A15A1818. FERGUSON v. THE STATE.
A15A1818
Court of Appeals of Georgia
DECIDED MARCH 1, 2016.
(783 SE2d 380)
ELLINGTON, Presiding Judge.
Given these circumstances, “a reasonable person could conclude that [Rebuffi‘s] freedom of action was only temporarily curtailed and that a final determination of [his] status was simply delayed.” Abrahamson, 276 Ga. App. at 586-587. We conclude that the lapse of time between Rebuffi‘s detention and the DUI task force officer‘s arrival on the scene did not cause Rebuffi‘s detention to ripen into a custodial arrest which would have required that Miranda warnings be given. See id.
Judgment affirmed. Barnes, P. J., and McMillian, J., concur.
DECIDED MARCH 1, 2016.
The Merchant Law Firm, Ashleigh B. Merchant, for appellant.
Barry E. Morgan, Solicitor-General, Mimi A. Scaljon, Melissa Tatum, Assistant Solicitors-General, for appellee.
A DeKalb County jury found Erik Ferguson guilty beyond a reasonable doubt of trafficking a person for sexual servitude,
On appeal from a criminal conviction, the appellate court
view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson υ. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State‘s case, [the appellate court] must uphold the jury‘s verdict.
(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
(a) Count 1 of the indictment charged Ferguson with committing the offense of trafficking a person for sexual servitude during the period October 15, 2007, to January 31, 2008. Ferguson contends that the evidence established that he was incarcerated during that period. In addition, he contends that the alleged victim, A. G., was his accomplice as to that offense and that her testimony was not corroborated, rendering the evidence insufficient under former
A. G. testified that she met Ferguson in January 2007, about a month before she turned 17; she immediately moved in with him. Within a year, she had Ferguson‘s child. Just after she turned 17, A. G. first became involved in sex work when, at Ferguson‘s direction, she accompanied another young woman to meet a customer of an escort service. Ferguson operated an escort service called “Addicted Pleasure Models.” A. G. worked for Ferguson as a prostitute, having sex for money, danced at adult entertainment clubs and “stripper parties,” and gave erotic massages. Ferguson acted as her pimp, and she gave all the money she earned to him. If she failed to turn over the money, he would beat her. To promote the escort services, A. G. regularly passed out business cards and fliers, and multiple times per day she posted ads on Craigslist in the “escort services” section. A. G.
A. G. testified that on January 9, 2009, she, Ferguson, and three of Ferguson‘s other girls were headed downtown to meet customers at a hotel, and they passed out Addicted Pleasure Models business cards around a bus stop on Candler Road. A. G. explained that their purpose in passing out the cards was to solicit customers for prostitution services. Police officers stopped the girls to question them and detained them when they discovered that two girls, who had just started working for Ferguson, were runaways. A. G. was carrying a camera that included numerous images that Ferguson had taken of A. G. and the other girls to use in Craigslist ads. Nine of the images, introduced at trial as State‘s Exhibits 71 through 79, depict girls other than A. G., displaying their genitals to the viewer.
A. G. was arrested. While she was in jail, in recorded telephone calls with Ferguson, the two discussed the operations of the prostitution business. He told her that one of the other girls had made $50 the previous night, and he “had the money in [his] pocket.” He said that the girl was going to walk the streets, passing out flyers to get some more business. He told her he had taken a girl away from another man and that the new girl was inexperienced in demanding a higher price from customers, rather than agreeing to the price first offered. They discussed having enough girls working for them, and Ferguson said that adding some “white hoes” to their operation would “take [them] all the way to the tip-top,” and he remarked that those girls tended to be more “loyal to their man.” Ferguson asked A. G. for the password for her Craigslist account so he could delete the ads and photographs she had posted, some of which included photographs of underaged girls, and she coached him through that process.
As noted above, Ferguson contends that the alleged victim, A. G., was his accomplice as to the offense charged in Count 1 of the indictment, trafficking a person for sexual servitude, and that her testimony was not corroborated, rendering the evidence insufficient under former
Pretermitting whether corroboration was required, the evidence authorized the jury to find that A. G.‘s testimony was corroborated, by a variety of evidence. For example, Ferguson‘s telephone conversations with A. G. while she was in jail, regarding the day-to-day operation of the ongoing prostitution enterprise, and the need to remove ads from the Craigslist website that included photographs of underage girls, connected Ferguson to the Addicted Pleasure Models escort service promoted in those postings and therefore to the prostitution enterprise. Lemery v. State, 330 Ga. App. at 626-627 (1); Lewis v. State, 278 Ga. App. 160, 161 (1) (628 SE2d 239) (2006).
