ENTWISLE v. THE STATE
A16A1782
Court of Appeals of Georgia
February 1, 2017
340 Ga. App. 122 | 796 SE2d 743
DOYLE, Chief Judge
The Katz Law Firm, Samuel E. Katz, for appellee.
DOYLE, Chief Judge.
Following a jury trial, Joe Don Entwisle was convicted of first degree burglary,1 second degree burglary,2 criminal trespass,3 two
On appeal, the evidence must be viewed in the light most favorable to support the verdict; indeed, the evidence is construed in favor of the verdict. [Entwisle] no longer enjoys a presumption of innocence. Moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.8
So viewed, the record shows that in early 2013, Entwisle approached the back door to Villa Hizer‘s home, wearing a backpack, and told her that he lived on a nearby street and was looking for his missing dog. Hizer had never seen Entwisle during the 35 years she had lived in her home, nor had she seen a dog matching the description given by Entwisle. A few weeks later, on April 23, 2013, Hizer returned home after being out of town, entered through the carport door, which appeared to be unlocked, and noticed that certain doors were ajar and dresser drawers were on the floor. The following items were missing from Hizer‘s home: watches, jewelry, baseball cards, a laptop computer, a gun, sterling silver lighters, and a piece of paper listing security codes. Hizer and police also discovered that a lock on one of her dining room windows had been broken, and there were pry marks on the outside of the window frame.
Also on April 23, 2013, police arrived at a location in response to a “fight call.” When they arrived, officers learned that one of the suspects had fled the scene in a green Ford heading toward Payne Road. Shortly thereafter, an officer spotted the Ford parked near what appeared to be an abandoned house on Payne Road. The officer
The officer attempted to enter the home, but the door was blocked by a stove; he then saw Jennifer Rowland, later identified as Entwisle‘s girlfriend, inside the house. While the officer spoke with Rowland, he heard another person running inside the house. The officer went around to the front door and knocked, and Rowland opened the door and squeezed through, making sure the officer could not see inside. While speaking with Rowland, the officer heard another person moving around inside the house, and Rowland eventually admitted her boyfriend, Entwisle, was inside. Rowland agreed to go inside; the officer, concerned for his safety, prevented her from closing the door and followed her into the house, where he found Entwisle hiding in a bedroom. While he was in the house, the officer observed two new bicycles in the kitchen, several suitcases, and many cardboard boxes. He applied for a warrant to search the house, but the warrant was denied.
Thereafter, Hizer purchased a new computer and attempted to restore her computer files using Carbonite, an online backup system she had installed on the laptop that was stolen from her home. While doing so, Hizer learned that someone had used the laptop the day after it was stolen and opened her Quicken files, which contained private financial data, including her credit card and bank account information.
An investigator obtained from Carbonite the IP addresses that were used to access Hizer‘s computer, including one from the Kings Inn motel. The investigator then learned that Rowland had rented a room at that motel, and Entwisle had stayed there with her. The investigator also discovered that someone using Hizer‘s computer after it was stolen had accessed an e-mail account containing Entwisle‘s name.
After learning that Entwisle had been the subject of the investigation at the Payne Road house on the same day that Hizer‘s home had been burglarized, the investigator obtained a search warrant for the Payne Road house, which warrant he executed on May 6, 2013. During the search, police recovered numerous stolen items, some of which belonged to Hizer and her husband, including jewelry, a watch, a piece of paper containing various security alarm codes, a pair of eyeglasses, and Hizer‘s husband‘s driver‘s license. Police also found9
On March 9, 2013, at approximately 10:00 a.m., James McCrary and his wife returned to their home on Burnett Ferry Road in Floyd County after breakfast and discovered that the glass on the door leading from their patio to the garage was broken and scattered on the floor inside the garage.10 Later that afternoon, police arrived at Holland Drive in response to a 911 call reporting “suspicious activity.” Police found various items, including tools, strewn on the side of the roadway near the woods. An officer followed a trail through the woods, along which he found additional items on the ground, including a hand truck, until he reached the back of McCrary‘s property on nearby Burnett Ferry Road. There, the officer saw a free-standing workshop behind McCrary‘s property, and McCrary confirmed that the items found in the woods belonged to him and were taken from his workshop.
