text:
    A12A2149.
    CASTANEIRA v. THE STATE.
    (740 SE2d 400)
   Branch, Judge.

Ryan Allen Castaneira was tried by a Fayette County jury and convicted of criminal attempt to commit child molestation, criminal attempt to entice a child for indecent purposes, computer pornography and child exploitation, obscene Internet contact with a child, and misdemeanor possession of marijuana. He now appeals from the denial of his motion for a new trial, asserting that the trial court erred when it failed to instruct the jury on his sole defense of mistake in fact. Castaneira further contends that the evidence was insufficient to support his convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes, and that he received ineffective assistance of counsel. Castaneira also claims that the trial court erred in admitting certain evidence in violation of the best evidence rule, in failing to apply the applicable sentencing statute, and in failing to merge his convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes. We find no error in the denial of Castaneira’s motion for a new trial, and we therefore affirm that order. Finally, we find that the trial court did not err when it failed to merge Castaneira’s convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that Detective Heather Jones is an officer with the Peachtree City Police Department whose job is to investigate Internet crimes against children. In September 2006, Detective Jones created an account on the Adult Friend Finder (“AFF”) website. Detective Jones’s fictitious profile listed her name as April Thompson, her age as 31, and her marital status as single. The profile also described “April” as “a sweet Georgia girl” looking for men “for a discreet relationship.”

On September 15, 2006, Detective Jones logged onto the AFF website as April and entered one of the site’s chat rooms. She was then contacted via instant message by another website user, later identified as Castaneira, using the name “doinitsidewayzz.” During their conversation, Castaneira asked April’s age, and she replied that she was only 15 and asked, “Is that okay?” Castaneira responded, “Oh, my, not sure that would be legal.” He nevertheless continued to chat with April, telling her that he “was looking for something a bit casual, nothing serious, but still having fun physically.” Castaneira also asked April for her picture, and in return she asked for one of him. When they were unable to exchange pictures because of technical problems, they agreed to log off the website and use a different instant messaging service. April and Castaneira continued their chat a few minutes later, using the different service, at which time Detective Jones, who was then 29 years old, sent Castaneira a current picture of herself, claiming it was a picture of the 15-year-old April. Jones also received two pictures that Castaneira sent to April; one of those pictures was a head shot of Castaneira, and the other was a photograph of his exposed genitalia.

During the conversation that followed the exchange of photographs, Castaneira asked about April’s living situation and if she had “strict parents.” She responded that she had just recently moved to Georgia from North Carolina, that she lived with her aunt, and that she was home schooled together with her cousins. When Castaneira asked if April’s aunt would let him take her out, she replied “we don’t have to tell her”; Castaneira then stated “I like the way you think.” The two then discussed meeting in person, with Castaneira asking if April would be available to “hang out” for “at least an hour or two.” Castaneira also suggested the possibility that the two could go to a hotel. April and Castaneira then discussed the fact that April was a sexually inexperienced virgin, with Castaneira suggesting that he could perform oral sex on her.

Two days later Castaneira had a second online conversation with April, and on September 18 they had a third. April had to pause the third conversation at least twice, first telling Castaneira that her aunt was calling her and then reporting that her aunt kept coming into the room. During that conversation, Castaneira mentioned the possibility of meeting April later that week. After some discussion, they agreed to meet on the night of Wednesday, September 20, with April telling Castaneira that she would need to be home by “9:30 or so.” Castaneira then stated, “well, depending on how much time we have, we may not be able to use the hotel room to its full potential... but we could still have a lot of fun there.” He later told April that “since we won’t have all that much time, maybe we can just start slowly and plan for a different day to get a hotel room.” Castaneira then stated that they “could just park somewhere and fool around a little.” In response, April suggested meeting at a Kroger store near her, noting that there was a nearby park that few people frequented. Castaneira replied, “as long as it [our presence] isn’t suspicious [so] that a cop going by would stop.” The two then agreed to meet between 7:30 and 8:00 p.m. on Wednesday at a specific Kroger in Peachtree City.

Castaneira chatted with April again on September 19, the day before their planned meeting, and told her he had driven to Peachtree City that day to locate the Kroger. He also asked her how she would get to Kroger, and she told him that a friend’s brother would drop her off. Castaneira instructed April to wait for him outside the grocery store and told her he would be driving a black car.

On September 20, Castaneira had another online conversation with April and asked her where he would be dropping her off after they were through “hanging out”; April replied that he could just drop her off at the Kroger. When April indicated that she was nervous about her first sexual encounter, Castaneira told her, “[w]e may not go all the way tonight, but I promise to make you feel good.” He then discussed the possibility of performing oral sex and digitally penetrating her, telling April, “I think you would really like [those things].”

That evening, Detective Jones, accompanied by other undercover officers, went to the designated meeting place and stood in front of the Kroger store. She was dressed as a young girl, wearing shorts, a t-shirt, and a baseball cap, and carrying a backpack. Shortly after 8:00 p.m., a black car drove past Detective Jones and from the picture he had sent, she recognized the driver as Castaneira. Castaneira parked and he and Detective Jones walked toward each other. Detective Jones asked Castaneira if he was Ryan; when he responded affirmatively and then said, “April,” she arrested him. The police obtained a search warrant for Castaneira’s car, from which they recovered a bottle of lubricant, a condom, a laptop computer, and a small amount of marijuana.

Castaneira’s defense was that he lacked the requisite intent to commit the crimes at issue, because he did not believe he was in contact with or going to meet a 15-year-old girl. Specifically, evidence was introduced showing that Castaneira and his wife met on the AFF website and that they were “swingers” — i.e., they were a couple who, as a couple, enjoyed participating in sexual activities with other couples. Both Castaneira and his wife testified that they liked to participate in sexual “role play,” and that they advertised on the AFF website, among others, looking for other couples with similar interests. Thus, Castaneira testified, he did not go to the Kroger looking for an adolescent girl; rather, he believed April was part of a couple that enjoyed role play and that the female in that couple liked to play the role of a 15-year-old, home schooled girl. He testified, therefore, that he went to the Kroger to meet a couple “or at least part of a couple.”

In support of his testimony, Castaneira introduced a copy of an e-mail that he allegedly sent to April on September 18, 2006. The e-mail begins, “Hey Guys,” and is written as if it were going to a couple, with Castaneira asking “where all have you two searched ... for other couples to swing with” and “how long have you two been in the lifestyle?” The e-mail goes on to apologize for not remembering all the details of their conversation, explaining that Castaneira had been overwhelmed with school and work and noting that he had and his wife had received numerous responses to their online ads seeking other couples. Castaneira also writes, “So I can tell you’re into role playing. What other roles do you play? From what I can remember you [April] like to play a home-school[ed] girl. And what does he play?”

There was no evidence, however, that Detective Jones ever received this e-mail. And on cross-examination, Castaneira admitted that this was an e-mail he furnished to his lawyer sometime following his indictment, claiming that he had found it by logging into his e-mail account; neither police nor Castaneira’s own computer expert had located the e-mail on his laptop’s hard drive. Castaneira further admitted that, even after he allegedly sent the e-mail, he continued to correspond with April and arranged for their meeting. He also acknowledged that there was nothing in April’s AFF profile or in their conversations that indicated she was part of a couple.

Based on the foregoing evidence, the jury found Castaneira guilty. He then filed a motion for a new trial, which was denied. This appeal followed.

1. We first address Castaneira’s claim that the trial court erred in refusing to instruct the jury on mistake of fact. There is nothing in the record that shows Castaneira ever requested a charge on mistake of fact. Moreover, during the charge conference, the trial court stated that it was not going to give an instruction on mistake of fact, noting that the charge “which uses the word induced is not quite applicable.” The court stated that instead it would give a charge on the State’s burden of proof as to the defendant’s knowledge of the facts necessary to commit the crime. Castaneira’s lawyer did not object to this proposal, nor did she object to any part of the charge after it was given.

Despite Castaneira’s failure either to affirmatively request a charge on mistake of fact or to object to its omission, we consider this claim of error because Castaneira asserts that it represented his sole defense. See Price v. State, 289 Ga. 459, 459 (2) (712 SE2d 828) (2011) (“[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge”) (citation and punctuation omitted); Ellzey v. State, 272 Ga. App. 253, 257 (1) (612 SE2d 77) (2005) (“[i]f an affirmative defense is raised by the evidence, including the defendant’s own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request”) (punctuation and footnote omitted).