In contending that the evidence established an alibi of incarceration, Ferguson points only to his own testimony that he was incarcerated during the period specified in Count 1 of the complaint, October 15, 2007 to January 1, 2008. Even if the jury accepted Ferguson‘s self-serving testimony that he was in jail during that
(b) Counts 2 and 3 charged Ferguson with attempting to commit trafficking a person for sexual servitude. The indictment alleged that on January 9, 2009, Ferguson had two girls, sixteen-year-old K. P. and fifteen-year-old K. L., distribute business cards for Addicted Pleasure Models in order to solicit men to buy sexual services from the girls. In Counts 6 and 7, the indictment charged Ferguson with conspiring to commit pimping for the same two girls, on the same date, again by having the girls distribute business cards for Addicted Pleasure Models in order to solicit men to buy sexual services from them.5 In Count 8, the indictment charged Ferguson with enticing a child under the age of 16 for indecent purposes, through taking K. L. to 2004 Candler Road on the same date, for the purpose of prostitution.6 Ferguson argues that K. P. was the only witness who testified who was in a position to corroborate A. G.‘s testimony that Ferguson directed the girls in escort service activities and that K. P.‘s testimony did not corroborate A. G.‘s. He contends that he cannot be convicted on A. G.‘s uncorroborated testimony. He also contends that there was no evidence that K. L. was younger than 16 years old.
K. P. testified that in early January 2009, she met Ferguson and A. G. in a bar; she was sixteen years old and a runaway. She testified that K. L. was also there that night. K. P. and K. L. were friends and had lived on the same street growing up. K. P. and K. L. left the bar with Ferguson and A. G. and stayed at their house. Ferguson talked to K. P. about “what would happen and how [she] would be there and what [she] would do there.” He asked if she would be “comfortable doing prostitution,” and she said she would. K. P. testified that, on January 9, 2009, a few days after she met Ferguson, she was with him, A. G., K. L., and another girl at a bus stop on Candler Road. K. P. testified that they were on their way to go shopping, and that she and
Two police officers testified that there was an unusual amount of activity at that bus stop that day and that four girls (including A. G., K. P., and K. L.) were handing out adult entertainment business cards to men. Officers determined that, after initially giving false dates of birth, K. P. and K. L. provided the correct dates; K. P. was 16 years old and K. L. was 15 years old. An officer dialed the telephone number on the business card, and A. G.‘s cell phone rang. The officers found nude photographs of the younger girls on A. G.‘s camera. A. G. was charged with enticing minors; the minors were charged with giving false information.
Turning to Ferguson‘s argument that A. G.‘s testimony that the girls were engaged in prostitution at Ferguson‘s direction on January 9, 2009, was uncorroborated, we conclude that the jury could find corroboration in K. P.‘s testimony that, a few days earlier, Ferguson took her and K. L., two teenaged runaways, home from a bar and Ferguson asked her if she would be comfortable doing prostitution in his household. In addition, the jury could find corroboration in the evidence that A. G. possessed State‘s Exhibits 71 through 79, that K. P. and K. L. gave a business card for the escort service to a man in a car, and that Addicted Pleasure Models posted ads for prostitution on Craigslist.
As to K. L.‘s age, although K. P. testified that she was not sure of K. L.‘s exact age, she testified that they had been in the same grade in school together. More specifically, K. L. gave her date of birth to investigators, providing evidence that she was less than 16 years of age on January 9, 2009.
(c) Counts 9 through 17 charged Ferguson with conspiring to commit sexual exploitation of a child through possessing photographs depicting the lewd exhibition of the child‘s genitals.7 The photographs, State‘s Exhibits 71 through 79, depict 16-year-old K. P., 15-year-old K. L., or both. He contends that he did not take the photographs or direct that they be taken and that he did not possess the photographs, which were found on A. G.‘s camera on January 9, 2009. He contends that A. G. was his alleged co-conspirator and that
For the foregoing reasons, Ferguson‘s sufficiency arguments fail. Pepe-Frazier v. State, 331 Ga. App. 263, 264, n. 2 (770 SE2d 654) (2015); Lemery v. State, 330 Ga. App. at 628 (1).
