our analysis begins with OCGA § 16-6-4 (b) (1), which provides that “a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7.” (Emphasis supplied.) Next, OCGA § 17-10-7 (c) provides:

... [A]ny person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

However, because Watkins had no prior conviction for child molestation, Watkins’ sentences were also governedby OCGA § 17-10-6.2 (b), which states, in part, that “notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense.” (Emphasis supplied.) As a result, the General Assembly has mandated that in cases in which a defendant is convicted of a “sexual offense,” the trial court must include a term of probation in its sentence except in certain circumstances. See OCGA § 17-10-6.2 (b), (c); Spargo, 332 Ga. App. at 411; Clark v. State, 328 Ga. App. 268, 269, 270 (1) (761 SE2d 826) (2014); New v. State, 327 Ga. App. 87, 108 (5) (755 SE2d 568) (2014).

As we have noted recently, “[OCGA § 17-10-6.2] authorizes the trial court to issue a split sentence that includes at least five years of imprisonment and at least one year of probation, for a total of no more than twenty years.” Clark, 328 Ga. App. at 270 (1). Because the trial court failed to impose a split sentence, we vacate Watkins’ sentences for the three child molestation convictions and remand for resentencing. See Spargo, 332 Ga. App. at 411; Clark, 328 Ga. App. at 270 (1).

Decided March 10, 2016.

Robert M. Bearden, Jr., for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Branch and Peterson, JJ., concur.

       In his enumeration, Watkins specifically asserts that the State did not “prove [Watkins] guilty of any crime beyond a reasonable doubt.” However, the argument in support of the enumeration purports to allege the “general grounds” as well. See OCGA §§ 5-5-20, 5-5-21. These are separate legal arguments with different standards for consideration. See Copeland v. State, 327 Ga. App. 520, 524, 525 (2) (759 SE2d 593) (2014). Furthermore, “[t]he decision to grant a new trial on grounds that the verdict is strongly against the evidence is one that is solely in the discretion of the trial court.” (Citations and punctuation omitted.) Batten v. State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014) (citing Willis v. State, 263 Ga. 597 (1) (436 SE2d 204) (1993)). Accordingly, we will only “review the case under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” Id.

       We note that the State did not address this alleged error in its appellee’s brief.

       Although Watkins objected to the admission of certified copies of the first three convictions, the trial court admitted each over objection. Those rulings are not assigned as error and, as a result, we need not review them. Watkins did not object to the admission of the last two convictions.

       “Sexual offense,” by definition, includes child molestation. OCGA § 17-10-6.2 (a) (5). The definition does not include aggravated child molestation.

       See OCGA § 17-10-6.2 (a).

       Indeed, a sentence totaling 20 years would be required under the sentencing in this case. See OCGA § 17-10-7 (c). See also New, 327 Ga. App. at 109 (Ray, J., concurring); Jefferson v. State, 309 Ga. App. 861, 865 (2) (711 SE2d 412) (2011) (“although OCGA § 17-10-7 (c) prohibits parole, it does not dispense with the trial court’s discretion to probate or suspend part of a sentence”) (punctuation omitted), overruled in part on other grounds, Maddox v. State, 322 Ga. App. 811 (746 SE2d 280) (2013).

       Watkins’ life sentence for the crime of aggravated child molestation is affirmed. See OCGA §§ 16-6-4 (c), (d) (1); 17-10-7 (c).


source: Caselaw Access Project

license: Public Domain

text:
    A15A1774.
    SNEIDERMAN v. THE STATE.
    (784 SE2d 18)
   ANDREWS, Presiding Judge.

Andrea Sneiderman appeals from the judgment of conviction entered on jury verdicts finding her guilty of hindering the apprehension of a criminal in violation of OCGA § 16-10-50 (Count 1); concealing a material fact from the Dunwoody Police Department (DPD) in violation of OCGA § 16-10-20 (Count 2); three counts of making a false statement to the DPD in violation of OCGA § 16-10-20 (Counts 3, 8, and 10); and perjury in violation of OCGA § 16-10-70 (Count 6). The charges stemmed from the November 2010 shooting death of Sneiderman’s husband; Sneiderman’s conduct during the DPD’s investigation of the fatal shooting; and Sneiderman’s testimony during the February 2012 murder trial of Hemy Neuman, who was her workplace supervisor at the time of the shooting. At the murder trial, Neuman admitted that he had an affair with Andrea Sneiderman; that he planned to murder her husband; and that he shot and killed her husband, Russell Sneiderman. Neuman v. State, 297 Ga. 501, 501 (773 SE2d 716) (2015). For the following reasons, we affirm.

1. Sneiderman contends that the trial court erred by denying her general demurrer, filed during the jury trial, in which she asserted that Counts 1 and 2 of the indictment were void because they failed to allege all the essential elements of the charged crimes.

“A general demurrer challenges the very validity of the indictment and may be raised anytime....” State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). “An indictment is void to the extent that it fails to allege all the essential elements of the crime or crimes charged.” Henderson v. Hames, 287 Ga. 534, 538 (697 SE2d 798) (2010). The rule that a grand jury indictment must set forth all the essential elements of the charged offense serves to satisfy the Sixth Amendment’s due process requirement that the defendant “be informed of the nature and cause of the accusation,” and the Fifth Amendment’s indictment requirement ensuring that a grand jury return an indictment only when it finds probable cause to support all the essential elements of the offense. Smith v. Hardrick, 266 Ga. 54, 54-55 (464 SE2d 198) (1995).

As to Count 1, Sneiderman claims the indictment was void for failing to allege the essential mens rea or intent element contained in the charged offense under OCGA § 16-10-50. The relevant portions of OCGA § 16-10-50 provide:

(a) A person commits the offense of hindering the apprehension or punishment of a criminal when, with intention to hinder the apprehension or punishment of a person whom he knows or has reasonable grounds to believe has committed a felony or to be an escaped inmate or prisoner, he:
(1) Harbors or conceals such person; or
(2) Conceals or destroys evidence of the crime.

As set forth in the indictment, Count 1 charged Sneiderman

with the offense of Hindering the Apprehension of a Criminal in violation of [OCGA §] 16-10-50 for the said accused person, in the County of DeKalb and State of Georgia, between the dates of November 18, 2010, and January 5, 2011, did knowingly and willfully conceal facts and destroy evidence of Hemy Neuman’s guilt in the murder of Russell Sneiderman, which she knew was evidence of the crime of Murder, to wit: the accused destroyed text messages and a record of telephone calls between herself and Hemy Neuman exchanged on the date of the murder, concealed her romantic relationship with Hemy Neuman from police, and concealed her knowledge of Hemy Neuman’s culpability in the murder of Russell Sneiderman.