Mistake of fact represents an affirmative defense, under which “[a] person shall not be found guilty of a crime if the act . . . constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” OCGA § 16-3-5. See also Price, supra at 459 (2). A defendant is not entitled to a jury charge on this defense, however, where the evidence shows that his ignorance or mistake of fact was “superinduced by the [defendant’s own] fault or negligence.” (Citation and punctuation omitted.) Gabriel v. State, 280 Ga. 237, 240 (5) (626 SE2d 491) (2006). Here, it appears that the trial court concluded that any mistake of fact by Castaneira resulted from his own fault or negligence. We agree.

This is not a case where an adolescent led the defendant to believe that she was an adult; rather, this is a case where the intended victim told the defendant that she was underage. And, having been made aware of that fact, Castaneira nevertheless continued his contact with April, engaging her in sexually explicit conversations and arranging to meet her for a sexual encounter. Even though Castaneira claimed that he believed “April” was an adult playing the role of an adolescent, he took no steps to confirm this belief. Specifically, after being informed that April was 15, Castaneira never asked her if she was, in fact, an adult posing as a child before arranging to meet her. Thus, any mistake or ignorance on Castaneira’s part resulted from his own failure to inquire further into April’s actual age. See Gabriel, supra at 240 (5). “It follows that a charge on mistake of fact under OCGA § 16-3-5 was not authorized.” (Citation omitted.) Id.

Moreover, assuming that the evidence did raise the affirmative defense of mistake in fact, we still find no error in the trial court’s failure to give the specific charge at issue. “Atrial court... need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.” (Citations omitted.) Tarvestad, v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). In this case, the trial court charged the jury on the presumption of innocence, the State’s burden to prove Castaneira’s guilt beyond a reasonable doubt, credibility of witnesses, and criminal intent as an essential element of the crimes. The jury was further charged that when a defense was raised by the evidence, the State bore the burden of disproving it, and that Castaneira’s mere presence at the Kroger would not support his conviction. The court also gave a charge on the element of knowledge, instructing the jury that if the evidence showed “that the defendant had no knowledge that a crime was being committed or that the defendant did not knowingly and intentionally commit the charged offense, then it would be your duty to acquit the defendant as to that offense.” As the court’s charge informed the jury that the State was required to show beyond a reasonable doubt that Castaneira believed he was corresponding with and was going to meet a 15-year-old, and not an adult, the charge as a whole fairly presented Castaneira’s defense to the jury. See Butler v. State, 298 Ga. App. 129, 131 (2) (679 SE2d 361) (2009) (no error in failing to charge on mistake of fact in prosecution for the sale of alcohol to someone under the age of 21, where the charge made clear that the State was required to prove that the defendant knew that the purchaser was under 21).

2. Castaneira also asserts that the evidence is insufficient to sustain his convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes. With respect to this claim of error,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. 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.

(Citation and footnote omitted.) Wade v. State, 305 Ga. App. 819, 821 (701 SE2d 214) (2010).

To convict Castaneira of criminal attempt to commit child molestation the State was required to prove that he took a substantial step toward doing “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 [himself].” OCGA §§ 16-6-4 (a) (1); 16-4-1. To convict Castaneira of criminal attempt to entice a child for indecent purposes, the State had to prove that he took a substantial step toward soliciting, enticing, or taking “any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA §§ 16-6-5 (a); 16-4-1.

Castaneira contends that the State failed to prove beyond a reasonable doubt that he believed “April” was a 15-year-old girl, rather than an adult playing the role of an adolescent, and it therefore failed to prove that he had the requisite knowledge and intent to commit these crimes. We find no merit in this contention. While Castaneira did introduce some evidence, in the form of his September 18 e-mail, to support his claim that he believed he was dealing with an adult, that evidence was not conclusive. As noted above, the State impeached that evidence by showing that Detective Jones never received it, and that neither Castaneira’s own computer expert nor local police were able to locate that e-mail on the hard drive of Castaneira’s laptop. Moreover, even after Castaneira allegedly sent that e-mail, he continued conversing with “April” without clarifying her age. And the content of his messages, including his questions about how she would get to the Kroger, where he should drop her off after their encounter, and what time she had to be home, indicated a belief that he was communicating with someone under the age of 16. Additionally, although Castaneira contended that he believed “April” was part of a couple, he conceded during his testimony that nothing in her AFF profile or in their conversations supported that belief. Finally,

given that [Castaneira] testified at trial as to the reasons underlying his conduct, it was solely for the jury, viewing that testimony in light of the other evidence, to assess [Castaneira’s] credibility and determine whether his testimony was truthful. And if the jury concluded that his testimony was not truthful, as we must assume it did, the jury was entitled to take his untruthfulness as substantive and affirmative evidence of his guilt.

(Citations and punctuation omitted.) Louisyr v. State, 307 Ga. App. 724, 730 (1) (706 SE2d 114) (2011). Accordingly, the evidence is sufficient to sustain the convictions. See Logan v. State, 309 Ga. App. 95, 99-100 (2) (a) (709 SE2d 302) (2011) (evidence that defendant asked an undercover officer posing online as adolescent to engage in sexual intercourse and oral sodomy, even after being told that person was 14, and that defendant went to the location the two had discussed meeting for sex, in possession of a condom on his person, sufficed to show that defendant took a substantial step toward committing child molestation); Smith v. State, 306 Ga. App. 301, 302 (1) (702 SE2d 211) (2010) (affirming conviction for attempted child molestation where evidence showed that defendant engaged in sexually explicit conversations with the victim, drove to an arranged location to meet victim, and fled from officers).

3. Castaneira next claims that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance, Castaneira bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). If Castaneira cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Here, we find that Castaneira failed to establish that his lawyer’s performance was deficient.

In determining whether defense counsel afforded his client adequate representation, “we bear in mind that ‘judicial scrutiny of counsel’s performance must be highly deferential.’ Strickland, 466 U. S. at 689 (III) (A).” Arnold v. State, 292 Ga. 268, 270 (2) (a) (737 SE2d 98) (2013). Thus,

[t]o demonstrate deficient representation, a convicted criminal defendant must show that counsel’s representation fell below an objective standard of reasonableness. Such a defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case.

(Citation, punctuation and footnote omitted.) Smith v. State, 302 Ga. App. 128, 133 (2) (690 SE2d 449) (2010).

Castaneira’s ineffective assistance claim is premised on his lawyer’s failure to object to the admission of certain material recovered from the hard drive of his laptop computer. This material, which Castaneira contends unduly prejudiced him, consisted of pornographic images, including videos that showed Castaneira performing sex acts either alone or with his wife. At the motion for new trial hearing, trial counsel testified that her decision not to object to the admission of these materials was strategic in nature. She explained that the evidence included “some information that we needed in our case in chief.... And I felt like it [this evidence] spoke directly to our defense, which was that he was a swinger----’’Additionally, the trial transcript shows that trial counsel made use of this evidence to show that while Castaneira was a sexually active adult, there was no evidence that he was a pedophile. Trial counsel emphasized, both in her examination of witnesses and in her opening and closing arguments, that none of the pornographic images found on Castaneira’s computer contained pictures of children or adolescents.

Given the strategic nature of counsel’s decision with respect to this evidence, it “can provide no grounds for reversal unless it was so patently unreasonable that no competent attorney would have chosen it.” (Citation, punctuation and footnote omitted.) Mantooth v. State, 303 Ga. App. 330, 336 (1) (b) (693 SE2d 587) (2010). And it is Castaneira who bears the burden of rebutting the strong presumption that this strategy was a reasonable one, made in the exercise of reasonable professional judgment. Thornton v. State, 301 Ga. App. 784, 793 (4) (689 SE2d 361) (2009). Castaneira cannot carry this burden.

The evidence against Castaneira was so substantial that his defense was to concede the conduct, but argue a lack of knowledge or intent. And to prove that lack of knowledge, Castaneira had to reveal his lifestyle as a swinger to the jury. Given these circumstances, trial counsel’s decision to use the information and images contained on Castaneira’s computer to argue that he would never knowingly attempt to seduce a 15-year-old was not an unreasonable strategy. See, e.g., Norton v. State, 320 Ga. App. 327, 333 (3) (739 SE2d 782) (2013) (given the substantial evidence against defendant, defense counsel acted reasonably in conceding possession charges and arguing that while defendant was a user of methamphetamine, he was not a drug trafficker); Paul v. State, 257 Ga. App. 86, 87 (570 SE2d 399) (2002) (“considering the overwhelming evidence” that defendant had committed the crime at issue, trial counsel acted reasonably in arguing “that the State could prove robbery, but not armed robbery”). “That this strategy was ultimately unsuccessful in securing a defense verdict on all charges does not show that trial counsel’s” performance was deficient. Farris v. State, 293 Ga. App. 674, 678 (3) (667 SE2d 676) (2008). Accordingly, the performance of Castaneira’s trial counsel was not deficient.

