MARLOW v. THE STATE; TRIM v. THE STATE
A16A0877, A16A0878
Court of Appeals of Georgia
NOVEMBER 9, 2016
RECONSIDERATION DENIED DECEMBER 8, 2016
792 SE2d 712
DOYLE, Chief Judge.
Judgment affirmed. Boggs and Dillard, JJ., concur.
L. David Wolfe, for appellant.
Robert D. James, Jr., District Attorney, Elizabeth D. Racine, Lee Y. Williams, Deborah D. Wellborn, Assistant District Attorneys, for appellee.
DOYLE, Chief Judge.
Following a joint trial, Kelly Marlow and Robert Trim (collectively, “the appellants“) were each convicted of two felony counts of making a false statement.1 In separate appeals, the appellants challenge the denial of their subsequent motions for new trial. They assert identical enumerations of error: (1) the evidence was insufficient to support their convictions; (2) the rule of lenity should have been applied to their convictions; (3) the trial court erred in charging the jury; and (4) the trial judge should have recused sua sponte. We consolidate these appeals for disposition in a single opinion, and for the reasons that follow, we affirm the appellants’ convictions, but vacate their sentences and remand for resentencing.
Viewed in the light most favorable to the verdict,2 the record shows that on June 13, 2013, at approximately 11:00 p.m., a Canton police officer responded to a 911 call made by Barbara Knowles outside the Painted Pig restaurant in Canton.3 When he arrived, the
The officer took a report, but he advised the trio that he would not pursue an investigation or charges and that they could obtain a citizen warrant in magistrate court if they wished to further pursue the matter.
A police supervisor subsequently reviewed the incident report, and on June 14, 2013, he referred the matter to a detective for investigation. The detective contacted Knowles, Trim, and Marlow and asked them to provide written statements via e-mail. On June 19, 2013, Trim e-mailed his written statement to the detective, and he went into the police station and signed it on July 1, 2013. In the statement, Trim advised that he, Knowles, and Marlow were crossing the street, and as they reached the centerline of the road, a white BMW “began to accelerate and then switched from the right lane to the left lane, where we were approximately halfway across.” According to his statement, Knowles “moved out of the way quickly[,] and [Trim] pushed ... Marlow out of the lane to avoid being hit by the car. The car passed, and [he] could feel the closeness of the car. ... It was incredibly close, and [Trim] barely got out of the way.” Trim stated that the BMW was very similar to that driven by Petruzielo, who had attended the school board meeting earlier that night and “was clearly angry and frustrated and directed much of that publicly at ... [Marlow].”
Marlow also sent the detective a written statement via e-mail, which statement she later signed on July 1, 2013. Marlow stated therein that on June 13, 2013, as she, Knowles, and Trim reached the center lane of the two-lane, one-way road in front of the restaurant, a white BMW SUV “abruptly changed lanes and accelerated in [their] direction.”
Trim ... noticed the vehicle approaching [them] and felt it was necessary to push [Marlow] from behind onto the side-
On June 20, 2013, the detective obtained surveillance video from outside the Painted Pig at 10:40 p.m. on June 13, 2013.5 According to the detective, the video shows Knowles “casually” walk across the street to the sidewalk without turning around and walk into the restaurant. Trim then reaches the sidewalk, followed by Marlow. The video does not show Trim pushing Marlow out of the way in the way they both described in their statements. It does depict Petruzielo driving past in his vehicle.6 The detective described the surveillance video as “inconsistent” with the accusations made by the appellants and Knowles.
On July 2, 2013, Knowles and the appellants met with police at the scene, and they gave recorded oral statements and reenacted their version of the events involving Petruzielo, narrating as they did so.7 Their statements essentially repeated their written statements, and according to the detective, their statements and reenactment remained inconsistent with the video surveillance.
As a result of the investigation, Marlow was charged with two felony counts of making a false statement, one on July 1, 2013 (Count 8), and another on July 2, 2013 (Count 9). Trim also was charged with two felony counts of making a false statement, one on July 1, 2013 (Count 11), and another on July 2, 2013 (Count 12). They were each convicted of both counts and sentenced to serve ten years, with sixty days in confinement and the remainder on probation. The trial court denied their subsequent motions for new trial, and these appeals followed.
1. The appellants contend that the evidence was insufficient to support their convictions. We disagree.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient
A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.
Here, the jury viewed the video surveillance footage and read and heard the testimony regarding the appellants’ statements to police. The fact that witnesses conceded on cross-examination that the appellants’ statements “could have been the product of an innocent lapse in memory, since the[] statements were not given until days or weeks after the incident[,] and [the appellants] made these statements from a ‘cold’ memory [without reviewing the video surveillance footage]” is unavailing.