“The mens rea of [OCGA § 16-10-50] is an intent to hinder the apprehension or punishment of a person who the actor knows or has reason to believe is either (1) a felon, (2) an escaped inmate, or (3) an escaped prisoner.” Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Georgia, (I) Impending Arrest or Prosecution, (II) (A) (2014 ed.). Sneiderman contends that Count 1 is void because it failed to expressly charge the essential mens rea element of OCGA § 16-10-50 that she intended to hinder the apprehension or punishment of Neuman who she knew or had reason to believe was a felon.

We find that Count 1 of the indictment sufficiently set forth the essential mens rea element of OCGA § 16-10-50. Count l’s express reference to OCGA § 16-10-50 on which the charge was based, along with the other factual allegations, adequately informed Sneiderman of the charged offense. State v. Howell, 194 Ga. App. 594, 595 (391 SE2d 415) (1990). Moreover, Count 1 further alleged that Sneiderman “did knowingly and willfully conceal facts and destroy evidence of Hemy Neuman’s guilt in the murder of Russell Sneiderman, which she knew was evidence of the crime of Murder____” These allegations necessarily raised an inference that Sneiderman acted with the intent required under OCGA § 16-10-50 to hinder the apprehension or punishment of Neuman who she knew was a felon. The failure to expressly allege the essential element of mens rea or intent does not render an indictment defective “where the indictment employs language that necessarily raises an inference that the requisite criminal intent existed.” Morris v. State, 310 Ga. App. 126,130 (712 SE2d 130) (2011) (citation and punctuation omitted); Humphrey v. State, 231 Ga. 855, 861 (204 SE2d 603) (1974). It follows that the allegations of Count 1 warranted an inference that the grand jury found probable cause to support the essential mens rea element contained in OCGA § 16-10-50. The trial court did not err by denying the general demurrer to Count 1.

As to Count 2, Sneiderman claims the indictment was void for failing to allege the essential element of materiality contained in the charged offense under OCGA § 16-10-20. The relevant portions of OCGA § 16-10-20 provide as follows:

Aperson who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact... in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

As set forth in the indictment, Count 2 charged Sneiderman

with the offense of Concealment of Facts in Matters Within the Jurisdiction of the Dunwoody Police Department in violation of [OCGA §] 16-10-20 for the said accused person, in the County of DeKalb and State of Georgia, on or about the 24th day of November, 2010, did knowingly and willfully conceal from representatives of the Dunwoody Police Department the existence of a romantic relationship between herself and Hemy Neuman, while that Department was conducting an official investigation into the murder of Russell Sneiderman.

Because Count 2 involved the portion of OCGA § 16-10-20 dealing with concealment of a fact, an essential element of the offense was proof that the concealed fact was material in a matter within the jurisdiction of the alleged department or agency. Kurtz, supra, at (P) Perjury and Related Crimes, (IX) False Statements (2014 ed.). Sneiderman contends that Count 2 is void because it failed to expressly charge that the concealed fact (a romantic relationship between herself and Neuman) was material to decisions of the DPD in its investigation into the murder of Russell Sneiderman.

We find that Count 2 sufficiently set forth the essential element of materiality contained in OCGA § 16-10-20. Count 2 alleged that, in violation of OCGA § 16-10-20, Andrea Sneiderman had a romantic relationship with Neuman, and that, while the DPD was conducting an investigation into the murder of Russell Sneiderman, she knowingly and wilfully concealed that relationship from DPD representatives. Count 2’s express reference to OCGA § 16-10-20 on which the charge was based, along with the other factual allegations, adequately informed Sneiderman of the charged offense. Howell, 194 Ga. App. at 595. Although Count 2 did not expressly allege that the concealed relationship was material to decisions of the DPD in its murder investigation, the failure to expressly allege the essential element of materiality in OCGA § 16-10-20 did not render the indictment defective because the language of the indictment necessarily raised an inference of the requisite materiality. Morris, 310 Ga. App. at 130; Humphrey, 231 Ga. at 861; see United States v. McGough, 510 F2d 598, 602 (5th Cir. 1975) (construing similar provisions contained in 18 USC § 1001 and concluding that indictment need not expressly allege essential element of materiality if it warrants an inference of materiality). The allegations that Sneiderman “knowingly and willfully” concealed her romantic relationship with Neuman from DPD representatives while the DPD was investigating the murder of Russell Sneiderman necessarily raised an inference that she acted intentionally to conceal that fact from the DPD representatives with knowledge that the fact was material (i.e., of consequence) to the investigation. See Byrd v. State, 216 Ga. App. 316, 318 (454 SE2d 594) (1995) (as used in OCGA§ 16-10-20, “knowingly” included knowledge of falsity of the statement at issue; “willful” means intentional and deliberate). Accordingly, the allegations of Count 2 warrant an inference that the grand jury found probable cause to support the essential element of materiality contained in the offense charged under OCGA § 16-10-20. The trial court did not err by denying the general demurrer to Count 2.

2. Sneiderman contends that the evidence was insufficient to support the guilty verdicts on Counts 8 and 10.

Count 8 charged that Sneiderman made a false statement in violation of OCGA § 16-10-20 as follows: that, on or about November 19, 2010, during the DPD investigation into the murder of Russell Sneiderman, Andrea Sneiderman knowingly and wilfully made a false statement to a DPD officer, to wit: “she told [the officer] that she had made it clear to Hemy Neuman that she did not want him to pursue her romantically.” According to Sneiderman, because there was evidence that she told Neuman she did not want a romantic relationship with him, this evidence established that the statement alleged in Count 8 was truthful. But in support of Count 8, the State points to other evidence that Sneiderman had a physically intimate relationship with Neuman; that they shared hotel rooms on business trips; that they exchanged romantic e-mails; and that only weeks before Neuman murdered Sneiderman’s husband, she and Neuman were seen in public dancing together and kissing.