Entwisle‘s girlfriend, Rowland, testified later at trial that at his request, she dropped Entwisle off on Holland Drive on March 9, 2013. Pursuant to his request, Rowland returned to the same spot approximately 15 minutes later, but she could not find Entwisle. While she was driving and looking for him, he called and advised her that he had seen police in the area; Rowland left the area after she received the call, saw the police cars, and “had a bad feeling.” Later that night, Rowland was at a friend‘s house less than a mile from where she dropped Entwisle off on Holland Road when Entwisle arrived on a bike. Entwisle, who had multiple scratches, was angry with Rowland because she would not help him retrieve from the woods items that he said he got from a nearby home; Entwisle told her that he had to cover himself and the items with leaves when the police arrived in the area.
Following a jury trial, Entwisle was convicted of first degree burglary, second degree burglary, criminal trespass, two counts of theft by taking, theft by receiving, computer invasion of privacy, and possession of a firearm by a convicted felon.11 The trial court denied Entwisle‘s motion for new trial, and this appeal followed.
1. Entwisle contends that he received ineffective assistance of counsel. We find no basis for reversal.
[T]o prevail on a claim of ineffective assistance of counsel, [Entwisle] must show both that counsel‘s performance
was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, he 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 particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel‘s part, the result of his trial would have been different. We accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.12
(a) Trial counsel filed and argued a motion to suppress the evidence found at the Payne Road house. Entwisle argues, however, that trial counsel rendered ineffective assistance in doing so by “fail[ing] to argue any applicable law and surrender[ing] the issue so quickly as if no motion was filed at all.” Specifically, Entwisle contends that trial counsel should have argued that Entwisle had a protected Fourth Amendment interest in the Payne Road house based upon his status as a guest and because he was performing renovation work on the property in exchange for rent, making the property a workspace.
In his motion to suppress, Entwisle averred that: he lived on 107 Lindsey Terrace; the Payne Road house was owned by Delane Lynch, his sister-in-law; no one lived in the Payne Road house; and Lynch had given Entwisle permission to be at the Payne Road home to work. Based upon those assertions, the trial court concluded that Entwisle did not have standing to challenge the search of the Payne Road house and denied the motion to suppress.
At trial, the investigating officer testified that the house was “very dilapidated, . . . had no running water[,] had no power. . . . It was in rough shape. . . . [I]t was very dirty. . . . The house was . . . basically to me unlivable.” Lynch, the owner, testified that during the time Entwisle was found in her house, “[v]agrants [went] in and out of my house all the time because it‘s—the grass [has grown] up all
As of 4/22/2013, property at 124 Payne Road is being occupied by Joe Don Entwisle and Jenny Rowland. The house is not abandoned. They are there to clean up, stay, protect, and reside. . . . Any questions concerning searching the house should be at the discretion of the occupants of the house.
The note was signed by Lynch. Rowland testified at trial that she and Entwisle lived in the house on Payne Road “[f]or a brief time,” conceding that it did not have utilities or running water. According to Rowland, instead of paying rent for the house, she and Entwisle were supposed “to fix the place up.”
“In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.”13 “[A] defendant must demonstrate both a ‘subjective’ expectation of privacy and that the expectation is one that society is willing to recognize as reasonable.”14
Regardless of whether Entwisle lived in the Payne Road house, “a place need not be respondent‘s ‘home,’ temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy.”15
A person has a legitimate expectation of privacy in his . . . home and may have a legitimate expectation of privacy in a house in which the person is an overnight guest; however, one who is merely present with the consent of the householder may not claim the protection of the Fourth Amendment.16
(b) Entwisle maintains that trial counsel was ineffective by failing to object to the hearsay testimony by Hizer introduced by the State to support the computer invasion of privacy charge. We agree.