It is the province of the jury to resolve any conflicts in the evidence and to determine the credibility of witnesses, and the fact that such conflicts may be resolved adversely to the [appellants] does not render the evidence insufficient. The evidence was sufficient to authorize the jury to determine that the State excluded all reasonable hypotheses save that of [the appellants‘] guilt, and to authorize a rational trier of fact to find [Trim and Marlow] guilty beyond a reasonable doubt of the crimes for which [they were] convicted.10
As this Court recently explained in Gordon v. State,11 a whole-court case decided after the trial court denied the appellants’ motions for new trial,12
the rule of lenity finds its roots in the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity, more specifically, ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, the ambiguity will be resolved in favor of a defendant, who will then receive the lesser punishment. But if after applying the traditional canons of statutory construction the relevant text remains unambiguous, the rule of lenity will not apply. The fundamental inquiry when making this assessment, then, is whether the identical conduct would support a conviction under either of two crimes with differing penalties, i.e., whether the statutes define the same offense such that an ambiguity is created by different punishments being set forth for the same crime.
In explaining the appropriate analysis to apply in making this assessment, however, the Supreme Court of Georgia has cautioned that simply because a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. By way of example, ... depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery,
OCGA § 16-5-23 ,
a misdemeanor; aggravated battery,
OCGA § 16-5-24 , a felony; simple assault,OCGA § 16-5-20 , a misdemeanor; aggravated assault,OCGA § 16-5-21 , a felony; and malice murder,OCGA § 16-5-1 , a felony. In the foregoing circumstance, a defendant could be prosecuted for multiple crimes. But when a defendant is prosecuted for and [found guilty] of multiple crimes based upon a single act, the injustice that must be avoided is sentencing the defendant for more than one crime following [a guilty verdict for] multiple crimes based upon the same act.13
Thus, the rule of lenity applies where there is ambiguity in the two statutes such that “‘both crimes could be proved with the same evidence.‘”14
Here, the appellants were charged with the felony offense of making a false statement, which is committed when a person
... knowingly and willfully falsifies ... a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state....15
The appellants argue that the rule of lenity required that they be sentenced for committing the misdemeanor offense of making a false report of a crime, which is committed when a person “willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state. ...”16
In Counts 8 and 11, the indictment charged the appellants with
COUNT 8
[And the grand jurors] ... further charge and accuse ... [Marlow] with the offense of MAKING A FALSE STATEMENT (
O.C.G.A. § 16-10-20 ) for that [Marlow], on the 1st day of July, 2013, ... did ... knowingly and willfully provide a false written statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department ..., to wit: ... Marlow stated that when [she], Trim[,] and ... Knowles were crossing Main Street on the evening of June 13, 2013, a white BMW vehicle that Marlow saw daily in the parking spot of ... Petruzielo accelerated and abruptly changed lanes[,] driving towards ... Marlow, ... Trim[,] and ... Knowles; and stated that ... Trim pushed ... Marlow out of the way of said vehicle to prevent ... Marlow from being struck by said vehicle; and ... Marlow stated that there were several witnesses at the entrance of the restaurant who inquired whether ... Marlow, Knowles[,] and ... Trim knew the driver of said vehicle....COUNT 11
[And the grand jurors] ... further charge and accuse ... [Trim] with the offense of MAKING A FALSE STATEMENT (
O.C.G.A. § 16-10-20 ) for that [Trim], on the 1st day of July, 2013, ... did ... knowingly and willfully provide a false written statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department ..., to wit: ... Trim stated that when [he], ... Knowles[,] and ... Marlow were crossing Main Street on the evening of June 13, 2013, a white BMW vehicle, similar to the vehicle owned by Frank Petruzielo, accelerated and changed lanes driving towards ... Trim as Trim crossed the center of Main Street; and stated that ... Trim physically moved ... Marlow to prevent ... Marlow from being struck by said vehicle; and ... Trim stated that ... Trim was barely able to get out of the way of said vehicle; and ... Trim stated that there were approximately four to six people on the sidewalk outside of the Painted Pig restaurant who witnessed the said events and commented on the actions of the individual driving said vehicle....
COUNT 9
[And the grand jurors] ... further charge and accuse ... [Marlow] with the offense of MAKING A FALSE STATEMENT (
O.C.G.A. § 16-10-20 ) for that [Marlow], on the 2nd day of July, 2013, ... did ... knowingly and willfully make a false statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department ..., to wit: ... Marlow stated that when [she], ... Trim[,] and ... Knowles were crossing Main Street on the evening of June 13, 2013; a vehicle being driven by Frank Petruzielo accelerated toward ... Marlow, ... Trim[,] and ... Knowles; and ... Marlow stated that ... Trim physically moved ... Marlow to prevent ... Marlow from being struck by said vehicle; and ... Marlow stated that ... Marlow stopped and paused when ... Marlow reached the sidewalk; and ... Marlow stated that there were witnesses on the sidewalk who observed the actions of ... Petruzielo....COUNT 12
[And the grand jurors] ... further charge and accuse ... [Trim] with the offense of MAKING A FALSE STATEMENT (
O.C.G.A. § 16-10-20 ) for that [Trim], on the 2nd day of July, 2013, ... did ... knowingly and willfully make a false statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department ..., to wit: ... Trim stated that when ... Trim was crossing Main Street on the evening of June 13, 2013, a vehicle being driven by Frank Petruzielo accelerated toward ... Trim, ... Knowles[,] and Marlow; and ... Trim stated that ... Trim physically moved ... Marlow to prevent ... Marlow from being struck by said vehicle; and ... Trim stated that ... Trim, ... Marlow[,] and ... Knowles then stopped on the sidewalk to discuss the actions of ... Petruzielo; and ... Trim stated that there were multiple witnesses on the sidewalk who observed the actions of ... Petruzielo....
