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Docket Number

No. A08A0802.

Attorney(S)

Fred I. Graham, for appellant. Kelly R. Burke, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

Judges

BLACKBURN, Presiding Judge.

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Smart Summary

Evans v. The State, No. A08A0802 — Court of Appeals of Georgia (Decided April 3, 2008)

Factual and Procedural Background

Terry Lamont Evans was tried by a jury in Houston Superior Court and convicted of obstructing an officer (a felony) in violation of OCGA § 16-10-24(b). The conviction arose from events while Evans was confined in a probation detention center: a female correctional officer ordered Evans to arise and perform certain work; when he refused she requested assistance from two male officers to handcuff him for transport to an isolation cell. Evans announced he would not be handcuffed, and when one male officer attempted to handcuff him from behind, Evans swung his elbow and struck that officer under the eye, causing a deep, profusely bleeding gash that required eight stitches. Three eyewitnesses testified to this sequence.

At sentencing the State sought recidivist punishment under OCGA § 17-10-7 based on four prior felony convictions. Evans objected, arguing (1) the evidence was insufficient to support conviction and (2) the State failed to provide proper pretrial notice of the prior convictions it later relied upon in aggravation at sentencing and failed to introduce certified copies at sentencing. The trial court found Evans to be a recidivist and imposed the maximum sentence of five years. Evans appealed.

Legal Issues Presented

Whether the evidence presented at trial was sufficient, when viewed in the light most favorable to the jury's verdict, for a rational trier of fact to find Evans guilty of obstructing an officer beyond a reasonable doubt.
Whether the State provided sufficient notice (and sufficient proof) of Evans's prior felony convictions for use in aggravation at sentencing under former OCGA § 17-10-2(a) and OCGA § 17-10-7.

Arguments of the Parties

Appellant's Arguments

Evans contended the evidence was insufficient to sustain the felony obstruction conviction.
Evans argued the trial court erred by considering four prior felony convictions at sentencing because (i) the State did not introduce certified copies of the convictions at sentencing and (ii) he did not receive proper pretrial notice that the State intended to use those prior convictions to enhance sentencing.