Count 10 charged that Sneiderman made a false statement in violation of OCGA § 16-10-20 as follows: that, on or about January 5, 2011, Sneiderman knowingly and wilfully made a false statement to two DPD officers in a matter within the jurisdiction of the DPD, to wit: she denied that she was with Hemy Neuman in Longmont, Colorado in July 2010. Sneiderman says the State failed to prove this count because the evidence showed that she falsely denied being with Neuman in Denver in July 2010, and that the officers did not ask her if she was with Neuman in Longmont, a suburb of Denver. In support of Count 10, the State produced evidence of the following events which occurred in July 2010: While Sneiderman was attending an out-of-town business conference in Longmont, Neuman (her supervisor) flew from Atlanta to Denver; Sneiderman picked up Neuman at the Denver airport; they drove together to Sneiderman’s hotel in Longmont; Sneiderman changed her hotel reservation from one guest to two and requested a king size bed; and, after the conference, Sneiderman and Neuman flew together from Denver to Atlanta.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in a light most favorable to the verdict. This Court does not assume the jury’s role as factfinder by weighing the evidence or by determining the credibility of witnesses, but only determines whether the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979), for a rational trier of fact to find [the defendant] guilty of the charged offenses beyond a reasonable doubt.

Parker v. State, 220 Ga. App. 303, 303 (469 SE2d 410) (1996) (citation and punctuation omitted). Sneiderman contends only that the evidence was insufficient to support the guilty verdicts, not that she was surprised or prejudiced by any material variance between the allegations of the indictment and the evidence at trial. Applying the above standards, we find the evidence was sufficient to support Sneiderman’s convictions on Counts 8 and 10. Jackson, 443 U. S. 307.

3. Sneiderman contends that her conviction for perjury must be reversed because the State failed to prove that her alleged false testimony was material, and failed to produce required corroborating evidence.

Sneiderman was found guilty on Count 6 charging that she committed the offense of perjury in violation of OCGA § 16-10-70 when, in February 2012, she testified under oath at Neuman’s murder trial, and made a false statement •— “that she was not romantically involved with Hemy Neuman” — which was material to a point in question. Under OCGA § 16-10-70, “[a] person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.” Thus, the essential elements of the offense are: (1) knowingly and wilfully making a false statement, (2) material to the issue or point in question, (3) while under oath in a judicial proceeding. Walker v. State, 314 Ga. App. 714, 717 (725 SE2d 771) (2012); Williams v. State, 244 Ga. App. 692, 696 (536 SE2d 572) (2000).

We find no merit to Sneiderman’s claim that the State failed to prove that the alleged false testimony was material to the issue or point in question. “The test of materiality [under OCGA § 16-10-70] is whether the alleged false statement could have influenced the decision as to the question at issue in the judicial proceeding in which the perjury is alleged to have been committed.” Walker, 314 Ga. App. at 717 (citation and punctuation omitted). “[T]he actual effect of a false statement has no bearing on its materiality, and the guilt of one who has falsely sworn does not depend on the result of the proceedings in which it occurred.” Hardison v. State, 86 Ga. App. 403, 403-404 (71 SE2d 525) (1952). It is not required that the alleged false statement be material to the main issue, “but it is sufficient if it relates to an issue which is only collaterally involved.” Hardeman v. State, 58 Ga. App. 425, 427 (198 SE 833) (1938); Wilson v. State, 115 Ga. 206, 207 (41 SE 696) (1902).

The materiality of the false testimony may be shown by the record of the proceedings in which the testimony was given, or by the testimony there given, or by all or so much of the pleadings therein as show the issues, together with such other facts proved on the trial as tend to show the testimony to be on a material issue. Whether the false statement was material is normally an issue for the jury.

Walker, 314 Ga. App. at 717 (citations and punctuation omitted).

In support of the Count 6 perjury charge, the State presented the following evidence: At the February 2012 murder trial, there was evidence that Neuman shot and killed Russell Sneiderman, and that, at the time of the shooting, Neuman was romantically involved with Andrea Sneiderman, the victim’s wife. Neuman admitted he shot and killed Russell Sneiderman, but asserted he was not guilty by reason of his insanity, including delusions he had about a romantic relationship with Andrea Sneiderman. There was also evidence that, during the murder trial, Andrea Sneiderman wilfully and knowingly gave false statements under oath denying that she had any romantic relationship with Neuman. Accordingly, the State’s evidence established that an issue at the murder trial was Neuman’s mental state and motivation when he shot and killed Russell Sneiderman — whether Neuman knew right from wrong and was motivated by his romantic relationship with the victim’s wife, Andrea Sneiderman, or whether he acted without knowing right from wrong because of mental illness asserted in support of his insanity defense. Sneiderman’s false statement denying any romantic relationship with Neuman was material because it could have influenced the decision on that issue.

As to the claim that the State failed to produce required corroborating evidence, “[a] conviction for perjury requires either the testimony of two witnesses or that of one witness and corroborating circumstances to support it.” Williams, 244 Ga. App. at 696; OCGA § 24-14-8. “The determination of the weight and sufficiency of the corroboration is a matter for the jury.” Dixon v. State, 172 Ga. App. 803, 804 (324 SE2d 780) (1984). The State satisfied the corroboration requirement as to Count 6 by introducing evidence which tended to independently establish that Sneiderman testified falsely under oath when she denied that she and Neuman had a romantic relationship. The State produced testimony from a bartender at a night club who saw Sneiderman and Neuman in October 2010 at the club on the dance floor pressing their bodies together while Neuman cupped Sneiderman’s buttocks with his hands and they engaged in “passionate kiss[ing].” The State also produced corroborating circumstances in the form of romantic e-mail messages between Neuman and Sneiderman, and evidence that they shared hotel rooms on out-of-town business trips.

4. Sneiderman contends that the State failed to produce evidence sufficient to support her conviction on Count 2. Count 2 charged that, on or about November 24, 2010, while the DPD was investigating the murder of her husband, she violated OCGA § 16-10-20 by knowingly and wilfully concealing from DPD representatives that she had a romantic relationship with Neuman. See Division 1, supra. Sneiderman claims the evidence was insufficient because the State failed to prove she had a duty to disclose to the DPD the existence of her romantic relationship with Neuman.

