State v. Graves
322 Ga. App. 798
Ga. Ct. App.2013Background
- Graves was charged with two counts under OCGA § 16-11-36 (loitering/prowling) arising from driving slowly in a residential area while masturbating under his pants.
- At a bench trial Graves was convicted on Count 1 (masturbating while driving in a residential area) and acquitted on Count 2 (masturbating in the presence of another while driving).
- The sole eyewitness, a female jogger, testified she saw his hand moving in his pants, felt alarmed and feared for neighborhood safety, and later reported the incident and the tag number. A deputy later interviewed Graves; he admitted masturbating in his car but denied doing so at the jogger.
- After conviction Graves filed an amended motion for new trial raising three grounds: (1) the conduct did not rise to loitering/prowling (a claim that, if successful, would arrest judgment); (2) the statute is unconstitutionally vague; and (3) the police failed to comply with OCGA § 16-11-36(b) (opportunity to dispel alarm).
- The trial court denied the vagueness and subsection (b) claims but granted the amended motion insofar as it held the State failed to show Graves’s conduct met the loitering/prowling statute, effectively arresting the judgment and granting a new trial.
- The State appealed the trial court’s order granting the new trial; the Court of Appeals vacated the portion of the order that granted relief equivalent to an arrest of judgment because that claim could not be raised by motion for new trial and remanded with directions to reinstate the conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Graves) | Held |
|---|---|---|---|
| Whether the trial court could grant a new trial by resolving a claim that the accusation was fatally defective (i.e., arrest the judgment) | Trial court’s order was valid; conviction should be retried if statute not proved | Accusation defective: admitting the alleged act does not necessarily constitute loitering/prowling; relief sought via new trial motion | Trial court lacked authority to decide an arrest-of-judgment claim via a motion for new trial; that portion of the order was void and vacated |
| Whether OCGA § 16-11-36 is unconstitutionally vague as applied | N/A on appeal (State preserved) | Argues vagueness of statute as applied to conduct | Trial court denied vagueness claim; Graves did not appeal that denial (not reached on appeal) |
| Whether police complied with § 16-11-36(b) (opportunity to dispel alarm) | N/A on appeal | Claims officer failed to afford opportunity to explain, per statute | Trial court denied relief on this ground; Graves did not appeal that denial (not reached on appeal) |
| Whether the State may appeal the trial court’s order granting the new trial | State appeals as of right from void/illegal judgment | N/A | State’s appeal properly proceeds on ground the judgment was void or illegal; Court of Appeals vacated void portion and remanded with directions to reinstate conviction |
Key Cases Cited
- Eubanks v. State, 239 Ga. 483 (1977) (claim that admitted facts do not constitute the charged offense must be raised by pretrial general demurrer or motion in arrest of judgment)
- Abreu v. State, 206 Ga. App. 361 (1992) (motion for new trial is not a procedural substitute for a motion in arrest of judgment)
- Frady v. State, 212 Ga. 84 (1955) (same—procedural limits on attacking indictment post-conviction)
- Parks v. State, 246 Ga. App. 888 (2000) (procedural vehicles for challenging sufficiency of accusation)
- Foskey v. State, 229 Ga. App. 209 (1997) (directions to trial court after improper granting of relief)
- Harris v. State, 258 Ga. App. 669 (2002) (habeas corpus is the remedy when indictment defects are not timely raised)
- State v. James, 211 Ga. App. 149 (1993) (appeal permitted from void or illegal judgments)