At trial, Hizer testified that after the burglary at her home, she learned from Carbonite that someone had used her computer to access her Quicken files, which contained financial information regarding her bank and credit card accounts, and she immediately contacted her bank and credit card companies as a result. Entwisle argues that this testimony constituted inadmissible hearsay.
The State argues that Hizer‘s testimony was not hearsay, but was instead admissible to explain her subsequent conduct in contacting her bank and credit card companies and to show how the investigator identified Entwisle as a potential suspect in the bur-
[w]hen, in a legal investigation, the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor‘s conduct.22
That Code section, however, was not carried over into the new Evidence Code.23 Hizer‘s statement about what she learned from Carbonite was introduced to prove that Entwisle used her computer to access her financial information and therefore constitutes hearsay.24 The State does not contend that Hizer‘s statement is admissible under any other exception to the hearsay rule.
Although the decision of whether to interpose certain objections is generally a matter of trial strategy and tactics, trial counsel provided no reason for failing to object to [Hizer‘s] hearsay testimony about [someone using her computer to access her financial information]. In assessing the objective reasonableness of a lawyer‘s performance, we are not limited to the subjective reasons offered by trial counsel for his conduct. Instead, we consider whether “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“; if the answer to that question is yes, then the “actual lawyer cannot be said to have performed in an objectively unreasonable way.” In this case, we cannot identify any reason why a reasonable attorney would have decided not to object to the hearsay testimony that
The prejudice from trial counsel‘s deficiency is clear. [Hizer‘s] hearsay testimony was the only evidence offered to prove the elements of the [computer invasion of privacy] offense[]. Had this evidence been excluded, there would not have been sufficient evidence to convict [Entwisle] of [that offense]. Thus, but for counsel‘s performance, more than a reasonable probability exists that the outcome of the trial would have been different, and this amounted to ineffective assistance of counsel. Accordingly, we reverse the trial court‘s denial of [Entwisle‘s] motion for new trial with respect to the [computer invasion of privacy conviction].26
2. Entwisle argues that the trial court erred by admitting evidence of prior bad acts. This enumeration presents no basis for reversal.
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
A three-part test determines the admissibility of evidence under this Code section: (1) the evidence must be relevant to an issue other than defendant‘s character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act. A decision to admit such evidence will not be reversed absent a clear abuse of discretion.27
On appeal, Entwisle argues that the trial court erred by admitting the prior bad acts under
Notwithstanding Entwisle‘s waiver of this enumeration, however, it presents no basis for reversal. Our review of the record shows that although the trial court did not make specific findings regarding whether the probative value of the prior crimes was outweighed by its prejudicial impact, it explicitly referenced the balancing test and noted that “the evidence must satisfy Rule 403.” Thus, by admitting the evidence, the trial court implicitly found that the evidence was admissible pursuant to this test.30 Further,
it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter. As we have noted,
OCGA § 24-4-403 offers an extraordinary remedy that must be used sparingly because it results in the exclusion of concededly probative evidence. In close cases, the balance is struck in favor of admissibility.31
3. Entwisle contends that the evidence was insufficient to support his conviction for first degree burglary of McCrary‘s home.35 We disagree.
Entwisle contends that the State failed to prove that he entered the building based upon McCrary‘s trial testimony that the person who broke the glass “didn‘t get into the house. They . . . just broke the window.” This argument is meritless.
The evidence supported a finding that Entwisle, without authority, entered the workshop at the back of McCrary‘s property and took multiple items, and he broke the glass on the door leading from the patio to the garage of McCrary‘s occupied home, but the door was locked with a deadbolt and could not be opened without a key. Viewing the evidence in a light most favorable to the verdict, there was sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that Entwisle “‘[broke] the plane of the structure with the intent to steal or with the intent to commit a felony therein.‘”36
DECIDED FEBRUARY 1, 2017.