4. Castaneira also asserts that the trial court erred in admitting into evidence transcripts of all of the online conversations between Castaneira and Detective Jones, posing as April. We disagree.

Detective Jones testified that although she could print out copies of her computer screen as an online chat occurred, she did not preserve the conversations in this fashion. Instead, she prepared a transcript of each internet chat by copying the text that appeared in the “instant message” box on her computer screen and then pasting that text into a word processing document. Detective Jones stated that she always copied and pasted the text so that the conversation appeared in the transcript in the order in which it actually occurred. In cases such as this, where more than one conversation occurred, Detective Jones always numbered each transcript and wrote on it the date that the particular conversation took place. After creating each transcript, she would then print it out, initial it, and place it in the case file. The detective also stored the transcript on the computer she used for her Internet investigations, which was a computer provided to the Peachtree City Police Department by the Georgia Bureau of Investigation for use solely in investigations involving Internet crimes against children.

Relying on Detective Jones’s testimony that she could have printed out copies of her computer screen as each conversation transpired, Castaneira argues that the trial court abused its discretion in admitting the transcripts, because they violated OCGA § 24-5-4, which provides, “[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” OCGA § 24-5-4 (a). This argument is without merit.

Under Georgia law, transcripts of conversations that occurred via online instant messaging are admissible provided they are created and/or authenticated by someone who participated in that conversation, and who testifies “that the transcript accurately represent^] the on-line conversation.” (Footnote omitted.) Ford v. State, 274 Ga. App. 695, 697 (1) (61-7 SE2d 262) (2005). Here, Detective Jones testified that she participated in all of the online conversations with Castaneira; that she created the transcripts by copying the text exactly as it appeared on her computer screen, without making any additions, omissions, or other alterations to that text; and that the transcript reflected the exact words used in the conversation, as well as the online names used by the persons who typed those words. “Under these circumstances, [Detective Jones’s] testimony was tantamount to that of a witness to an event and was sufficient to authenticate the transcript.” (Footnote omitted.) Id. at 698 (1). See also Hammontree v. State, 283 Ga. App. 736, 739 (3) (642 SE2d 412) (2007) (transcript of online conversation properly admitted where witness testified “that she was an actual participant in the instant message session at issue [,] . . . confirmed that the words printed on the paper were in fact the words used in the conversation^ and] . . . that the transcript... was actually printed from the computer... that she had used during the conversation”).

Additionally, we find no merit in Castaneira’s claim that because the transcripts introduced at trial were photocopies of the ones originally printed out by Detective Jones, their admission violated OCGA § 24-5-4. The best evidence rule does not prohibit the introduction of photocopies, so long as the originals are “satisfactorily accounted for.” OCGA § 24-5-4 (a). Here, the original transcripts were accounted for as having been placed in the case file, and there is no evidence that the photocopied transcripts were not exact duplicates of the originals. “Under these facts, the trial court did not abuse its discretion in admitting photocopies.” (Citation omitted.) Chastain v. State, 231 Ga. App. 225, 226 (2) (498 SE2d 792) (1998).

5. Castaneira further claims that the trial court erred in sentencing him, because it failed to follow the guidelines set forth in OCGA § 17-10-6.2. This claim of error is without merit because, as its plain language demonstrates, OCGA § 17-10-6.2 does not apply to convictions for criminal attempt to commit child molestation or to entice a child for indecent purposes; rather, it applies only to the completed crimes. See OCGA § 17-10-6.2 (a) (5), (6).

Here, the trial court sentenced Castaneira to concurrent sentences of ten years imprisonment for both criminal attempt to commit child molestation (Count 1) and criminal attempt to entice a child for indecent purposes (Count 2); twelve months imprisonment for possession of marijuana (Count 6), concurrent with Count 1; ten years probation for computer pornography and child exploitation (Count 3), consecutive to Count 1; and ten years probation for obscene Internet contact (Count 4), consecutive to Count 3. The court also imposed fines of $25,000, $10,000, and $1,000 on Counts 3, 4, and 6, respectively. These sentences were within the statutory range. See OCGA §§ 16-4-6 (b) (criminal attempt to commit a felony punishable by “imprisonment for not less than one year nor more than one-half the maximum period of time” that could be imposed for a conviction of the crime attempted); 16-6-4 (b) (1) (a first offense of child molestation punishable “by imprisonment for not less than five nor more than 20 years”); 16-6-5 (b) (enticing a child for indecent purposes punishable “by imprisonment for not less than ten nor more than 30 years”); 16-13-2 (b) (misdemeanor possession of marijuana punishable “by imprisonment for a period not to exceed 12 months or a fine not to exceed $1,000.00, or both”); 16-12-100.2 (d) (2) (computer pornography and child exploitation punishable “by imprisonment for not less than one nor more than 20 years and by a fine of not more than $25,000.00”); 16-12-100.2 (e) (2) (obscene Internet contact with a child punishable “by imprisonment for not less than one nor more than ten years or by a fine of not more than $10,000.00”). In light of this fact, the trial court did not err in sentencing Castaneira.

6. Finally, Castaneira contends that the trial court erred in failing to merge his convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes. We disagree.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Here, the State alleged that Castaneira took substantial steps toward committing both child molestation and enticing a child for indecent purposes when he: (i) solicited April, whom he believed to be 15 years old, to meet at the Kroger “for the purpose of engaging in acts of sexual intercourse and oral sodomy involving the sex organs of the person believed by the accused to be a child under 16 years of age and the mouth of the accused”; and (ii) traveled to the Kroger to meet with April. Because his conviction for both crimes was premised on the exact same conduct, Castaneira argues, the trial court should have merged those convictions as a matter of fact.

Under OCGA § 16-1-7, when the same conduct of an accused establishes “the commission of more than one crime, the accused may be prosecuted for each crime,” unless “[o]ne crime is included in the other.” OCGA § 16-1-7 (a) (1). To determine if one crime is included in and therefore merges with another, we apply the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine “whether each offense requires proof of a fact which the other does not.” Lucky v. State, 286 Ga. 478, 481 (689 SE2d 825) (2010). Here, to convict Castaneira of criminal attempt to commit child molestation, the State had to prove that he took a substantial step toward doing an immoral or indecent act to or with someone he believed to be under the age of 16, “with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). For purposes of convicting Castaneira of criminal attempt to entice a child for indecent purposes, the State was not required to prove that he was acting with an intent or desire to satisfy the sexual desires of either April or himself. Rather, to convict Castaneira of that crime, the State had to prove that he took a substantial step toward moving “any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). See Leon v. State, 237 Ga. App. 99, 107 (5) (513 SE2d 227) (1999) (unlike child molestation, enticing a child for indecent purposes has an asportation element). The State did not need to prove a substantial step toward the asportation of April, however, to convict Castaneira of criminal attempt to commit child molestation. Accordingly, the convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes each required “proof of a fact which the other [did] not.” Drinkard, supra at 215. The trial court, therefore did not err in sentencing Castaneira on both of these convictions.

Decided March 26, 2013

Reconsideration denied April 11, 2013

Elizabeth P. Bradley, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Jeremy M. Hayes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       OCGA §§ 16-4-1; 16-6-4 (a) (1).

       OCGA §§ 16-4-1; 16-6-5 (a).

       OCGA § 16-12-100.2 (d) (1).

       OCGA § 16-12-100.2 (e) (1).

       OCGA § 16-13-2 (b).

       Although the website states that no one under the age of 18 is permitted to access it, the site does not require that a user provide proof of their age.

       OCGA § 24-5-4 was in effect at the time of Castaneira’s trial. Effective January 1, 2013, this Code provision was replaced by OCGA § 24-10-1002 (“[t]o prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required”) and OCGA § 24-10-1003 (“A duplicate shall be admissible to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original.”).

       That statute provides, in relevant part, that when a defendant is convicted of certain sexual offenses, including child molestation and enticing a child for indecent purposes, he “shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense . . . and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year.” OCGA § 17-10-6.2 (b). The statute also grants the trial court discretion, under certain circumstances, to “deviate from the mandatory minimum sentence.” OCGA § 17-10-6.2 (c) (1).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A2194.
    LOYA v. THE STATE.
    (740 SE2d 382)
   Branch, Judge.

Lorenzo Alan Loya was tried by jury and found guilty of felony public indecency for urinating in public. On appeal, he contends the trial court erred by refusing to charge public drunkenness as a lesser included offense of public indecency. He also contends one aspect of his sentence is void.