Appellee's (State's) Position

The State presented eyewitness testimony that Evans struck a correctional officer while the officer was attempting to handcuff him, which the State maintained was sufficient to prove willful resistance and violence against an officer in the lawful discharge of duties under OCGA § 16-10-24(b).
The State asserted it had properly proven the prior convictions at sentencing by presenting certified convictions (the transcript reflects the State announced it presented "his certified convictions" and the certified copies were attached as exhibits to the transcript).
The State contended it provided adequate notice of its intent to use the prior convictions: it served a written "Notice of Intent to Present Matters in Aggravation of Sentencing" that identified prior convictions listed in an attached GCIC report, and the State also discussed prior convictions during plea negotiations; defense counsel had reviewed the GCIC and was aware of the convictions (having represented Evans in three of the four prior matters).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Short v. State, 234 Ga. App. 633 (1998)	Describes the standard of review for challenges to the sufficiency of the evidence: appellate courts view evidence in the light most favorable to the verdict and the defendant no longer enjoys presumption of innocence.	The court invoked Short to frame the standard by which it reviewed Evans's sufficiency challenge.
Jackson v. Virginia, 443 U.S. 307 (1979)	Establishes that appellate courts must determine whether the evidence is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt (without weighing credibility).	The court relied on Jackson to emphasize that it would not weigh evidence or determine credibility but only assess sufficiency under the Jackson standard.
Cabell v. State, 250 Ga. App. 530 (2001)	In evaluating sufficiency of the State's notice of intent to use prior convictions, the court places substance over form; notice is sufficient where defense counsel was aware of the convictions and that the State intended to use them.	The court applied Cabell to conclude that the substance of the notice and counsel's awareness satisfied the statutory notice requirement.
Mullinax v. State, 242 Ga. App. 561 (2000)	Oral notification may suffice as adequate notice so long as the notice is clear.	The court cited Mullinax to support that non-formal (e.g., oral) notification can constitute adequate notice if clear and unmistakable.
Ogle v. State, 256 Ga. App. 26 (2002)	Requires an unmistakable advance warning that prior convictions will be used at sentencing so defendant has time to rebut or explain; plea negotiations that identify prior convictions may suffice as notice.	The court applied Ogle to hold that the combination of written notice referencing a GCIC and plea-negotiation discussions provided the required unmistakable advance warning.
Rielli v. State, 174 Ga. App. 220 (1985)	The furnishing of defense counsel with a list of convictions upon which the State expects to rely is sufficient notice.	The court relied on Rielli to support that providing the GCIC list to defense counsel constituted sufficient notice.
Gordillo v. State, 255 Ga. App. 73 (2002)	Announcing intent to use convictions listed on an attached GCIC as aggravation evidence can suffice as proper notice.	The court cited Gordillo as authority that a GCIC-attached list in a notice is an adequate method of informing a defendant of the convictions to be used at sentencing.
Young v. State, 245 Ga. App. 684 (2000)	Supports the proposition that listing convictions for defense counsel furnishes sufficient notice for sentencing aggravation.	The court cited Young alongside Gordillo to reinforce that the GCIC-attached notice was sufficient.
Sanders v. State, 230 Ga. App. 176 (1998)	Holds that a GCIC report can be insufficient as notice where it fails to list convictions that the State later uses at sentencing.	The court contrasted Sanders to note that a GCIC-based notice is sufficient only if it accurately identifies the convictions the State will use; Sanders was used as a cautionary comparison where the GCIC was incomplete.
Lindsey v. State, 282 Ga. 447 (2007)	Addressed applicability of statutory amendments (Criminal Justice Act of 2005) with regard to trial dates; cited for the proposition that the Act applies to trials commencing on or after July 1, 2005.	The court cited Lindsey to justify applying the pre-July 2005 version of the notice statute because Evans's trial occurred in June 2005.
Merritt v. State, 288 Ga. App. 89 (2007)	Also cited in the context of which statutory version applies based on trial commencement date relative to the Criminal Justice Act effective date.	The court cited Merritt to support applying the pre-amendment statute to Evans's June 2005 trial.

Court's Reasoning and Analysis

The court conducted a two-part analysis corresponding to Evans's two enumerated errors.

1) Sufficiency of the evidence: The court first articulated the applicable standards (Short and Jackson) that require viewing the evidence in the light most favorable to the jury verdict and assessing whether a rational trier of fact could find guilt beyond a reasonable doubt without reassessing credibility. Applying that standard, the court summarized the eyewitness testimony: Evans refused orders, announced he would not be handcuffed, and, when a male officer attempted to handcuff him from behind, swung his elbow and struck the officer beneath the eye, creating a deep, bleeding gash requiring eight stitches. The court concluded that this direct eyewitness testimony from three witnesses established that Evans knowingly and willfully resisted a correctional officer in the lawful discharge of his duties by doing violence to the officer's person, satisfying OCGA § 16-10-24(b) and sufficient to sustain the felony obstruction conviction.

2) Notice and proof of prior convictions at sentencing: The court addressed two sub-issues: the State's manner of proving the prior convictions and the sufficiency of the State's notice.

- Manner of proof: The sentencing transcript reflected the State announced it presented "his certified convictions," and certified copies were attached to the transcript as exhibits. The court found no error in the manner of proof.

- Sufficiency of notice: The court examined the written "Notice of Intent to Present Matters in Aggravation of Sentencing" served weeks before trial, which identified the prior convictions as those listed on an attached GCIC report. The State cited the relevant statutory subsections and discussed the priors during plea negotiations. The court noted defense counsel had reviewed the GCIC and had represented Evans in three of the four prior cases, and counsel was therefore aware of the convictions. Relying on precedents (Cabell, Mullinax, Ogle, Rielli, Gordillo, Young and distinguishing Sanders), the court applied the principle that substance prevails over form and that an unmistakable advance warning to the defendant is the operative requirement. Given the written notice referencing the GCIC, the plea-negotiation discussions, and counsel's awareness, the court determined Evans received sufficient notice under the pre-July 2005 version of the statute (as supported by Lindsey and Merritt given the June 2005 trial date). Accordingly, the court concluded the trial court did not err in considering the prior convictions when imposing recidivist punishment.