2. Ferguson contends that the trial court erred in denying his motion to dismiss the indictment.
First, Ferguson contends that the indictment failed to allege specific dates and deprived him of a potential alibi defense. This argument can only go to Counts 1 and 5 of the indictment, which charged Ferguson with committing offenses during the period October 15, 2007, to January 31, 2008, as the remaining counts all specified an offense date of January 9, 2009.
Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates. In such a situation, though, the range of dates alleged in the indictment should not be unreasonably broad.
(Citations and punctuation omitted.) Blanton v. State, 324 Ga. App. 610, 614-615 (2) (751 SE2d 431) (2013). Moreover,
the true test of the sufficiency of an indictment or accusation to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
(Citations and punctuation omitted.) State v. Leatherwood, 326 Ga. App. 730, 732-733 (757 SE2d 434) (2014). As noted above, the evidence authorized the jury to find that A. G. prostituted herself for
Next, he argues that Counts 1, 2, and 3 failed to allege facts of sexually explicit conduct, as required for trafficking a person for sexual servitude, and Counts 6 and 7 failed to allege facts that K. P. or K. L. engaged in any acts of prostitution. These arguments lack merit. By virtue of the statutory definition of trafficking another person for sexual servitude, an indictment that alleges a violation of
Finally, he contends that Counts 9 through 16 of the indictment were flawed in alleging in one indictment both a conspiracy (to commit sexual exploitation of children) and, as the substantive step taken in furtherance of the conspiracy, the underlying substantive act (sexual exploitation of children by possessing photographs depicting the lewd exhibition of children‘s genitals). Although a conviction for conspiring to commit an offense merges into a conviction for the completed offense for sentencing, Ferguson has not identified any authority for his position that an indictment is void if it alleges a conspiracy that achieved its object.8 Indeed, the Criminal Code
A person may be convicted of the offense of conspiracy to commit a crime... even if the crime which was the objective of the conspiracy was actually committed or completed in pursuance of the conspiracy, but such person may not be convicted of both conspiracy to commit a crime and the completed crime.
The trial court did not err in denying Ferguson‘s motion to dismiss the indictment.
3. Ferguson contends that the trial court erred in failing to instruct the jury sua sponte on the requirement that the testimony of an accomplice be corroborated. He acknowledges that he did not request such a jury instruction. Because he did not submit a written request, an oral request during the charge conference for such an instruction, or an objection to the court‘s failure to give such an instruction, this Court‘s review is limited to a determination of whether the trial court‘s instruction constituted “plain error.” See
[f]irst, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
(Citation and punctuation omitted; emphasis in original.) McLean v. State, 291 Ga. 873, 876-877 (4) (738 SE2d 267) (2012). Pretermitting
4. Ferguson contends that his trial attorney was ineffective in failing to request a jury instruction on corroboration of an accomplice‘s testimony.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel‘s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel‘s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel‘s conduct falls within the broad range of reasonable professional conduct.
(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003).
In denying Ferguson‘s motion for a new trial on the basis of ineffective assistance of counsel, the trial court ruled that Ferguson‘s trial counsel was not deficient for failing to request a charge on accomplice corroboration because, “where an accomplice witness’ testimony is independently corroborated, a jury instruction on corroboration is not required, whether or not the charge was requested by counsel[,]” citing Jackson v. State, 294 Ga. 34, 36-37 (2) (751 SE2d 63) (2013), and Hall v. State, 241 Ga. 252, 257-258 (7) (244 SE2d 833) (1978). Although the Supreme Court of Georgia has since reversed these two cases, and others holding likewise,10 Georgia law as it
Moreover, at the hearing on Ferguson‘s motion for a new trial, his trial counsel testified that, as a matter of trial strategy, he decided not to request a jury instruction on corroboration because such an instruction would have essentially conceded that Ferguson and A. G. were working together. His counsel testified that he believed it would be more effective to attack A. G.‘s credibility directly and try to distance Ferguson from her prostitution activities.11
As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. Matters of trial tactics, even if they appear in hindsight to be questionable, are grounds to find counsel ineffective only if the tactical decision is so patently unreasonable that no competent attorney would have chosen it.
(Citations and punctuation omitted.) Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009). The trial court did not err in denying Ferguson‘s motion for a new trial.
Judgment affirmed. Dillard and McFadden, JJ., concur.
DECIDED MARCH 1, 2016.
Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.