On appeal, we view the evidence in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). Moreover, the State does not take issue with Loya’s statement of facts. See Court of Appeals Rule 25 (b) (1) (“Except as controverted, appellant’s statement of facts may be accepted by this Court as true.”). The parties agree that Officer Whitfield saw Loya walk along a road and stop and urinate on a large boulder at the same time that a woman was driving in the opposite direction. Whitfield saw that the woman appeared to be shocked, and Whitfield testified that he could see Loya’s genitals when Loya was urinating. Loya was intoxicated at the time. The State also introduced two similar occurrences. In the first, Loya was arrested and, in August 2003, pled guilty to exposing himself in a courtroom to a female probation officer. In the second, Loya was convicted in November 2005 of exposing himself outside a public library.

1. Loya requested a charge on public drunkenness as a lesser included offense of public indecency. The trial court denied the request for the reason that “the defendant’s defense is that the public indecency did not occur.” On appeal, Loya contends that the trial court erred in refusing this charge because the jury could have concluded from the evidence that Loya was guilty of public drunkenness and that his public urination could have been considered an “indecent condition or act” under OCGA § 16-11-41.

One offense is not included in another under OCGA § 16-1-6 (1) if each offense requires proof of a fact that the other does not. Drinkard v. Walker, 281 Ga. 211, 213 (636 SE2d 530) (2006); Stuart v. State, 318 Ga. App. 839, 841 (734 SE2d 814) (2012). Loya was charged with public indecency in that he “did perform a lewd exposure of the sexual organs in a public place____” See OCGA § 16-6-8 (a) (2). Public drunkenness requires proof of intoxication in a public place and proof that the drunkenness was made manifest in one of several ways, one of which is that the defendant exhibited an “indecent condition or act.” OCGA § 16-11-41 (a).

The crime of public drunkenness requires proof that Loya was intoxicated, which the crime of public indecency does not. The crime of public drunkenness does not require a' lewd exposure of sexual organs, which is required by the crime of public indecency. And the crime of public indecency requires proof of exposure of sexual organs, which the crime of public drunkenness does not. Accordingly, as the crime of public drunkenness requires proof of facts that public indecency does not, the offense of public drunkenness is not included in the crime of public indecency pursuant to OCGA § 16-1-6 (1).

Loya also contends that OCGA § 16-1-6 (2) regarding lesser included offenses could apply. OCGA § 16-1-6 (2) provides that a crime is included in another if “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” Loya argues that because public drunkenness may be shown by an “indecent condition or act,” that element of the crime only differs in degree from the element of public indecency that requires showing “lewd exposure of the sexual organs.” But Loya ignores the fact that public drunkenness also requires a showing of intoxication and therefore differs from public indecency in a way not covered by OCGA § 16-1-6 (2).

Accordingly, we find no error in the trial court’s refusal to charge the jury on public drunkenness as a lesser included offense of public indecency.

2. On January 13, 2010, the trial court sentenced Loya to five years confinement, with two years to serve and three years probation. In addition, as a special condition of probation, the court ordered Loya to register as a sex offender. Loya contends the trial court erred by requiring him to register because (1) public indecency is not a crime for which conviction requires registration as a sex offender under OCGA § 42-1-12 (e), and (2) requiring him to register constitutes an “indeterminate sentence” in that under the registration statute he must comply with the registration requirements for his entire life. OCGA § 42-1-12 (f) (6). We find no error.

(a) The State essentially concedes that Loya’s conviction does not fall within the type of conviction for which sex offender registration is required, and our review of OCGA § 42-1-12 confirms Loya’s position. It is well established, however, that a trial court has broad discretion to impose appropriate conditions of probation, and “the appellate courts will approve any reasonable condition imposed for probation of sentence by the trial court in the absence of express authority to the contrary.” (Citation and punctuation omitted.) Hollie v. State, 287 Ga. 389, 390 (1) (696 SE2d 642) (2010). See also Ballenger v. State, 210 Ga. App. 627, 628 (1) (436 SE2d 793) (1993) (“The trial judge is expressly authorized by OCGA § 17-10-1 (a) to ‘suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper... .’ ”) (citation omitted). And the Supreme Court of Georgia has held that there is no authority prohibiting a trial court from ordering sex offender registration as special condition of probation for those who commit crimes that come within the registration statute. Hollie, supra at 390 (1). That court also held that the registration statute itself “contains no language expressly prohibiting a superior court from imposing sex offender registration as a probation condition.” Id.

The question remaining, however, is whether a trial court may order sex offender registration for felony public indecency as a condition of probation even though such registration is not required by the registration statute. To reiterate what we stated above, the appellate courts will approve “any reasonable condition imposed for probation of sentence by the trial court in the absence of express authority to the contrary.” (Citations and punctuation omitted.) Hollie, supra at 390 (1). This Court has previously upheld a special condition requiring the defendant “to wear a fluorescent pink plastic bracelet imprinted with the words ‘D.U.I. CONVICT’ until further order of the court.” Ballenger, supra at 628. We upheld the condition even though it was “not expressly authorized by specific Georgia statute” because it was “tailored by a trial court” to the circumstances. Id. at 628 (1).

In this case, Loya exposed himself to a female motorist and, considered along with his prior convictions, the trial court was authorized to conclude that Loya was a recidivist who engages in a type of sexual offense harmful to the public. The condition was tailored to the crime and is a reasonable condition under the circumstances. Requiring Loya to register is also reasonable because registration is considered regulatory and not punitive in nature, and the argument that registration is cruel and unusual punishment under the Eighth Amendment has been rejected. Wiggins v. State, 288 Ga. 169, 172 (3), (4) (702 SE2d 865) (2010); Rainer v. State of Ga., 286 Ga. 675, 676 (1) (690 SE2d 827) (2010).

Decided March 22, 2013

Reconsideration denied April ll, 2013

George B. Sparks, Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

Accordingly, we conclude that under the facts of this case, the trial court was authorized to order Loya to register as a sex offender.

(b) With regard to Loya’s second argument, the Supreme Court has already held that even though “lifetime registration is required by the sex offender registration statute [,]” where sex offender registration is required as a condition of probation, registration is limited in the same manner as probation is limited — to the maximum sentence allowed by law as the punishment for the crime. (Footnote omitted.) Hollie, supra at 390-391 (2). As explained by the Supreme Court,

[t]he period of time to which [the defendant] is subject to registration as a special condition of probation, however, is governed by OCGA § 42-8-34 (c) (the period of probation or suspension “shall not exceed the maximum sentence of confinement which could be imposed on the defendant”).

(Citation omitted; emphasis in original.) Id. at 391 (2), and cases cited therein. Thus, like in Hollie, “sex offender registration as a special condition of probation does not exceed the maximum penalty for [the defendant’s] conviction.” Id. See also Ballenger, supra at 629 (3) (“The conditions of probation cannot exceed the length of the sentence.... [T]he ability of the court to enforce the terms of the conditions of the probation would lapse at that point.”). Accordingly, because Loya’s sex offender registration as part of his probation is thus limited to the maximum sentence allowed by law as punishment for that crime, the trial court therefore did not improperly give Loya an “indeterminate sentence” by requiring him to register as a sex offender.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       The crime was a felony because Loya had been convicted of public indecency on two previous occasions. See OCGA § 16-6-8 (c).

       OCGA § 16-11-41 (a) provides:
      A person who shall be and appear in an intoxicated condition in any public place or within the curtilage of any private residence not his own other than by invitation of the owner or lawful occupant, which condition is made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language, is guilty of a misdemeanor.

       OCGA § 16-1-6 (1) provides: “An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when] it] is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.”

       “A person commits the offense of public indecency when he or she performs any of the following acts in a public place... (2) Alewd exposure of the sexual organs.” OCGA § 16-6-8 (a) (2).

       The facts show that Loya was not convicted of a “criminal offense against a victim who is a minor,” see OCGA § 42-1-12 (a) (9) (B) and (e) (1), nor convicted of a “dangerous sexual offense,” see OCGA § 42-1-12 (a) (10) (B) and (e) (2). The remaining subsections of OCGA § 42-1-12 (e) are clearly inapplicable.

       In addition to the similar transactions mentioned in this opinion the trial court also took into consideration Loya’s 1987 conviction for aggravated child molestation.


author: Dillard, Judge.

text:
    A12A2202, A12A2251, A12A2252.
    GOD’S HOPE BUILDERS, INC. et al. v. MOUNT ZION BAPTIST CHURCH OF OXFORD, GEORGIA, INC. et al. (three cases).
    (741 SE2d 185)
   Dillard, Judge.