As set forth in Division 1, supra, the concealment offense charged in Count 2 is set forth in the following portion of OCGA § 16-10-20:

Aperson who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact... in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

Accordingly, the essential elements of the offense were: (1) Sneiderman concealed a fact by trick, scheme, or device; (2) the fact was material; (3) Sneiderman acted knowingly and wilfully; and (4) Sneiderman concealed the material fact in a matter within the jurisdiction oftheDPD. The concealment offense in OCGA § 16-10-20 does not apply to passive nondisclosure; rather, the statutory requirement that “concealing a fact [be accomplished] by ‘scheme, trick or device’ requires an affirmative act on the part of a defendant.” Marcus v. State, 249 Ga. 345, 345 (290 SE2d 470) (1982). As our Supreme Court has recognized, OCGA § 16-10-20 is modeled on the longstanding federal false statements statute, 18 USC § 1001, which criminalizes affirmative false statements and concealment of material facts designed to deceive and harm lawful governmental functions. Haley v. State, 289 Ga. 515, 523-528 (712 SE2d 838) (2011). Accordingly, “as properly construed, [OCGA] § 16-10-20 may only be applied to conduct that persons of common intelligence would know was wrongful because it could result in harm to the government.” Id. at 528.

In the present case, the evidence established as a matter of law that Sneiderman engaged in conduct that a person of common intelligence would know was wrongful because it could result in harm to the DPD’s investigation of her husband’s murder. Sneiderman voluntarily responded to questions about Neuman posed to her by DPD officers conducting the murder investigation. When Sneiderman responded to those questions, this created a duty to answer truthfully and disclose relevant information, the violation of which was punishable under OCGA § 16-10-20. See United States v. Arcadipane, 41 F3d 1, 5 (1st Cir. 1994) (construing similar provisions of 18 USC § 1001 and concluding that “section 1001 in and of itself constitutes a blanket proscription against the making of false statements to federal agencies”). Sneiderman responded to the officers’ questions giving them false and misleading information about her relationship with Neuman deliberately designed to deceive the officers and impede the investigation by creating the false impression that Neuman had no motive to murder her husband. The State produced evidence that, on or about November 24,2010, Sneiderman falsely told a DPD officer investigating the murder that Neuman had made only one romantic overture to her which she had rejected, and that she and Neuman were just friends and nothing more. But evidence showed to the contrary that Neuman had declared his love for Sneiderman and asked her to marry him, and that Sneiderman and Neuman had a romantic relationship, which included physical intimacy. The evidence was sufficient for the jury to find beyond a reasonable doubt that Sneiderman engaged in an affirmative act by giving false responses to the officers’ questions, and that this was a trick, scheme, or device by which she knowingly and wilfully concealed a material fact in the murder investigation within the jurisdiction of the DPD. The evidence was sufficient to support Sneiderman’s conviction on Count 2. OCGA § 16-10-20; Jackson, 443 U. S. 307.

5. Sneiderman contends that the evidence was insufficient to support her conviction on Count 3 charging that, on or about January 5, 2011, she violated the false statement provisions of OCGA § 16-10-20 by knowingly and wilfully making a false statement to DPD officers in a matter within the jurisdiction of the DPD by falsely telling the officers “that she never suspected that Hemy Neuman was involved in the murder of Russell Sneiderman prior to December 28, 2010.” Sneiderman does not dispute that she made the statement on January 5,2011 or that it was false. She claims that, because Neuman was arrested on the murder charge on January 4, 2011, there was no evidence to support an essential element of the charged offense — that the false statement was made in a matter within the jurisdiction of the DPD.

An essential element of a false statement offense alleged in Count 3 is that the false statement was made “in any matter within the jurisdiction of any department or agency” of state or local government. OCGA § 16-10-20. The term “jurisdiction” is not given a narrow or technical meaning as used in OCGA § 16-10-20. Tesler v. State, 295 Ga. App. 569, 577 (672 SE2d 522) (2009). Rather, the term “jurisdiction” as used in OCGA § 16-10-20 “covers all matters confided to the authority of an agency or department. . . [and] mean[s] simply the power to act upon information when it is received.” Id. (punctuation omitted). There was evidence that DPD officers questioned Andrea Sneiderman on January 5, 2011 as part of an ongoing DPD investigation into the murder of Russell Sneiderman. The evidence was sufficient for the jury to conclude that Sneiderman’s false statement to the DPD officers on January 5, 2011, was made in a matter within the jurisdiction of the DPD. The evidence was sufficient to support the conviction on Count 3. OCGA § 16-10-20; Jackson, 443 U. S. 307.

6. There is no merit to Sneiderman’s claim that the trial judge violated OCGA § 17-8-57 by giving a charge to the jury on the offense of perjury that improperly expressed the judge’s opinion with respect to what had been proved on the essential element of materiality.

As set forth in Division 3, supra, the essential elements of the offense of perjury are: (1) knowingly and wilfully making a false statement, (2) material to the issue or point in question, (3) while under oath in a judicial proceeding. OCGA § 16-10-70. Accordingly, a defendant cannot be convicted of perjury unless the false testimony is material to an issue in the case. The trial judge’s jury charge on the element of materiality included an instruction on the principle that, when a witness gives testimony material to an issue in the case, the witness’ credibility becomes collaterally material to the issue; therefore “false testimony going to the credibility of that witness likewise can he considered material.” Walker, 314 Ga. App. at 717; Wilson, 115 Ga. at 207-208.

Under former OCGA § 17-8-57, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” A court’s charge to the jury violates OCGA § 17-8-57 when it “assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” Mullinax v. State, 255 Ga. 442, 445 (339 SE2d 704) (1986). Contrary to Sneiderman’s contention, nothing in the judge’s charge to the jury assumed facts with respect to the issue of materiality or expressed an opinion that materiality had been proved.

7. Sneiderman contends that the trial court erred by admitting into evidence under the necessity exception to the hearsay rule the testimony of Melanie White regarding nontestimonial statements made to her by Neuman. Over the defense’s hearsay objection, White testified that in the summer of 2010 Neuman told her that he had met another woman at work named Andrea, who was married; that he and Andrea had grown close on a business trip to Greenville, South Carolina during which she “gave in”; and that on another business trip to London, he and Andrea kissed and fondled each other but did not have intercourse.

Nontestimonial hearsay evidence may be admitted under the necessity exception set forth in OCGA § 24-8-807, which provides:

A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this Code section unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

It is undisputed that the declarant, Neuman, was unavailable to testify. See Brown v. State, 291 Ga. 892, 896 (734 SE2d 23) (2012) (for the admission of nontestimonial hearsay under the necessity exception offormer OCGA § 24-3-1 (b), the declarant must be unavailable). Although OCGA § 24-8-807 does not expressly require that the declarant be unavailable, “if the declarant is available then the proponent clearly has comparable evidence and thus there is no necessity to admit the hearsay under [OCGA § 24-8-807].” Paul S. Milich, Courtroom Handbook on Georgia Evidence, Nl, Comments (No Comparable Evidence) (2015 ed.); Rai v. State, 297 Ga. 472, 477 (775 SE2d 129) (2015) (necessity for admission shown by unavailability of declarant due to death or some other cause). As to other requirements, Sneiderman contends that the hearsay statements admitted by the trial court lacked circumstantial guarantees of trustworthiness required under OCGA § 24-8-807.