“Upon review of the two statutes at issue, although there are many ways that the crime of making a false statement may be committed, [the appellants‘] conduct, as charged, subjected [them] to prosecution and sentencing under both
3. The appellants argue that the trial court erred by failing to give two requested charges. We find no basis for reversal.
(a) The appellants contend that the trial court erred by denying their requests to instruct the jury on the affirmative defense of mistake of fact. At trial, the appellants argued that their statements to police were either true or, if false, were a result of faulty memory or mistake of fact. They requested a jury charge on mistake of fact, and the trial court refused to give such a charge.
Under
Here, the appellants’ insistence that their testimony was not false certainly does not support a mistake-of-fact charge.20 And if their memory was faulty or they somehow misunderstood the actual events surrounding their crossing of the street and Petruzielo‘s travel in his car at that time, such mistakes were superinduced by their own fault or negligence. Thus, “[the] evidence does not raise a mistake of fact defense.”21
Further, a conviction generally should not be reversed in any case, however, where the charge of the court fully and
Here,
[t]he transcript ... shows that the trial court‘s charge fully informed the jury on the charge ..., the presumption of innocence, the State‘s burden to prove [the appellants‘] guilt beyond a reasonable doubt, credibility of witnesses, impeachment, [and] criminal intent.... Nevertheless, the jury found [Marlow and Trim] guilty. Therefore, based on the evidence of record and the charge given, we find that, even if a charge of mistake of fact had been required, any error in failing to give the charge was harmless.23
(b) The appellants also argue that the trial court erred by denying their request to charge the jury on the lesser included misdemeanor offense of obstruction. Given our holding in Division 2 vacating the appellants’ felony sentences for making a false statement, this argument—that obstruction is a lesser included offense of making a false statement—is moot.
4. Finally, the appellants contend that the trial judge erred by failing to recuse. We disagree.
Several months after the trial, the appellants filed motions to recuse the trial judge, supported by the affidavits of trial counsel alleging that (a) the trial judge failed to disclose that she “is purported to be a member of the Board of Trustees for Reinhardt University,” and “Petruzielo is also purported to be an officer at Reinhardt University“; and (b) Reinhardt University had “a partnership agree-
“There is no duty for a trial judge to sua sponte recuse [her]self absent a violation of a specific standard of
In construing [former] Canon 3, this Court has interpreted the phrase “impartiality might reasonably be questioned” as meaning the existence of a reasonable perception of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates.28
On appeal,
a trial judge‘s failure to sua sponte recuse [herself] will be reversed only [if] the conduct or remark of the judge constitutes an egregious violation of a specific ethical standard, and it must support the inescapable conclusion that a rea-
sonable person would consider the judge to harbor a bias that affects [her] ability to be impartial.29
To warrant recusal, the alleged bias must be
of such a nature and intensity to prevent the complaining party from obtaining a trial uninfluenced by the court‘s prejudgment. To warrant disqualification of a trial judge the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.30
Here, the basis for the recusal motion is the trial judge‘s alleged extrajudicial professional contact and involvement with Petruzielo through her position at a local college. The appellants, however, cite to no evidence that the two had any actual contact or involvement, much less of the extent of such a relationship.31 Similarly, the appellants cite to no evidence regarding actual involvement between the trial judge and the school board.
The focus here is not on bias in fact but whether the judge‘s impartiality might reasonably be questioned, keeping in mind the reality that any judge will have come to the bench after having had extensive contacts with the community and the legal profession. ... Any analysis of the necessity for recusal is necessarily fact-bound, requiring an examination of the nature and extent of any business, personal, social or political associations, and an exercise of judgment concerning just how close and how extensive (and how recent) these associations are or have been.32
The allegations in this case simply are “not enough reasonably to call into question the trial judge‘s impartiality in this case.”33 Accordingly, the trial judge did not err by failing to recuse.
Judgments of conviction affirmed, sentences vacated and cases remanded for resentencing. Andrews, P. J., and Ray, J., concur.
DOYLE
CHIEF JUDGE