In this case involving a dispute over church property, Mount Zion Baptist Church of Oxford, Georgia, Inc. (the “church”), a domestic nonprofit corporation, and 34 individuals claiming to be members of the church, including the church’s pastor (collectively “plaintiffs”), filed a lawsuit against Clayton Dial and Angela Ballard, as officers of the church, and God’s Hope Builders, Inc. (“GHB”), also a domestic nonprofit corporation (collectively “defendants”), seeking, inter alia, injunctive and declaratory relief. Specifically, the plaintiffs alleged that Dial and Ballard unlawfully conveyed all of the church’s real property and assets to GHB and, therefore, plaintiffs sought to both enjoin the defendants from wasting the property and to set aside the conveyance. After the parties stipulated to a bench trial on the limited issues of whether plaintiffs had standing to contest defendants’ actions and whether Dial’s conveyance of the property was lawful, the trial court ruled in plaintiffs’ favor and ordered GHB to convey the disputed property back to the church.

However, with other issues remaining unresolved, the trial court did not issue a final judgment. Consequently, defendants filed a motion requesting that the trial court order a meeting to allow the church membership to vote on whether to ratify the property conveyance. Plaintiffs responded by filing a motion for summary judgment, arguing that defendants had no standing to request such a meeting because the church had recently voted to expel them from membership. Following a hearing, the trial court granted plaintiffs’ motion and, shortly thereafter, it granted plaintiffs’ motion for a supersedeas bond.

In Case No. A12A2202, defendants appeal the trial court’s order issued after the bench trial, arguing that the trial court erred in ruling that (1) the plaintiffs were proper members of the church and, thus, had standing to contest defendants’ actions; (2) plaintiffs’ complaint was not barred by statute; and (3) defendant Dial did not have the authority to convey the church’s property. In Case No. A12A2251, defendants contend that the trial court erred in granting plaintiffs’ motion for partial summary judgment, which argued that defendants had been expelled as church members and had no standing to request a court-ordered special meeting. And in Case No. A12A2252, defendants contend that the trial court erred in granting plaintiffs’ motion for a supersedeas bond. For the reasons set forth infra, we find that the record was insufficient to allow the trial court to determine the crucial threshold issue of whether the plaintiffs represented a majority of the church and, thus, had standing to contest defendants’ actions. Accordingly, we vacate the trial court’s rulings and remand the case for further proceedings consistent with this opinion.

The record shows that the Mount Zion Baptist Church of Oxford, Georgia, was founded in the mid-nineteenth century and, indeed, pre-dated the 1845 formation of the Southern Baptist Convention, with which it affiliated shortly thereafter. In 1995, the church incorporated and adopted a constitution and bylaws, which were replaced in 2000. The constitution reiterated the church’s Southern Baptist affiliation, providing in relevant part:

As far as may be consistent with the principles and teaching of the Bible, this church shall cooperate with and have representation in the denominational causes sponsored by Southern Baptists including the Southern Baptist Convention, State Convention, and City Association, and other affiliated auxiliaries and causes of Baptist churches of the city, state, nation and world.

Additionally, the bylaws established requirements for membership, established church officers and their respective duties, and provided the church’s organization and general governance.

Angela Ballard is a member of the church and has served in several of the church’s officer positions, including financial secretary/ treasurer and clerk. Clayton Dial is Angela Ballard’s father and has been a member of the church for over 50 years. At the time of the events that gave rise to this litigation, he served as the church’s sole deacon. In addition to various other powers conferred upon the church’s deacons, the bylaws provide that “[t]he property and business of the corporation shall be managed by its Board of Directors (also referred to as its Deacon Body).”

Throughout the years, attendance at the church had fluctuated, but by February 2010, only a dozen or so people regularly attended Sunday worship services. Around that same time, the church was searching for a new pastor, and Dial and Ballard were put in contact with Pastor Christopher Shannon Allen. And although Pastor Allen had been ordained in an Independent Baptist Church and had only preached in Independent Baptist churches, Dial nevertheless invited him to preach at Mount Zion in early February 2010 and extended this invitation each week for the next four or five weeks. Finally, in the middle of March 2010, Dial asked Allen to be the church’s full-time pastor, Allen accepted, and the church voted in favor of his hiring.

Over the course of the next few months, church attendance began to rise as did church membership. Many of these new members purportedly joined the church at the end of Sunday worship services by going before the congregation at the front of the church, professing their faith, and expressing their wish to become a member, at which point the congregation, including Dial, voted to welcome them as new members. And by the beginning of July 2010, the church’s congregation had grown to the extent that approximately 50 to 60 people regularly attended Sunday worship services, and many of these same people also attended and voted in church business meetings.

On Sunday, July 4, 2010, Dial announced during the worship service that as chairman of the deacons, he was freezing membership in the church for a period of 50 days and that a special meeting to discuss membership would be scheduled for July 7, 2010. This announcement surprised Pastor Allen, as well as many others in the congregation, as Dial had given no previous indication that he was dissatisfied with any of the pastor’s actions or the inductions of the new members.

On July 7, 2010, Dial and Ballard arrived at the church with an attorney, whom they had retained to mediate the meeting. The attorney opened the meeting by informing those in attendance of Dial and Ballard’s contention that individuals who had purportedly joined the church since March 2010 had not been properly admitted into membership. Unsurprisingly, many of the new members became upset and vociferously disputed Dial and Ballard’s assertion. At that point, the attorney suggested that the issue be resolved by immediately voting on the new members; however, Dial rejected this suggestion and then summarily dismissed the attorney from the proceedings. Shortly thereafter, Dial and Ballard also abandoned the meeting, but those remaining decided to hold a vote to confirm the membership of those who had joined the church since March 2010.

Fearing that the church was being taken over by Independent Baptists, on August 5, 2010, Dial — as the sole director of the church’s corporation — conveyed , the church’s property and assets, via warranty deed and bill of sale, to God’s Hope Builders, a nonprofit corporation affiliated with the Southern Baptist Convention. Dial received no consideration from GHB for conveying the property and assets, and one of GHB’s directors testified (which Dial disputes) that the corporation was holding the church’s property until a new church could be formed, even though the conveyance placed no restrictions on GHB’s use of the property. On the Sunday following the conveyance, members of the church, including Pastor Allen, arrived to find the church locked and “No Trespassing” signs posted on the property. And when Pastor Allen telephoned Dial to inquire about the situation, Dial informed him of the property conveyance. Subsequently, however, Dial, Ballard, members of their family, and a few others sympathetic to their actions began worshiping at the church as a separate congregation.

Shortly thereafter, Allen and 36 other purported members of the church filed a complaint on the church’s behalf, in which they alleged, inter alia, that Dial and Ballard unlawfully conveyed all of the church’s real property and assets to GHB and in which they sought to both enjoin the defendants from wasting the property and set aside the conveyance. Defendants answered the complaint, and after a significant discovery period, the parties agreed to a bench trial that would be conducted for the limited purpose of determining whether the plaintiffs constituted a majority of the church sufficient to confer standing to represent the church and whether Dial’s conveyance of the church’s property and assets was lawful.

A few months later, a three-day bench trial was conducted, during which numerous witnesses testified, including Dial, a director of GHB, and several, but not all, of the purported members. In addition, dozens of exhibits — including the church’s articles of incorporation and corporate bylaws — were submitted as evidence. And two months after the bench trial concluded, on July 6, 2011, the trial court issued an order finding that the plaintiffs represented a majority of the church and, thus, had standing to bring the action. The court further held that Dial’s conveyance of the church’s property and assets was unlawful. Consequently, the trial court ordered GHB to convey the property and assets back to the church.

Because other issues in the case remained unresolved, the trial court’s order was not initially deemed final, and shortly after it was issued, defendants filed a motion requesting that the court order a meeting for the church membership to vote either to ratify or repudiate the conveyance of the church property and assets to GHB. In response, plaintiffs filed a motion for partial summary judgment, arguing that, as the majority of the church, plaintiffs had voted to expel Dial, Ballard, and nine others as members of the church and, therefore, defendants lacked standing to request a court-ordered meeting of the membership. The trial court agreed and issued orders granting plaintiffs’ motion for partial summary judgment and denying defendants’ motion for a court-ordered meeting.

Nearly six months later, the plaintiffs dismissed their remaining claims, and on December 21, 2011, the trial court made its July 6, 2011 order its final judgment. Defendants, after earlier filing a notice of appeal of the trial court’s grant of plaintiffs’ motion for partial summary judgment, then filed a notice of appeal of the trial court’s final judgment. And prior to defendants’ appeals being docketed, plaintiffs filed a motion for supersedeas bond, which the trial court also granted. Defendants filed a notice of appeal of this latest order as well. These consolidated appeals follow.

At the outset, we note that while we apply a de novo standard of review to any questions of law decided by the trial court, “factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.” Indeed, because the clearly-erroneous test in effect employs the same standard as the any-evidence rule, “appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.” With these guiding principles in mind, we now turn to defendants’ specific claims.

