The State v. Davis
339 Ga. App. 214
| Ga. Ct. App. | 2016Background
- In May 2013 the defendant (Davis) was subject to an ex parte temporary protective order after an alleged incident involving his then-wife and their children; a divorce action was pending.
- A Final Judgment and Decree of Divorce (Divorce Order), entered March 3, 2014, dismissed the temporary protective order but included a provision limiting contact: only non-threatening, non-harassing communications related to children; Davis was barred from coming within 150 yards of his ex‑wife and older son except for specified parental events and pick‑ups/drop‑offs, with some carve‑outs for the younger child’s events.
- On March 18, 2015 Davis was indicted on two counts of aggravated stalking (OCGA § 16‑5‑91) alleging he contacted his ex‑wife and older son in violation of the Divorce Order; a separate drug possession count was also indicted.
- Davis moved to dismiss the aggravated stalking counts, arguing a violation of a divorce decree cannot support aggravated stalking under OCGA § 16‑5‑91(a); the trial court granted the motion.
- The State appealed, arguing the Divorce Order provision constitutes a protective order or equivalent injunctive order within OCGA § 16‑5‑91(a) so that its violation can constitute aggravated stalking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Divorce Order provision falls within OCGA § 16‑5‑91(a)’s list of orders whose violation can support aggravated stalking | The State: the contact restriction is in substance an order listed (a permanent injunction/protective order) and its violation supports aggravated stalking | Davis: a divorce decree is not one of the orders enumerated in the statute, so its violation cannot support aggravated stalking | The Court reversed: the Divorce Order provision is a "permanent injunction" under the statute and its violation can support aggravated stalking |
| Whether substance or nomenclature controls when classifying the order | The State: substance controls; functional injunctive language suffices | Davis: form matters—divorce order title and missing procedural protections mean it is not a protective injunction | The Court: substance over label — the provision prohibits specific future contact and meets injunction requirements |
| Whether limited carve‑outs in the Divorce Order preclude treating it as an injunction | Davis: limited permitted contact shows it isn’t a protective/permanent injunction | The State: specificity and future restraint show injunctive character despite carve‑outs | The Court: carve‑outs do not defeat injunctive character; order is specific and proscribes future acts |
| Whether failure to follow protective‑order procedures prevents treating the Divorce Order as an injunction | Davis: procedural formalities for protective orders weren’t followed | The State: consent and substance of the order control | The Court: procedural irregularities/consent don’t change the substantive character — the order is a permanent injunction under the statute |
Key Cases Cited
- Deal v. Coleman, 294 Ga. 170 (statutory interpretation: plain meaning governs)
- Norred v. Teaver, 320 Ga. App. 508 (plain statutory language controls; no construction if unambiguous)
- Sallee v. State, 329 Ga. App. 612 (standard of review for demurrer / sufficiency of indictment)
- Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639 (definition/character of injunctions as prohibitions on future acts)
- Bearden v. Georgia Power Co., 262 Ga. App. 550 (injunctions must describe restrained acts with reasonable detail)
- Hendrix v. Hendrix, 254 Ga. 662 (limitations on incorporation by reference in injunction descriptions)
- Keaton v. State, 311 Ga. App. 14 (discussed whether certain domestic‑relations orders can support aggravated stalking; distinguishable on facts)
- Abel & Sons Concrete, LLC v. Juhnke, 295 Ga. 150 (substance over nomenclature for identifying interlocutory injunctions)