Trustworthiness is assessed under the totality of the circumstances, including any motives the declarant may have had to be untruthful in making the statement; the consistency of the statement with other statements made by the declarant; and the extent to which the declarant enjoyed a relationship of confidence with the witness.

Rai, 297 Ga. at 477. The record shows that White, a real estate agent, helped Neuman and his family buy a house in 2006, and subsequently contacted Neuman about twice a year for possible business referrals. In the summer of 2010, Neuman contacted White to ask for advice about the possible sale of his house, and, during the conversation, revealed to White that he was having problems in his marriage and was fond of a married woman (Andrea) he met at work. After White provided Neuman with the real estate information he requested, Neuman subsequently made 20 to 30 additional unsolicited telephone calls to White during the next couple of months in which he gave ongoing details of his romantic relationship with Andrea and asked White for advice. White consistently told him to leave Andrea alone and go home to his wife and kids. During this period, evidence showed that Neuman also forwarded to White copies of e-mail conversations between himself and Andrea that corroborated Neuman’s statements about the developing romantic relationship, and asked White to read the e-mails and give him advice. Although Neuman did not have a close confidential relationship with White, the record showed other circumstantial guarantees of trustworthiness. On 20 to 30 occasions over a period of months, Neuman made consistent statements to White about his developing romantic relationship with Andrea Sneiderman — a personal matter that he had no motive to lie about. Neuman’s numerous oral statements to White about his relationship with Sneiderman were consistent with the e-mail evidence of the relationship that Neuman sent to White, and with other evidence in the case establishing the existence of the romantic relationship between Neuman and Sneiderman. Although Sneiderman points to evidence that Neuman was suffering from mental illness at the time, and that the jury in his murder trial found him guilty but mentally ill, other evidence at the murder trial showed that Neuman admitted he had an affair with Sneiderman. Neuman, 297 Ga. at 501. On this record, we find that the trial court did not abuse its discretion by determining that there were circumstantial guarantees of trustworthiness; that the statements were evidence of a material fact and more probative than other evidence the State could procure; and that the evidentiary rules and the interests of justice were best served by admission of the statements pursuant to the necessity exception in OCGA § 24-8-807. Rai, 297 Ga. at 477-478. Finally, even assuming that the trial court erred by admitting the hearsay statements pursuant to the necessity exception, any error was rendered harmless by the admission of other testimony and evidence generally covering the same subject matter. Johnson v. State, 293 Ga. 641, 643 (748 SE2d 896) (2013); Roper v. State, 263 Ga. 201, 202-203 (429 SE2d 668) (1993), overruled on other grounds recognized in Clark v. State, 271 Ga. 6, 10 (515 SE2d 155) (1999).

Decided March 11, 2016

The Steel Law Firm, Brian Steel, for appellant.

Robert D. James, Jr., District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       Neuman pled not guilty by reason of insanity on the murder charge and was found guilty but mentally ill. Neuman, 297 Ga. at 501. On appeal, the Supreme Court found that the evidence was sufficient for the jury to find Neuman guilty and to reject his insanity defense. Nevertheless, the Supreme Court reversed the conviction on the basis that the trial court committed harmful error by admitting evidence protected by the attorney-client privilege. Id. at 501-510.

       The jury found Sneiderman guilty of perjury as charged in Counts 6, 9,11, and 12 of the indictment. The convictions on Counts 9,11, and 12 were vacated by operation of law when the trial court merged the convictions on those counts into the conviction on Count 6. Collins v. State, 327 Ga. App. 590, 592 (760 SE2d 606) (2014).

       OCGA § 24-14-8 provides in relevant part: “The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including... prosecutions for perjury... the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.”

       See Bryson v. United States, 396 U. S. 64, 71-72 (90 SCt 355, 24 LE2d 264) (1969) (construing analogous provisions of 18 USC § 1001 prohibiting false statements, and concluding:
      A statutory basis for an agency’s request for information provides jurisdiction enough to punish fraudulent statements under § 1001. . . . Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.

       Effective July 1, 2015, the substantially similar provisions of OCGA § 17-8-57 (a) (1) state: “It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.”

       If hearsay is nontestimonial, the Confrontation Clause is not implicated, and admissibility against a criminal defendant is governed by the applicable rules of evidence. Whorton v. Bockting, 549 U. S. 406, 413-414, 420 (127 SCt 1173, 167 LE2d 1) (2007); Jackson v. State, 288 Ga. 213, 215 (702 SE2d 201) (2010); Stinski v. State, 286 Ga. 839, 848, n. 2 (691 SE2d 854) (2010). The hearsay statements at issue are clearly nontestimonial. Bulloch v. State, 293 Ga. 179, 183-184, n. 3 (744 SE2d 763) (2013); Jackson, 288 Ga. at 215.

       Effective January 1, 2013, the necessity exception in former OCGA § 24-3-1 (b) was replaced by OCGA § 24-8-807, which applies in the present case. The new rule adds a requirement not contained in the pre-2013 rule — that the proponent give notice in advance of trial or hearing of intent to offer a hearsay statement under the exception. The State gave the required notice. As to other requirements set forth in OCGA § 24-8-807, because of similarities with former OCGA § 24-3-1 (b) and Federal Rule of Evidence 807, cases construing those provisions are helpful in construing OCGA § 24-8-807. Paul S. Milich, Courtroom Handbook on Georgia Evidence, N1 (2015 ed.). Also effective January 1, 2013, the former rule that hearsay has no probative value even in the absence of an objection was replaced by the rule set forth in the new Evidence Code, which provides: “ ‘Hearsay shall not be admissible except as provided by [OCGA §§ 24-8-801 through 24-8-807]; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.’ OCGA § 24-8-802.” Cisneros v. State, 334 Ga. App. 659, 665, n. 10 (780 SE2d 360) (2015).


author: Branch, Judge.

text:
    A15A2235.
    HONESTER v. THE STATE.
    (784 SE2d 30)
   Branch, Judge.