In Case No. A12A2202, in their first enumeration of error, defendants contend that the trial court erred in finding that the plaintiffs represented a majority of the church’s membership and, therefore, had standing to sue on behalf of the church. Because we find that the record was insufficient to allow the trial court to definitively determine this crucial threshold issue, we vacate, for the time being, all of the trial court’s rulings on appeal and remand the case for further proceedings consistent with this opinion.

It is well established that the principles embodied in the First Amendment to the United States Constitution and its counterpart provisions in the Georgia Constitution preclude our courts from “deciding questions involving a church’s internal affairs in matters of theology, church discipline, or church governance.” Specifically, courts may not inquire into a controversy relating to matters of faith, teaching, doctrine, and discipline of a church, “such as expulsion from membership, internal procedures, quorums, or determination of membership in the church.” However, this sacrosanct principle, which prevents a court from exercising jurisdiction over ecclesiastical matters, is not violated when “a court is called upon to decide a civil dispute over control of church property.” Indeed, civil courts do not inhibit free exercise of religion “merely by opening their doors to disputes involving church property.” In fact, our Supreme Court has acknowledged that in disputes involving congregational churches, courts of equity will take jurisdiction over disputes involving churches “when property rights are involved and when the suit is brought on behalf of a majority of the congregation.” Consequently, while as a general rule courts are precluded from inquiring into determinations of church membership, a trier of fact is “not forbidden to consider the composition of the church membership for the limited purpose of determining standing to bring a claim on behalf of the church membership.”

In the case sub judice, it is undisputed that the church is a congregational church and that the focus of this litigation is on the lawfulness of Dial and Ballard’s conveyance of the church’s property and assets to GHB. Thus, in order to determine the threshold matter of whether plaintiffs had standing to bring this action, we need only examine whether the trial court was correct in finding that plaintiffs represent a majority of the church’s members. And such an examination first requires us to review the church’s bylaws governing membership, which we must construe according to contract principles.

Here, the church’s membership requirements are governed by Article I, Section A of the church’s bylaws, which provides as follows:

Upon approval of the church, applicants may be received or accepted by:
1. Faith: Any person publicly confessing personal faith in the Lord Jesus Christ, giving evidence of a regenerate heart and adapting [sic] the views of faith and practice held by the church, after baptism shall be admitted into the membership of the church.
2. Statement: Those who have been baptized upon profession of faith and previously accepted into the membership of a Baptist church of like faith and order, but who because of loss of records or similarly unavoidable circumstances have no regular letter of dismissal, shall be received into membership.
3. Letters: Members from Baptist churches of like faith and order may be received into membership by letter of recommendation from such churches.
4. Restoration: Any member whose name has been erased from the church roll or who has been excluded from church membership, may be restored upon request upon confession of any error committed or by giving satisfactory evidence to the church of having maintained a Christian character.

With the foregoing section of the bylaws as a contextual backdrop, the trial court heard from several different witnesses, who testified that many of the plaintiffs purportedly became members of the church by approaching the front of the church during a worship service, professing their faith, and then having their request to join voted upon by the congregation in attendance. In addition, the trial court also heard testimony from the defendants that only six of the plaintiffs were listed as members on the church’s roll book.

In the section of its July 6, 2011 order in which it analyzed whether plaintiffs constituted a majority of the church’s membership, the trial court noted that (1) defendants acknowledged that three of the plaintiffs joined the church through a profession of faith, (2) defendants stipulated to six of the plaintiffs’ membership, (3) five of the plaintiffs were stipulated to as no longer being members, and (4) no evidence was presented regarding the status of two of the plaintiffs. The court then noted that three of the plaintiffs, all of whom were members of Pastor Allen’s immediate family, claimed membership pursuant to Article I, Section A (3) of the church’s bylaws via letters from a church of “like faith and order.” However, the court found that the phrase “like faith and order” was ambiguous and that this ambiguity was not clarified by the evidence at trial, which conflicted as to whether the phrase meant that only letters received from another Southern Baptist church were acceptable or that letters from an Independent Baptist church would also suffice. And based on this conflict, the court concluded that resolving the ambiguity would require it to improperly delve into church ecclesiastical issues. Accordingly, the court found that it could not address the membership status of plaintiffs who claimed membership pursuant to Article I, Section A (2) or (3) of the bylaws.

The trial court then addressed the remaining 16 plaintiffs, who claimed that they had become members of the church through a profession of faith under Article I, Section A (l). In doing so, the court acknowledged that pursuant to this section of the bylaws, an individual who professed his or her faith during a worship service becomes a member of the church “after baptism.” The court then noted: “Therefore, upon documentation of the baptism of each such plaintiff being presented to the church clerk, he or she shall be a member pursuant to Article I, Section A (1) of the Church bylaws, if documentation thereof has not already been filed.” Subsequently, the trial court concluded that the evidence showed that the plaintiffs “represent a majority of the Church membership to enable the Court to address the issue before it.”

However, given that there was no evidence presented during the bench trial regarding the baptism of these remaining 16 plaintiffs, the trial court’s conclusion appears to be based upon an interpretation of Article I, Section A (1), in which baptism is not a prerequisite to full membership, but is instead only a formality that can be demonstrated at a later time and has little to no bearing on the plaintiffs’ argument that they currently have standing to contest this action. We find that such an interpretation essentially renders the church’s bylaws’ phrase “after baptism” meaningless. Thus, the trial court erred in relying on that construction of the bylaws to determine that the plaintiffs were currently members and constituted a majority of the church.

Moreover, even if we agreed — based on equitable estoppel or other grounds- — -that all of the plaintiffs were members of the church, the trial court’s July 6, 2011 order makes no reference to how it determined that plaintiffs constituted a majority of the church or, indeed, what constituted the totality of the membership. So, while defendants submitted some evidence — in the form of the church roll book — that the total church membership was such that even if all plaintiffs were deemed members they would not amount to a majority, we are still left to speculate as to whether the trial court found this evidence to be wholly without probative value or whether it instead found some on the roll book to be members but not others. Indeed, given defendants’ concession that some of the plaintiffs were members stemmed from their names being included in the church roll book, it would seem that the trial court considered the roll book to be at least somewhat probative. In addition, the trial court’s order is rendered more confusing when it appears to dismiss the threshold question of plaintiffs’ standing and its own jurisdiction by concluding that because no one in the church membership — Dial and Ballard excluded — ratified or approved the transfer, “it is unnecessary to determine whether the plaintiffs constitute a majority of the Church membership.”

Decided March 28, 2013

Reconsideration denied April 11, 2013.

Greer, Stansfield & Turner, Robert H. Stansfield, for appellants.

Waldrop & Bootcheck, Michael S. Waldrop, for appellees.

Accordingly, we vacate the trial court’s July 6, 2011 order and because all of the other issues on appeal hinge on the threshold question of whether plaintiffs constitute a majority of the church, we also vacate, for the time being, the trial court’s orders granting plaintiffs’ motion for partial summary judgment and plaintiffs’ motion for supersedeas bond. On remand, we direct the trial court to definitively determine whether plaintiffs are members of the church pursuant to the church’s bylaws — to the extent that it can do so without engaging in a subjective analysis of ecclesiastical matters — and whether plaintiffs constitute a majority based on the church’s total members so as to have standing to bring suit. In doing so, we leave it to the trial court’s discretion as to the procedural vehicle that can best accomplish this determination. Furthermore, if the trial court determines that plaintiffs constitute a majority of the church, it need not revisit the remainder of its July 6, 2011 order or the other two orders that gave rise to these appeals. And following the trial court’s determination, the losing party may appeal the determination and any of the orders that were previously on appeal.

Judgment vacated and case remanded with direction.

Ellington, C. J., and Phipps, P. J., concur in judgment only.

       Neither party disputes the fact that Allen was not the first Independent Baptist to preach or serve as pastor at Mount Zion. In fact, the church had a history of hiring both Independent and Southern Baptists as pastors.

        Washington v. Harrison, 299 Ga. App. 335, 336 (682 SE2d 679) (2009) (punctuation omitted); see OCGA § 9-11-52 (a).

        Washington, 299 Ga. App. at 336 (punctuation omitted).

       U. S. Const., amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.. ..”).

       Ga. Const., art. I, sec. I, pars. III-IV.

        Smith v. Mount Salem Missionary Baptist Church, 289 Ga. App. 578, 579 (1) (657 SE2d 642) (2008); see Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U. S. 440, 449 (89 SC 601, 21 LE2d 658) (1969) (“The First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes”);
        Anderson v. Dowd, 268 Ga. 146, 147 (1) (485 SE2d 764) (1997) (“The constitutional guarantee of freedom of religion encompasses the power of religious bodies to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” (citation and punctuation omitted)).