Holding and Implications

Holding: The Court of Appeals affirmed the judgment. In the court's words: Judgment affirmed.

Implications:

Direct effect: Evans's felony conviction for obstructing an officer and the resulting recidivist sentence (maximum five years) were upheld; the trial court did not err in finding the evidence sufficient nor in considering the prior convictions at sentencing.
Notice principle reaffirmed: The opinion applies existing Georgia case law that places substance over form in assessing notice of intent to use prior convictions at sentencing — written notice that references convictions listed on an attached GCIC report, coupled with plea-negotiation discussion and defense counsel's familiarity with the priors, can satisfy former OCGA § 17-10-2(a) (as applied here because the trial occurred in June 2005). The court distinguished situations (e.g., Sanders) where a GCIC list was incomplete and thus insufficient.
Precedential effect: The decision applies and synthesizes prior authority on sufficiency review and notice for sentencing aggravation; it does not purport to announce new law beyond applying those authorities to the facts presented.

Judgment affirmed. Miller and Ellington, JJ., concur.

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EVANS v. THE STATE.

BLACKBURN, Presiding Judge.

Following a jury trial, Terry Lamont Evans appeals his conviction for obstructing an officer (felony), arguing that the evidence was insufficient and that the State did not provide proper pretrial notice of the convictions that the State introduced in aggravation at his sentencing. We hold that direct eyewitness testimony that Evans struck a correctional officer while that officer was attempting to handcuff him sufficed to sustain the conviction, and that the State's written notice that during sentencing, it would rely on the convictions listed in a Georgia Crime Information Center (GCIC) report attached to the notice, sufficiently notified Evans. Accordingly, we affirm.

OCGA § 16-10-24 (b).

1. When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia.

Short v. State, 234 Ga. App. 633, 634 (1) ( 507 SE2d 514) (1998).

Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that while confined to a probation detention center, Evans refused to follow the instructions of a female correctional officer to arise and perform certain work. She requested assistance from two male correctional officers to handcuff Evans so that Evans could be securely transported to an isolation cell. Evans announced that he would not be handcuffed, and when one male officer attempted to handcuff Evans from behind, Evans swung his elbow at the officer and struck him under the eye, causing a deep gash that bled profusely and required eight stitches. This evidence from three eyewitnesses sufficed to show that Evans knowingly and wilfully resisted a correctional officer in the lawful discharge of his official duties by doing violence to that officer's person. See OCGA § 16-10-24 (b).

2. Evans's remaining enumeration of error is that the trial court erred in considering (over his objection) his four prior felony convictions when it sentenced him as a recidivist under OCGA § 17-10-7. Specifically, Evans claims that (i) the State failed to introduce certified copies of those convictions at sentencing and (ii) he failed to receive proper notice of the State's intent to introduce these convictions at sentencing.

With regard to the State's manner of proving these convictions, the sentencing transcript reflects that the State announced, "We present to the Court . . . his certified convictions," and that certified copies of those convictions were attached to the transcript as exhibits. We discern no error in the manner of proof.

With regard to the sufficiency of the State's notice of its intent to introduce these convictions, the record reflects that several weeks before trial, the State served Evans's counsel with a "Notice of Intent to Present Matters in Aggravation of Sentencing," in which the State announced that at sentencing, it would introduce Evans's prior convictions that were listed in an attached GCIC report. The State cited to both subsection (a) and subsection (c) of OCGA § 17-10-7 as a basis for its seeking a maximum sentence. During plea negotiations with Evans's counsel, the State expressly discussed Evans's prior history and convictions as requiring a longer sentence; indeed, Evans's counsel was keenly aware of these four prior convictions, as she had represented him in three of them and as she had reviewed the GCIC report referenced in the notice. Based on the four prior felony convictions of Evans, the court found Evans to be a recidivist and accordingly sentenced him to the maximum of five years.