Wayne L. Honester appeals from the denial of his plea in bar, arguing that the trial court erred when it terminated his first trial on a felony obstruction charge before the jury reached a verdict. Honester contends that instead of declaring a mistrial, the trial court should have provided the jury with an appropriate Allen charge and instructed it to continue deliberating. Honester also asserts that because the trial court declared the mistrial over his objection and in the absence of any manifest necessity for doing so, he was entitled to a plea in bar as a matter of law. For reasons explained more fully below, we agree with Honester. We therefore reverse the trial court’s order and remand this case with direction.

On an appeal from the grant or denial of a double jeopardy plea in bar, we generally review “the trial court’s oral and written rulings as a whole” to determine whether any factual findings contained therein support the trial court’s ruling as to whether the defendant was entitled to a plea in bar. Cotman v. State, 328 Ga. App. 822-823 (762 SE2d 824) (2014). See also Garrett v. State, 306 Ga. App. 429 (702 SE2d 470) (2010). But in those cases where the relevant facts are undisputed and “no question regarding the credibility of witnesses is presented, we review de novo the trial court’s application of the law to undisputed facts.” Cotman, 328 Ga. App. at 823, quoting Garrett, 306 Ga. App. at 429.

The facts relevant to this appeal are undisputed, and many of them are set forth in our opinion in Honester v. State, 329 Ga. App. 406 (765 SE2d 376) (2014) (“Honester I”) (physical precedent only), as follows:

Honester was indicted on a single charge of felony obstruction of a law enforcement officer by fighting with the officer during a lawful arrest.... Honester was tried before a jury on March 11, 2011. After deliberating for about three hours, the jury sent a note to the judge, stating, “We cannot agree on the verdict. What are your instructions?” Both the state and the defense requested that the trial court give the jury an Allen charge for further deliberations. . . . The judge said that before giving such a charge he wanted to ask the jury two questions: (1) the numerical division of votes as to guilt or innocence, and (2) whether it was likely that further deliberations would result in a unanimous verdict. Honester objected to the court asking the jurors how they were voting as to guilt or innocence, but the court overruled the objection and sent the jury a note containing both questions. The jury responded that the vote was eleven to one in favor of acquittal and answered “no” to the second question.
Upon learning of the nature and numerical breakdown of the jury vote, the state withdrew its request for an Allen charge. Honester renewed his request for the charge and also suggested that the jurors be asked if anyone was refusing to deliberate. The court stated that it would ask that question before deciding whether to give an Allen charge. The court submitted the question to the jury, and the jury responded that no one was refusing to deliberate. Honester again requested that the court give the Allen charge.
The trial judge, however, expressed concern that such a charge would place “undue pressure on a juror.” After further argument from the defense, the trial judge observed that the case “has had a lot of difficult evidence.” The judge then refused to give an Allen charge and, over the express objection of the defense, sua sponte declared a mistrial. The court reasoned: “I don’t think it appropriate to give the Allen charge and then put the jury back into a posture of further deliberations and pressuring when it’s clear from two of the communications that they cannot reach a verdict so I’ll declare a mistrial in the case.”
Five days later, Honester was tried again before a different jury which returned a guilty verdict. But upon being polled in open court, one of the jurors indicated that the verdict had not been freely and voluntarily made by him. The judge then instructed the jury to return to the jury room and continue deliberating. A short time later, the jury returned with another guilty verdict. Before imposing sentence, the trial court asked Honester if he wanted to say anything on his own behalf. Honester responded, “Your Honor, ... I don’t see how one week it’s eleven my way and then next week all twelve say I’m guilty. I don’t understand that Your Honor... I feel I would have been entitled to a fair trial last week. You [should] have [done] the same thing you did today send them right back in the room.” Thereafter, the trial court imposed the maximum sentence of five years.

Honester I, 329 Ga. App. at 406-408.

Following his conviction, Honester moved for a new trial, asserting that his lawyer’s failure to file a plea in bar after Honester’s first trial constituted ineffective assistance. Honester I, 329 Ga. App. at 408. The trial court denied that motion, id. at 408 (1), but this Court reversed, finding both that Honester’s trial counsel had performed deficiently in failing to file a plea in bar and that Honester had suffered prejudice as a result of that deficient performance. Id. at 413 (1). On remand, Honester filed a plea in bar, and the trial court held a brief hearing on that motion, at which it heard arguments of counsel as to whether the mistrial was prompted by manifest necessity and whether Honester was entitled to a plea in bar as a matter of law. Following that hearing, the trial court denied Honester’s motion in a summary order which states simply that “[a]her a full hearing on the matter, consideration of the evidence[], and arguments] [of the parties], Defendant’s plea in bar is hereby denied.” Honester now appeals from that order.

At the time an accused’s jury is impaneled and sworn, jeopardy attaches, and the accused is entitled, under the double jeopardy provisions of both the State and Federal Constitutions, to have his trial proceed either to conviction or acquittal before that particular tribunal. Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994). See also Jones v. State, 232 Ga. 324, 326 (206 SE2d 481) (1974). Thus, the declaration of a mistrial over the defendant’s objection will bar a retrial unless the record shows that the mistrial resulted from “manifest necessity.” Harvey v. State, 296 Ga. 823, 830 (2) (a) (770 SE2d 840) (2015). See also United States v. Perez, 22 U. S. (9 Wheat.) 579, 580 (6 LE 165) (1824). “The United States Supreme Court has clarified that the [term] ‘manifest necessity’... cannot be interpreted literally, and that a mistrial is appropriate when there is a ‘high degree’ of necessity.” Harvey, 296 Ga. at 830-831 (2) (a), quoting Renico v. Lett, 559 U. S. 766, 774 (II) (130 SCt 1855, 176 LE2d 678) (2010). And the “urgent circumstances” that give rise to the manifest necessity to declare a mistrial include cases “where ‘an impartial verdict cannot be reached, or where a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.’ ” Smith, 263 Ga. at 783 (1), quoting Illinois v. Somerville, 410 U. S. 458, 464 (II) (93 SCt 1066, 35 LE2d 425) (1973). See also Glass v. State, 250 Ga. 736, 738 (2) (300 SE2d 812) (1983) (“[w]here the jury is hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial”) (citations omitted).

