FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 20, 2015
In the Court of Appeals of Georgia
A15A0795. MORAN v. STATE OF GEORGIA
BOGGS, Judge.
Donald Moran appeals from his convictions of aggravated battery, aggravated
assault, burglary, possession of a knife during the commission of a felony, and
stalking. He asserts that the State presented insufficient evidence to support his
convictions and that he received ineffective assistance of counsel. For the reasons
explained below, we reverse his stalking conviction and affirm his remaining
convictions.
When reviewing the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in light most
favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. This
familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. Once a
defendant has been found guilty of the crime charged, the fact finder’s
role as weigher of the evidence is preserved through a legal conclusion
that upon judicial review all of the evidence is to be considered in the
light most favorable to the prosecution.
(Citations and footnotes omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979).
So viewed, the evidence shows that in July 2011, the male victim and Moran
developed “somewhat of a friendship” based upon their mutual love of custom
motorcycles. About a month later, Moran introduced his girlfriend, Kimberly
Thomas, to the victim. After the couple later began spending a lot of time at the
victim’s home, which he shared with four other people, the victim and Thomas also
developed a friendship. After witnessing arguments between Moran and Thomas over
time, the victim had “a falling out” with Moran.
Thomas testified that Moran had “trust issues” that made it difficult for her to
spend time with friends while he was her boyfriend. As a result of Moran’s frequent
accusations of cheating, Thomas would lie to him when she spent time with friends.
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On November 18, 2012, Thomas told Moran after an argument that she would
be having dinner with her father that evening. Earlier, Moran had “talked about going
out that night.” Thomas did not have plans for dinner with her father, however, and
instead called the victim to give her a ride to a restaurant where they consumed
alcohol. While Thomas was at the restaurant with the victim, she and Moran
exchanged numerous text messages.
Through their text message exchanges, Moran informed Thomas that he knew
she was not at the home she shared with her father by stating, “I will sit in your
driveway till you come home. I’d like to meet your friends anyway.” He also stated,
“I think I’m going to wait till you come home and see who’s driving.” Moran further
wrote, “if your telling the truth it shouldn’t be long of a wait now since you been
absent for a couple of hours,” and “So are you gonna tell me the truth or not? Cause
I can sit here n see if you dads gonna bring you home or I can just go out and swing
by later to see if his car is there.” In a period of approximately four hours, Moran sent
51 texts to which Thomas replied only 9 times. In her next-to-the-last text at 9:58
p.m., Thomas told Moran, “I don’t want to talk to u.”
Around 1:00 a. m., the victim drove Thomas back to her father’s home. The
victim went inside and followed Thomas to her room in the basement. He testified
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that he fell asleep fully clothed on the corner of her bed while she was in the
bathroom. He “awoke to a loud thud and yelling,” and saw Thomas on the ground and
Moran standing in front of him. By the time the victim stood up, Moran turned on
him. The victim threw his guard up as Moran approached because he believed Moran
was going to attack him. Moran “came to [him] person-to-person, body-to-body.”
They were locked together “chest-to-chest,” when the victim felt his back get really
warm and soaking wet. While the victim did not feel the first two or three stabs, he
“could feel him, kind of, digging around in my back at one point.” He let go of Moran
when he started getting dizzy, and the two fell apart. The victim denied having Moran
in a choke or sleeper hold before he was stabbed.
Moran and Thomas then began arguing about Moran’s behavior, and the victim
placed himself in between Moran and Thomas. During this time, Moran stabbed the
victim in the knee and punched him in the face several times. Moran eventually
calmed down, and the victim left the room to seek medical attention. His injuries
included six puncture wounds in his upper back that required stitches, as well as knee
and lip wounds that also required stitches.
Thomas testified that she was “black-out drunk” that evening, did not recall
seeing Moran or the victim in her home, and did not recall most of what took place.
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She could only remember “being in a lot of pain and . . . yelling at . . . [Moran and the
victim]” and “being in a cop car.” She did recall that Moran sent her text messages
that evening and responding to some of them. However, she was never asked whether
Moran’s repeated and numerous text messages made her afraid for her safety.
She testified that at the time of the incident, her relationship with Moran “was
really rocky” and they “were arguing almost every day.” Moran was no longer
allowed to come to her father’s house based upon arguments her father witnessed. On
one occasion, they were arguing and “ended up fighting a little bit and [her] dad came
downstairs and chased [Moran] out of the house.” The victim testified that she was
“[a] little bit” afraid of Moran “when that argument was going on.” After her father
forbade Moran from coming to his home, Thomas would “sometimes, yes, sometimes,
no” allow Moran to come over when her father was not at home.
Thomas’s father testified that he forbade Moran from coming to his home after
he saw a “change in his behavior.” Specifically, “[a] lot more arguing, a lot more in-
your-face-type arguing, up close and personal . . . Situations prior with the law in
which situations happened between the two of them that obviously that wasn’t good.”
1. Moran contends insufficient evidence supports his convictions.
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(a) Moran claims the State failed to present sufficient evidence to support his
stalking conviction because Thomas never testified that she was in fear for her safety
or intimidated by his behavior, there was no evidence that his contact with her was
without her consent, and he had a legitimate purpose for communicating with her
based upon their “anticipated plans” and “the nature of their relationship.”