Evans points to his trial counsel's testimony at the motion for new trial hearing that based on her recollection, the GCIC report was not attached to the State's notice. However, this same counsel had stated at trial that the report was indeed attached. Moreover, she conceded at the motion for new trial hearing that in any case, she had reviewed the GCIC report in the State's file before trial.

We discern no error. The statute requiring notice (former OCGA § 17-10-2 (a)) mandated that the State make its intent to use the convictions as aggravation of punishment at sentencing "known to the defendant prior to the defendant's trial." "In evaluating the sufficiency of the [S]tate's notice, this Court places substance over form." Cabell v. State. Thus, oral notification suffices so long as the notice is clear. Mullinax v. State. "The important requirement is that the defendant be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record." (Punctuation omitted.) Ogle v. State. See Cabell, supra, 250 Ga. App. at 531 (notice is sufficient where defense counsel was aware of the defendant's prior convictions and was aware that the State intended to use those convictions in aggravation of punishment); Rielli v. State ("the furnishing of defense counsel with a list of convictions upon which the State expects to rely is sufficient"). Accordingly, even plea negotiations, which identify the prior convictions as a basis for the State's seeking enhanced punishment, suffice as notice. Ogle, supra, 256 Ga. App. at 28 (3); Cabell, supra, 250 Ga. App. at 531.

The notice requirement has been modified and is now found in OCGA § 17-16-4 (a) (5) based on amendments effectuated by the Criminal Justice Act of 2005. See Ga. L. 2005, p. 20, § 1 et seq. (effective July 1, 2005). Section 17 of the Act provides that it "shall apply to all trials which commence on or after July 1, 2005." As Evans was tried in June 2005, we apply the pre-July 2005 version of OCGA § 17-10-2 (a). See Lindsey v. State, 282 Ga. 447, 449, n. 4 ( 651 SE2d 66) (2007); Merritt v. State, 288 Ga. App. 89, 99, n. 41 ( 653 SE2d 368) (2007).

Cabell v. State, 250 Ga. App. 530, 531 ( 551 SE2d 386) (2001).

Mullinax v. State, 242 Ga. App. 561, 563 (2) ( 530 SE2d 255) (2000).

Ogle v. State, 256 Ga. App. 26, 28 (3) ( 567 SE2d 700) (2002).

Rielli v. State, 174 Ga. App. 220, 223 (5) ( 330 SE2d 104) (1985).

Here, the State served a written notice of its intent to seek recidivist punishment and identified Evans's prior convictions (as listed in the attached GCIC) as those it intended to introduce in aggravation of punishment under OCGA § 17-10-7. Announcing that the State intends to use the convictions listed on an attached GCIC as aggravation evidence in sentencing has sufficed as proper notice under former OCGA § 17-10-2 (a). See Gordillo v. State; Young v. State. Compare Sanders v. State (providing GCIC report insufficient where it did not list two of the convictions used by the State in sentencing). During plea negotiations, the State again referenced Evans's prior criminal history and reiterated it would seek recidivist punishment. Before trial, Evans's counsel reviewed the GCIC and was keenly familiar with the prior convictions in that she represented him in three of those four convictions. As this evidence shows that Evans received unmistakable advance warning that the State intended to use identified prior convictions in aggravation of sentencing, we hold that the trial court did not err in finding that Evans received sufficient notice under former OCGA § 17-10-2 (a) and in considering the convictions at sentencing. Judgment affirmed. Miller and Ellington, JJ., concur.

Gordillo v. State, 255 Ga. App. 73, 77-78 (3) (c) ( 564 SE2d 486) (2002).

Young v. State, 245 Ga. App. 684, 686-687 (3) ( 538 SE2d 760) (2000).

Sanders v. State, 230 Ga. App. 176, 178 (4) ( 495 SE2d 653) (1998).