        Kim v. Lim, 254 Ga. App. 627, 632 (2) (563 SE2d 485) (2002) (punctuation omitted); see also United Baptist Church v. Holmes, 232 Ga. App. 253, 253-254 (500 SE2d 653) (1998) (“The courts of Georgia under the First Amendment of the Constitution of the United States and [the] Constitution of Georgia are prohibited from determining issues of expulsion of members, pastors, and the internal procedures of a religious entity . . . .” (citation and punctuation omitted)).

        Smith, 289 Ga. App. at 579 (1); see also Bolden v. Barton, 280 Ga. 702, 703-704 (632 SE2d 148) (2006) (same).

        Presbyterian Church in the U.S., 393 U. S. at 449.

        Gervin v. Reddick, 246 Ga. 56, 57 (2) (268 SE2d 657) (1980) (emphasis supplied); see also Howard v. Johnson, 264 Ga. App. 660, 662 (1) (592 SE2d 93) (2003) (same); cf. OCGA § 14-5-43 (“The majority of those who adhere to its organization and doctrines represent a church____”).

        Kim, 254 Ga. App. at 632 (2); see also Anderson, 268 Ga. at 147 (1).

        See Waverly Hall Baptist Church, Inc. v. Branham, 276 Ga. App. 818, 824 (1) (d), (2) (625 SE2d 23) (2005) (“Georgia courts clearly have jurisdiction over those disputes involving a nonprofit corporation’s board of directors as well as the disposition of church property by that hoard, as long as we respect the nonprofit corporation’s right to determine its own membership roster and bylaws.” (punctuation omitted)).

       During the bench trial, six of the thirty-four plaintiffs testified, including Pastor Allen.

       Defendants deny any such acknowledgment and argue that the court misread defendants’ motion for partial summary judgment.

        See Kim, 254 Ga. App. at 632 (2).

       Some of those plaintiffs also claimed to be members via Art. I, Sec. A (3).

       The Baptist Faith and Message, as adopted by the Southern Baptist Convention (and included in the appellate record), describes the central role that baptism plays in the life of affiliated churches:
      Christian baptism is the immersion of a believer in water in the name of the Father, the Son, and the Holy Spirit. It is an act of obedience symbolizing the believer’s faith in a crucified, buried, and risen Saviour, the believer’s death to sin, the burial of the old life, and the resurrection to walk in newness of life in Christ Jesus. It is a testimony to his faith in the final resurrection of the dead. Being a church ordinance, it is prerequisite to the privileges of church membership and to the Lord’s Supper.
      “The Baptist Faith andMessage,” p. 14 (rev. 1998) (emphasis supplied). The most recent version of this statement of faith was adopted by the Southern Baptist Convention in 2000, and includes the identical language noted above. See “The Baptist Faith and Message” (rev. 2000), available at http://www.sbc.net/bfm/bfm2000.asp#vii.

        See Waverly Hall Baptist Church, Inc., 276 Ga. App. at 824-25 (2) (noting that in construing church bylaws according to contract principles, courts must “give meaning to every term within the contract, rather than construe any term as meaningless”).

        See id. at 825 (2).

       We pause to express our serious reservations as to the general applicability of equitable estoppel in determining standing (or lack thereof) of those claiming membership in a church-property dispute. Suffice it to say, it is not the role of the government, or of this Court in particular, to inquire into or determine the extent to which a church has been faithful in adhering to its dictates of membership. See Kim, 254 Ga. App. at 632 (2) (holding that Georgia courts will not entertain controversies involving a church’s “faith, teaching, doctrine, and discipline of the church such as expulsion from membership, internal procedures, quorums, or determination of membership in the church”) (citation and punctuation omitted) (emphasis supplied).

        Cf. Howard, 264 Ga. App. at 663 (1) (affirming trial court’s attempt to first determine total membership of church in order to determine whether plaintiffs constituted a majority).

       For instance, while recognizing that our ruling here has created a difficult task for the trial court, we agree with the court’s assessment that the phrase “like faith and order” was ambiguous and that, therefore, it could not address the membership status of plaintiffs who claimed membership pursuant to Article I, Section A (2) or (3) of the bylaws. See Waverly Hall Baptist Church, Inc., 276 Ga. App. at 825 (2) (holding that the trial court was forbidden to engage in a subjective analysis of the meaning of the phrase “full and regular” in church bylaws when phrase was not defined in bylaws because doing so would require delving into internal church procedures).

        See Howard, 264 Ga. App. at 664 (2) (holding that trial court could properly order an election process to determine which faction represented the majority of the church).


author: Ray, Judge.

text:
    A12A2216.
    HINTON v. THE STATE.
    (740 SE2d 394)
   Ray, Judge.

Kenneth George Hinton, James Kennedy Copeny, Jr., and Jaryn Ware were tried together and each convicted of armed robbery, hijacking a motor vehicle, and two counts of possession of a firearm during the commission of a crime; other counts were merged into the aforementioned counts for sentencing purposes. Hinton appeals the denial of his motion for new trial, contending that the evidence adduced at trial was insufficient to sustain his convictions and that the trial court erred in denying his motion to suppress. For the reasons that follow, we affirm.

When reviewing on appeal whether the evidence was sufficient to sustain a conviction, we consider whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, and we view the evidence in the light most favorable to the verdict. We do not weigh evidence or witness credibility, and “[a]ny conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, we must uphold the jury’s verdict.”

Here, we adopt the following relevant portion of this Court’s statement of facts in our earlier decision involving Hinton’s co-defendants:

Viewed in the light most favorable to the verdict, the evidence in this case shows that the victim met Tinisha Henry when, while driving down a street in Riverdale, the victim saw her walking along the road, stopped to talk with her, and gave his telephone number to her. One evening, Henry called the victim and asked him to meet at a house after he finished work, ostensibly to have a drink. A few hours later, the victim drove to the place to which Henry had directed him, and when he arrived, he saw Henry standing in the street. After he parked and exited his car, the victim was approached by four men. The men were armed, their faces were concealed, and they informed the victim of their intent to rob him. At trial, the victim testified that one of these men was taller than the others, and the tall one wore a white shirt, while the others wore dark clothing. One of the men took cash and a cell phone from the victim, and Henry took the keys to his car. Henry then drove away in the victim’s car, a Monte Carlo, and the four men drove away in a Lincoln Town Car.
The victim promptly contacted law enforcement, and officers were instructed to be on the lookout for both the Monte Carlo and the Town Car. Officers soon located the Monte Carlo and apprehended Henry. Later, officers also located a Town Car and stopped it. Inside the Town Car, the officers found Copeny, Ware, Hinton, and a fourth man, Malcolm Arnold. The victim was taken to the scene of the stop, and he confirmed that the Town Car that officers had stopped was, in fact, the Town Car in which his assailants had driven away. The victim also viewed the occupants of the Town Car. He was unable to definitively identify any of the occupants as one of his assailants, inasmuch as they had covered their faces during the robbery, but the victim told officers that the height, weight, and attire of the occupants of the Town Car was consistent with that of his assailants. An officer testified at trial that, when the Town Car was stopped, Hinton was wearing a white shirt and was taller than the other occupants, including Copeny and Ware.

Captain Richard Gandee of the Clayton County Police Department took the victim to the location where other officers had stopped the Town Car. Gandee testified that the victim previously had told him that his assailants were black, and when Gandee and the victim arrived at the Town Car, the victim stated that “the tall black male in the white T-shirt is the one that [the victim] recognized the most. And he was actually at the scene with the Lincoln Town Car.” At trial, when asked if he could identify any of the men “in particular,” the victim responded, “The tall guy with the white T-shirt.” The victim further testified that he had been able to observe Hinton during the crimes, as he stood in front of the driver’s-side headlight of the Monte Carlo during the robbery. The victim indicated that all the occupants of the car matched his description of the robbers. An officer who interviewed all four defendants testified that three of the men were between five feet seven and five feet nine inches tall, but that Hinton was about six feet two inches tall.

Prior to seeing the occupants or contents of the Town Car, the victim also described the silver and black handguns that had been used in the crime. The Lincoln Town Car was uninsured, so police impounded the vehicle and inventoried its contents. During the inventory, police found a loaded Bersa Thunder 9 millimeter handgun wrapped in a black, full-face mask, and when officers patted down the car’s occupants, they found a loaded Bryco Arms 9 millimeter handgun on Arnold. One gun was black, the other was silver. The officers also found cell phones, including one belonging to the victim; $71 in cash, some jewelry, and clothing including a black hat, black shorts, a black T-shirt, two black hooded sweatshirts, and a black glove.