The question of whether a jury is “hopelessly deadlocked,” and thus the existence of manifest necessity for a mistrial, is within the discretion of the trial court. See Harvey, 296 Ga. at 832 (2) (a); Romine v. State, 256 Ga. 521, 525 (1) (b) (350 SE2d 446) (1986). That discretion, however, “is not unbridled,” Haynes v. State, 245 Ga. 817, 819 (268 SE2d 325) (1980), and it must be exercised carefully, particularly where the trial court is declaring a mistrial either sua sponte or at the request of the State and over the objection of the defendant. State v. Johnson, 267 Ga. 305, 305 (477 SE2d 579) (1996) (“ ‘the power of the trial judge to interrupt the proceedings on his own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations’ ”) (citation omitted), quoting Jones, 232 Ga. at 326-327. The careful exercise of its discretion, in turn, requires the trial court to take certain steps before concluding that the jury is hopelessly deadlocked and that a mistrial is necessary.

Given “the severe consequences of ordering a mistrial without the accused’s consent,” Smith, 263 Ga. at 783 (1) (citation and punctuation omitted), it is “highly important” that the trial court undertake “a consideration of alternative remedies” before declaring a mistrial based on a jury’s alleged inability to reach a verdict. Haynes, 245 Ga. at 819. Specifically, a trial court must “ ‘give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.’ ” Harvey, 296 Ga. at 832 (2) (a), quoting Smith, 262 Ga. at 783 (1). Accordingly, a trial court may not allow itself to be bound by a jury’s pronouncement that it is hopelessly deadlocked. See Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999) (“[a]lthoughthe jury twice stated that it was at an eleven to one ‘deadlock,’ the trial court was not bound by those pronouncements”) citing Todd v. State, 243 Ga. 539, 542 (3) (255 SE2d 5) (1979) (“[t]he trial judge is not bound to accept the jury’s feeling that it is hopelessly deadlocked”). “On the contrary, the trial court, in the exercise of a sound discretion, [is] required to make its own determination as to whether further deliberations [are] in order.” Sears, 270 Ga. at 838 (1) (citation omitted). See also Harvey, 296 Ga. at 832 (2) (a) (“the record must show that the trial court actually exercised its discretion”) (citations omitted); Romine, 256 Ga. at 524 (1) (b).

The exercise of such discretion, in turn, requires the trial court to take additional steps to determine whether there is little or no possibility of the jury reaching a verdict. Such steps may include polling the jurors individually or questioning them as a group to determine how close they are to an agreement and/or whether one or more jurors is refusing to deliberate. See Sanders v. State, 290 Ga. 445, 449-450 (6) (721 SE2d 834) (2012) (no error in giving Allen charge where jury was deadlocked after eight hours but all jurors were still participating in deliberations); Humphreys v. State, 287 Ga. 63, 80 (9) (a) (694 SE2d 316) (2010) (no abuse of discretion in denying motions for mistrial where all jurors still deliberating after several hours); Wood v. State, 234 Ga. 758, 759 (1) (218 SE2d 47) (1975) (affirming denial of plea in bar where mistrial declared following 11 hours of deliberations; after polling jurors individually, the trial court determined that further deliberations would be “fruitless”). See also Thornton v. State, 145 Ga. App. 793, 794 (245 SE2d 22) (1978). The trial court should also consider the length of time the jury deliberated before declaring itself deadlocked and whether the time spent in jury deliberations is commensurate with the length of the trial and the complexity of the issues the jury has been asked to decide. See Sears, 270 Ga. at 837-839 (1) (trial court did not err in requiring jury to continue its deliberations after it twice reported that it was deadlocked; the case was a capital murder trial and the jury first reported it was deadlocked after only six hours of deliberation and again announced it was deadlocked after “just another three hours” of deliberation); Romine, 256 Ga. at 526 (1) (c) (“[considering the length and complexity of the trial, the length of time the jury deliberated before declaring itself deadlocked, and the amount of progress made in the interim, we find no abuse of discretion in the court’s refusal to declare a mistrial”). See also Thornton, 145 Ga. App. at 795.

Here, in response to the trial court’s inquiry, the jury had stated that no juror was refusing to deliberate and that the jury was close to a unanimous decision. Additionally, the jury had deliberated for only about three hours before declaring that it could not reach a verdict. The trial court, however, noted that the case “ ‘had a lot of difficult evidence.’ ” Honester I, 329 Ga. App. at 407. Given the trial court’s own description of the evidence, the relatively short length of time the jury had been deliberating before declaring itself deadlocked showed that further deliberations were called for. Thus, the information known to the trial court at the time the jury pronounced itself deadlocked supported the giving of an Allen-type charge.

The trial court, however, declined to give an Allen charge, despite Honester’s three separate requests that it do so. The stated reason for this refusal was the trial court’s concern that such a charge would place undue pressure on the lone juror voting to convict. This reasoning, however, was flawed in at least two respects. First, the trial court’s rationale for refusing the Allen charge erroneously assumed that such a charge will be considered coercive whenever there is a significant numerical division on the jury. The Supreme Court of Georgia, however, has previously held that the giving of the pattern Allen charge under similar circumstances is not coercive. See Gibson v. State, 272 Ga. 801, 803-804 (3) (537 SE2d 72) (2000) (trial court did not err in giving Allen charge even after learning jury was divided 11-1); Jones v. State, 273 Ga. 231, 234-235 (5) (539 SE2d 154) (2000) (no error in giving sen. Allen charge after jury reported it was split 11-1 in favor of a sentence of death); Sears, 270 Ga. at 835 (1) (court properly instructed jury to continue its deliberations where jury reported being deadlocked 11-1 after six hours of deliberations). See also Gamble v. State, 291 Ga. 581, 584 (5) (731 SE2d 758) (2012) (pattern jury charge requiring an allegedly deadlocked jury to deliberate further is not “impermissibly coercive”); Sanders, 290 Ga. at 449-450 (6) (same). And even in the absence of the pattern charge, the judge could have given any charge

urging the jury to reach a consensus [so long as the charge] did not put pressure on the jurors “one way or the other,” Romine, 256 Ga. at 525 [(1) (b)]; . . . did not exhort “the minority to reexamine its views in deference to the majority, or to suggest that the majority’s position is correct [,]” United States v. Norton, 867 F2d 1354, 1366 (11th Cir. 1989)[;] . . . [or] urge the jurors “to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” Harris v. State, 263 Ga. 526, 528 (435 SE2d 669) (1993).

Sears, 270 Ga. at 838 (1).