The indictment charged that Moran “follow[ed] and place[d] under surveillance
and contact[ed] . . . Thomas at a place, to wit: [her father’s address where she
resided], without the consent of . . . Thomas, for the purpose of harassing and
intimidating . . . Thomas.” “A person commits the offense of stalking when he or she
follows, places under surveillance, or contacts another person at or about a place or
places1 without the consent of the other person for the purpose of harassing and
intimidating2 the other person.” OCGA § 16-5-90 (a) (1). “A defendant need not
engage in unequivocally hostile conduct or make explicit threats in order to be
1
“Place or places” is defined as “any public or private property occupied by the
victim other than the residence of the defendant.” OCGA § 16-5-90 (a) (1).
2
“Harassing and intimidating” is defined as “a knowing and willful course of
conduct directed at a specific person which causes emotional distress by placing such
person in reasonable fear for such person’s safety or the safety of a member of his or
her immediate family, by establishing a pattern of harassing and intimidating
behavior, and which serves no legitimate purpose.” OCGA § 16-5-90 (a) (1).
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convicted of stalking. Even behavior that is not overtly threatening can provide the
requisite degree of intimidation and harassment if is it ongoing, repetitious, and
engaged in despite the communicated wishes of the victim.” Placanica v. State, 303
Ga. App. 302, 304 (693 SE2d 571) (2010).
After carefully reviewing the evidence, we agree that the State failed to present
sufficient evidence that Thomas was placed in reasonable fear for her safety, an
essential element of stalking. See Crapps v. State, 329 Ga. App. 820, 823-824 (1)
(766 SE2d 178) (2014). As in In the Interest of C. C., 280 Ga. App. 590, 591-592 (1)
(634 SE2d 532) (2006), there was no evidence that Thomas was afraid or had any
emotional distress. See also Wright v. State, 292 Ga. App. 673, 676 (665 SE2d 374)
(2008) (insufficient evidence to support aggravated stalking conviction because no
evidence that victim in reasonable fear for her safety during multiple phone
conversations with defendant). While there was evidence that Thomas was “a little
bit” afraid of Moran during a previous argument, there was no evidence showing that
she was afraid for her safety from the charged conduct. We therefore reverse his
conviction for stalking.
(b) Moran asserts generally that the State failed to introduce sufficient evidence
of intent with regard to his aggravated assault, aggravated battery, burglary, and
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possession of a knife during the commission of a felony. We disagree. The record
contains ample evidence of intent, and “the intent to commit a felony necessary for
the burglary conviction need not be formed at the precise moment of entry, but can
be formed while the perpetrator is remaining on the premises. [Cit.]” Waters v. State,
294 Ga. App. 442, 443 (1) (669 SE2d 450) (2008).
2. Moran asserts that trial counsel was ineffective in failing to request a pre-
trial hearing to determine whether he was immune from prosecution on the ground
of self-defense. In ruling on a claim of ineffective assistance,
[u]nder the two-part test established in Strickland v. Washington, 466
U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [Moran] must prove
both that his trial counsel’s performance was deficient and that there is
a reasonable probability that the trial result would have been different
if not for the deficient performance. If an appellant fails to meet his
burden of proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong.
(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3)
(722 SE2d 774) (2012).
As a general rule, reasonable trial tactics and strategies do not amount
to ineffective assistance of counsel. The decisions on which witnesses
to call and all other strategies and tactical decisions are the exclusive
province of the lawyer after consultation with his or her client. Whether
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an attorney’s trial tactics were reasonable is a question of law, not fact.
When assessing the reasonableness of counsel’s actions, a court must
evaluate counsel’s performance from his or her perspective at the time
of trial. This Court reviews a trial court’s ruling on an ineffective
assistance claim on appeal by accepting the trial court’s factual findings
and credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts. [Cits.]
Hughley v. State, 330 Ga. App 786, 791 (4) (769 SE2d 537) (2015). And
we are not limited in our assessment of the objective reasonableness of
lawyer performance to the subjective reasons offered by trial counsel for
his conduct. If a reasonable lawyer might have done what the actual
lawyer did — whether for the same reasons given by the actual lawyer
or different reasons entirely — the actual lawyer cannot be said to have
performed in an objectively unreasonable way.[Cit.]
Id. at 791-792 (4).
Here, trial counsel testified that he did not request an immunity hearing because
he did not want to subject Moran to cross-examination before trial and “there were
some questions [he] wanted to ask [the victim] . . . for the first time in front of a jury.”
Additionally, he did not believe a motion for immunity based upon self-defense
would have been successful. As counsel did not employ an objectively unreasonable
trial strategy, we affirm the trial court’s denial of Moran’s ineffective assistance of
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counsel claim. See Boddie v. State, 327 Ga. App. 667, 670 (1) (760 SE2d 668) (2014)
(no ineffective assistance where trial counsel did not make unreasonable strategic
decision against filing a pre-trial motion).
Judgment affirmed in part and reversed in part. Doyle, C. J. and Phipps, P. J.,
concur.
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