The four occupants of the Town Car were taken into police custody. While in custody, Hinton indicated to police that he had been in the Town Car on the night at issue and that the car belonged to him.

1. Hinton first contends that the trial court erred because the evidence was insufficient to convict him. Specifically, he argues that the State, in using only circumstantial evidence to identify him as one of the perpetrators, failed to meet its burden of excluding every other reasonable hypothesis except his guilt. We disagree.

To obtain a conviction on circumstantial evidence, the State must establish not only that the evidence is consistent with guilt, but that the facts exclude every other reasonable hypothesis. In order to support the verdict, the circumstantial evidence need exclude only reasonable hypotheses, not exclude every inference or hypothesis except that of the defendant’s guilt. Whether circumstances are sufficient in this case to exclude every reasonable hypothesis except that of the defendant’s guilt is a question for the jury.

Although the victim did not testify that he was absolutely certain of the robber’s identity because the robber’s face was partially covered, it is well settled that “the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.”

Here, the evidence shows that Hinton was arrested about an hour and a half after the crimes occurred, in the Lincoln Town Car he admitted that he owned and which the victim had described as being driven by his assailants. The cell phone that the victim had reported stolen was found in Hinton’s car. Guns matching the victim’s description of the weapons used were found in Hinton’s car and on the person of one of Hinton’s companions.

We have held that stolen items found in a vehicle create a rebuttable presumption that the owner of the vehicle is in possession of those items. This presumption does not apply when there is evidence that the owner was not in possession of the vehicle for some period prior to the discovery of stolen items, or if the evidence shows that others had equal access to the vehicle. Here, there is no evidence that others were in possession of the vehicle without Hinton, but there is evidence that the other assailants had equal access to the vehicle. Because there also was evidence other than Hinton’s ownership of the automobile connecting him with the crimes, however, including the fact that the victim’s description of one of the perpetrators matched Hinton’s physical characteristics, this was sufficient to sustain the presumption. “Where there is evidence other than ‘equal access’ connecting an accused to contraband, it is for the jury to determine guilt or innocence.”

Contrary to Hinton’s assertion on appeal, the combined evidence set forth above was sufficient to authorize a rational jury to find him guilty beyond a reasonable doubt of the charged offenses and to exclude every other hypothesis except for his guilt. Further, the evidence was sufficient to prove beyond a reasonable doubt that Hinton was a party to the crimes charged and was sufficient to authorize a rational jury to exclude every reasonable hypothesis other than his guilt.

A person who does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it. Moreover, whether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed. ... If the defendant had knowledge of the intended crime and shared the criminal intent of the principal actor, he is an aider and abettor.

Here, a jury could readily conclude that Hinton had knowledge of the crimes and shared in the criminal intent of the perpetrators given that he was found in his car with the other assailants, with the guns the victim described, and with the victim’s stolen cell phone and other items connected to the crimes. Further, the victim testified that a man matching Hinton’s description stood in the headlight and watched while the crimes took place. We find no error.

2. Hinton next argues that the trial court erred in denying his motion to suppress because the State used only hearsay evidence to establish the police officer’s reasons for believing he could lawfully stop Hinton’s car. Specifically, he argues that “the only evidence regarding the reason for the stop was another officer’s recitation of a hearsay statement that had been made by the stopping officer.” This contention lacks merit.

Although Hinton argues that the stopping officer’s conduct was explained by inadmissible hearsay testimony from another officer, the record does not support this. A careful review of the suppression hearing transcript shows that although the officer who stopped Hinton’s vehicle did not testify, the officer who did testify, Sergeant Stefan Schindler, never testified as to what the stopping officer told him. At the hearing, Schindler testified that he arrived on the scene after Hinton’s car was stopped. When asked why the Lincoln Town car was stopped, Schindler, without attributing any of his knowledge to statements by the stopping officer, testified that Hinton’s vehicle had been stopped because it had an altered drive-out tag. He further testified that officers on patrol that night had been told via radio dispatches to be on the lookout for an older-model, cream-colored Lincoln Town Car with altered drive-out tags, in which four black males were riding. Thus, Hinton’s hearsay argument, as crafted, is inapt.

On appeal of the denial of a motion to suppress, we construe the facts in favor of the trial court’s findings, uphold those findings unless clearly erroneous, and review de novo the trial'court’s application of law to the facts. We also consider all relevant evidence of record, including evidence introduced at motion hearings and at trial. At a motion to suppress hearing, the State has the burden of proving the stop was lawful.

Properly viewed, the evidence presented at the motion to suppress hearing, as outlined above, shows that the State met its burden as to the justification for the initial stop. Although “stopping a car with a drive-out tag solely to ascertain whether the driver was complying with our vehicle registration laws is not authorized,” we have held that, as in the instant case, an officer has satisfied the requirement of reasonable, articulable suspicion needed to justify a brief investigative stop where the vehicle has a drive-out tag that has been altered and is invalid. Given the additional information in the radio dispatches about the make, model, and color of the vehicle, and the description of its four occupants, the police also had probable cause, which can rest on the collective knowledge of the police when there is, as here, some degree of communication between them, instead of on the knowledge of the arresting officer alone. Here, the stop was lawful because it was based on reliable information from 911 and police radio dispatches, and was shortly corroborated by officers’ sighting of a car and its occupants matching the description provided, giving police reasonably trustworthy information sufficient to warrant a prudent person’s belief that a suspect had committed an offense. Finally, at the suppression hearing, the trial court properly considered the totality of the circumstances to determine whether officers had probable cause to believe that Hinton had committed an offense. We discern no error.

Judgment affirmed.

Branch, J., concurs. Miller, P. J., concurs in judgment only.

Decided March 25, 2013

Reconsideration denied April ll, 2013.

Gerard B. Kleinrock, for appellant.

Tracy Graham-Lawson, District Attorney, Adeline N. Alexander, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-44.1.

       OCGA § 16-11-106.

       The appeals of Copeny and Ware already have been decided in Copeny v. State, 316 Ga. App. 347 (729 SE2d 487) (2012).

       Id. at 347 (1).

       (Punctuation and footnote omitted.) Campbell v. State, 314 Ga. App. 299, 300 (724 SE2d 24) (2012).

         Copeny, supra at 347-348 (1).

       (Punctuation and footnotes omitted; emphasis supplied.) Huff v. State, 281 Ga. App. 573, 575 (636 SE2d 738) (2006). Accord Dailey v. State, 271 Ga. App. 492, 494 (1) (610 SE2d 126) (2005) (circumstantial evidence sufficient to exclude other reasonable possibilities, even where victim’s identification of defendant was inconclusive, given other inculpatory evidence).

       (Citation, punctuation and footnote omitted.) Frazier v. State, 305 Ga. App. 274, 275 (1) (699 SE2d 747) (2010).

        Elrod v. State, 128 Ga. App. 250, 251 (1) (196 SE2d 360) (1973).

       Id.

       Id. at 251 (3).

       (Citations and punctuation omitted.) Fears v. State, 169 Ga. App. 172, 174 (1) (312 SE2d 174) (1983).

        Huff, supra.

       (Citations, punctuation and emphasis omitted.) Copeny, supra at 349 (1) (a).

       See Williams v. State, 236 Ga. App. 790, 792 (513 SE2d 757) (1999) (evidence sufficient to show defendant was party to hijacking where, among other things, he made no effort to distance himself from his cohorts as vehicle was being stolen and offered no help to the victim); Lewis v. State, 199 Ga. App. 97, 98 (1) (403 SE2d 814) (1991) (evidence sufficient to find defendant guilty of armed robbery where he arrived at scene with co-defendant, and did not deter co-defendant or assist victim when co-defendant choked and robbed victim).

       Hinton did not raise any hearsay objections in this portion of the hearing on the motion to suppress.

        Berry v. State, 318 Ga. App. 806, 807 (1) (734 SE2d 768) (2012).

       Id. at 807 (1), n. 2.

        State v. Hammond, 313 Ga. App. 882, 883-884 (723 SE2d 89) (2012).

       (Punctuation and footnote omitted; emphasis supplied.) Green v. State, 282 Ga. App. 5, 7 (1) (637 SE2d 498) (2006).

       Id. at 6-7 (1).

        Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996).

        Bell v. State, 291 Ga. App. 169, 172 (3) (661 SE2d 207) (2008). Hinton, citing Vansant v. State, 264 Ga. 319, 321 (2) (443 SE2d 474) (1994), argues that the radio dispatch description of the Lincoln was insufficient to support the requisite particularized suspicion necessary to justify a vehicle stop. However, this case is distinguishable in that the description in Vansant was only of the color and make of the vehicle at issue, and unlike the instant case, did not include a description of the occupants or the vehicle’s tag.

        Bell, supra at 171 (3).