Additionally, the stated reason for the trial court’s decision to declare a mistrial sua sponte shows that the trial court considered only the possibility that such a charge would unduly pressure the juror voting to convict. The court failed to consider Honester’s right to have his trial completed before this particular tribunal. When determining manifest necessity for declaring a mistrial, however, the trial court must “weigh[ ] the rights of both parties in light of the totality of the surrounding circumstances.” Tubbs v. State, 276 Ga. 751, 754 (3) (583 SE2d 853) (2003) (citation omitted). See also Jones, 232 Ga. at 327 (“the existence of ‘manifest necessity’ is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances”) (citation omitted). Thus, the trial court abused its discretion when it failed to give any weight to Honester’s rights before declaring a mistrial.

Finally, the trial court also abused its discretion when, before deciding whether to give the requested Allen charge and over Honester’s objection, the trial court specifically asked the numerical division of the jury as to guilt or innocence. The trial court then compounded this error when it appeared to consider the nature of the jury’s numerical division in deciding whether to require the jury to deliberate further or to declare a mistrial. See Honester I, 329 Ga. App. at 407 (after determining, over Honester’s objection, the nature of the jury’s numerical division, the trial court declined to give an Allen charge, citing its concern that such a charge would place undue pressure on the lone juror voting to convict). The law is clear that in an effort to determine whether it should order further deliberations, the trial court “ ‘may . . . inquire how the jury stands numerically.’ ” Gibson, 272 Ga. at 802 (2), quoting Muhammad v. State, 243 Ga. 404, 407 (4) (254 SE2d 356) (1979). But the law is equally clear that a trial court may not inquire into “the ‘nature of a jury’s numerical division,’ ” Gibson, 272 Ga. at 803 (2), and in fact should caution the jurors not to state whether the vote favors acquittal or conviction. Sears, 270 Ga. at 839 (1), n. 1. See also Gibson, 272 Ga. at 802 (2) (noting that inquiring into the jury’s numerical division, the trial court “specifically caution[ed the jury] not to state . . . whether the vote favored acquittal or conviction”). Although a trial court may be vested with broad discretion in certain areas — including the determination of manifest necessity for a mistrial — that discretion does not allow the trial court to do that which the law expressly forbids.

Decided March 11, 2016.

Robert L. Chan, for appellant.

As the foregoing demonstrates, the “flawed reasoning” employed by the trial court in refusing the requested Allen charge “[did] not provide a valid basis for the sua sponte declaration of a mistrial over the objection of the defense.” Honester I, 329 Ga. App. at 412 (1). Thus, the trial court abused its discretion in sua sponte declaring a mistrial rather than instructing the jury to deliberate further. Haynes, 245 Ga. at 819 (“[i]n cases in which there is no manifest necessity for aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant’s motion for a mistrial, the granting of a mistrial is an abuse of discretion”), citing United States v. Jorn, 400 U. S. 470 (91 SCt 547, 27 LE2d 543) (1971). Honester, therefore, was entitled to a plea in bar as a matter of law, and we reverse the order of the trial court denying the same. See Otis v. State, 298 Ga. 544, 545 (782 SE2d 654) (2016) (“[w]here a mistrial has been improperly declared over the protest of the accused, the prisoner cannot be again tried”) (citation and punctuation omitted); Smith, 263 Ga. at 785 (2) (b) (where no manifest necessity existed for declaring a mistrial over defendant’s objection, defendant was entitled to plea in bar as a matter of law). Upon remand, the trial court shall grant the plea in bar.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Miller, P. J., concur.

Ashley Wright, District Attorney, Joshua B. Smith, Amanda N. Heath, Assistant District Attorneys, for appellee.

       When the jury in a criminal trial indicates it is deadlocked, the parties may request an Allen charge, encouraging the jurors to reexamine their opinions in continued deliberations as they attempt to reach a unanimous verdict. See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896). Such a charge should also caution the jury that no juror should abandon an honest conviction simply for the sake of reaching a consensus. See Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999).

        Honester I is physical precedent only because one of the judges on the three-judge panel concurred in the judgment only. See Court of Appeals Rule 33 (a). While the decision may not have precedential value for other cases, it remains binding in Honester’s case. See Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011) (“[i]t is well established that any issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court, and that the law of the case doctrine is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases”) (punctuation and footnotes omitted).

       Despite this recitation by the trial court, the transcript of the hearing on Honester’s plea in bar shows that it was not an evidentiary hearing. Instead, during that 19-minute proceeding, the trial court heard argument from both the State and Honester as to whether, based on the undisputed facts related to the mistrial, Honester was entitled to a plea in bar as a matter of law.

       Following the plea in bar hearing, the trial court held a hearing on Honester’s motion for reconsideration of his bond. The trial court thereafter entered an order setting Honester’s bond “on his own recognizance” and noting that the State was “dead docketing” the case. Although the dead docketing of the case means the State has no immediate plans to retry Honester, the State would nevertheless have the right to try Honester a second time in the absence of a plea in bar. See Beam v. State, 265 Ga. 853, 855, n. 3 (463 SE2d 347) (1995) (“[djead-docketing has been characterized as a procedural device by which the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court. Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution.... A case is still pending which can be called for trial at the judge’s pleasure . . .”) (citations and punctuation omitted). Approximately three weeks after setting Honester’s recognizance bond, the trial court entered its order denying his plea in bar.

       In Thornton, we set forth a number of factors for a trial court to consider when determining whether a declaration of a mistrial is necessary. Those factors include the results of a jury poll “as to whether additional time for deliberation would be helpful”; “the length of the trial and the complexity of the issues in the case”; and a “[consideration of the length of time the jury deliberated before declaring itself deadlocked.” 145 Ga. App. at 795. Additionally, in those cases where the jury has already engaged in lengthy deliberations, the trial court should also consider “whether the jury is so exhausted that the minority might be induced to vote for a verdict which they otherwise would not support.” Id.

       In its brief, the State concedes that “it was improper for the trial court to [inquire as to] the nature of the [jury] split in terms of guilt or innocence.”

       Our Supreme Court has indicated that a trial court’s inquiry into the numerical division of the jury as to the defendant’s guilt or innocence may constitute a legal error of constitutional dimension — i.e., it is possible that such an inquiry could jeopardize a defendant’s constitutional rights to due process and a fair trial. See Gibson, 272 Ga. at 802-803 (2). Compare Jones, 273 Ga. at 234 (5) (no error occurred where “[ajlthough the trial court learned of the nature of the split. . . the jury volunteered this information without prompting by the judge”) (footnote omitted).