Thomas Pierson v. State , 824 S.E.2d 657 ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 25, 2019
In the Court of Appeals of Georgia
A18A1460. PIERSON v. THE STATE.
REESE, Judge.
A jury found Thomas Pierson guilty of two counts of sexual assault of a person
in custody, four counts of violation of oath by a public officer, and one count each of
false imprisonment and tampering with evidence.1 He appeals from the judgment on
his convictions, arguing that the evidence was insufficient to support his sexual
assault and violation of oath convictions. For the reasons set forth, infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,2 the evidence showed
the following facts. At approximately 12:15 p.m. on February 14, 2016, a woman,
V. C., was driving southbound on Georgia Highway 85 on her way to have lunch with
1
See OCGA §§ 16-6-5.1 (b) (3); 16-10-1; 16-5-41 (a); 16-10-94 (a).
2
See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
a friend, K. F. V. C. was unfamiliar with the area, so she was on the phone with K. F.,
who was giving her directions. The Appellant, a deputy with the Harris County
Sheriff’s Office, drove past V. C.’s car in the opposite direction and observed that she
was speeding. The Appellant turned his patrol car around, activated the car’s blue
lights, and stopped V. C.’s car (hereinafter, “Traffic Stop 1”).3
After the Appellant obtained V. C.’s driver’s license, the two began “flirting”
with one another; V. C. admitted at trial that she flirted with the Appellant because
she hoped it would help her avoid a speeding ticket. After a few minutes, the
Appellant wrote up a warning citation, but did not give it to V. C. at that time. When
he told V. C. that he was going to give her a warning instead of a ticket, he said that
he had not told her sooner because he wanted to make her “sweat a little bit[.]” As the
Appellant and V. C. continued to flirt, V. C. realized that her seatbelt had pulled her
shirt down so that the Appellant was able to see down her shirt, and she adjusted her
seatbelt to correct the problem. The Appellant responded by telling her that he might
have to change the warning citation to a speeding ticket. After flirting with V. C. a
bit more, the Appellant suggested that V. C. drive a little way up the highway and
3
A video recording of Traffic Stop 1, obtained from the Appellant’s patrol car
dash cam on the day at issue, was admitted into evidence and played for the jury at
trial.
2
turn right onto the first side road. The Appellant then ended Traffic Stop 1 by giving
V. C. a warning citation for speeding and returning her driver’s license.
As V. C. pulled her car back onto the highway to leave, she saw a “big box
truck” coming toward her in her lane, and V. C. purposely rushed to pull in front of
it so the truck would be between her car and the Appellant’s patrol car. As she was
driving away, V. C. saw the side road the Appellant had told her to turn onto, but she
intentionally drove past it and continued driving south on the highway. Less than five
minutes later, the big box truck behind V. C. turned off the highway, and the
Appellant’s patrol car “rushed up behind [her].” V. C. tried to ensure that she was
driving below the speed limit while she again talked on the phone with K. F., getting
directions and telling him about Traffic Stop 1. The Appellant pulled up “close
behind” V. C.’s car, activated his blue lights, and pulled V. C. over a second time
(“Traffic Stop 2”).
As soon as he parked his patrol car behind V. C.’s car, the Appellant turned off
his dash cam recorder.4 At trial, the Appellant admitted that he knew that, if the dash
4
A video recording of Traffic Stop 2 that was obtained from the Appellant’s
patrol car dash cam confirmed that, as soon as the Appellant parked his patrol car
behind V. C.’s car, the dash cam stopped recording, so there was no audio or video
recording of what occurred thereafter. The recording was admitted into evidence and
played for the jury at trial.
3
cam recorder “continued to film [Traffic Stop 2, the recording] was going to be
evidence of whatever took place on that event[.]” As the Appellant walked toward
V. C.’s car, V. C. rolled down her window and asked him, “[W]hy the hell did you
pull me over this time[?]” The Appellant told her that he was sorry and that he “just
wanted to talk to [her].” There was a lot of traffic on the highway during Traffic Stop
2, and the Appellant told V. C. to pull her car forward and turn onto the next side
road.5 The Appellant’s patrol car’s blue lights were still activated, and V. C. complied
because she “thought [she] had to.” V. C. turned and stopped her car on the side road,
leaving enough room behind her for the Appellant’s patrol car to park. The Appellant,
however, drove his patrol car alongside V. C.’s car, rolled down his window, and told
her to follow him. Although uncertain about what she was supposed to do under these
circumstances, V. C. believed she had to obey the Appellant’s directions, so she
followed the Appellant as he drove down the side road and around a corner. The
Appellant then turned and drove down a dirt road and parked, and V. C. became
It is undisputed that the Appellant’s act of turning off the dash cam recorder
during Traffic Stop 2 constituted a breach of the sheriff’s department’s policies, and
the act was the basis for his tampering with evidence conviction.
5
The recording of the few seconds that preceded Traffic Stop 2 showed that
the Appellant passed some parking lots where he could have safely conducted the
stop away from highway traffic.
4
afraid and nervous about the situation. V. C. did not drive down the dirt road but,
instead, stopped her car on the side road and stayed inside with her doors locked. The
Appellant walked back to V. C.’s car and told her that he “just want[ed] to talk to
[her],” so she rolled her window down. After talking to V. C. for a few minutes, the
Appellant suddenly reached through her car window, grabbed her arm, unlocked the
car door, pulled the door open, and tried to pull her out of the car. V. C. resisted and
tried to stay in her car, but the Appellant told her that he just “wanted to see what [he
was] looking at[ ]” and convinced her to walk with him to his patrol car so they could
talk.
While the Appellant and V. C. were talking in front of the patrol car, the
Appellant suddenly grabbed V. C. and forced her to perform oral sex on him. During
the assault, V. C. noticed that the Appellant was wearing blue plaid boxer shorts.
And, at some point during the assault, the Appellant received a dispatch call on his
police radio directing him to go to another location. The Appellant also “fiddl[ed]”
with something on his belt, telling V. C. that he had to make sure that the “recorder”
was off. After the assault, as V. C. went back to her car, the Appellant told her not to
tell anyone about what had happened.
5
Despite the warning, V. C. immediately talked to her friend, K. F., on the phone
and told him about the assault; she also called two other friends shortly thereafter. At
trial, her friends described V. C.’s demeanor during those phone calls as “totally
distraught” and “[h]ysterical[,]” and testified that she was crying and difficult to
understand. Although her friends told V. C. to call 911 and report the assault, V. C.
refused to do so, fearing that the Appellant or one of his friends would respond to the
call.
As V. C. was driving home after the assault, she left Harris County and entered
Pike County, where she saw the office of the Pike County Sheriff’s Office. V. C.
decided to stop there and report the assault, because the Appellant did not work for
Pike County. She told the Pike County police officers what had happened and showed
them the warning ticket the Appellant had given her during Traffic Stop 1. During the
interview, V. C. described the boxer shorts the Appellant was wearing during the
assault. The officers contacted the Harris County Sheriff’s Office, which sent an
investigator to the Pike County office to interview V. C.6 and the Pike County
6
The Harris County investigator testified at trial, an audio recording of the
investigator’s interview of V. C. was introduced into evidence, and portions of the
interview were played for the jury.
In addition, an agent with the Georgia Bureau of Investigation (“GBI”)
interviewed V. C. about the assault the next day. The GBI Agent testified at trial, an
6
officers. According to the Harris County investigator, V. C. “appeared shaken [and]
emotional” and “looked like she had been crying” when the investigator arrived to
interview her. Following the interviews, the investigator called the Harris County
Sheriff Mike Jolley and relayed the information she had obtained about the assault.
In the meantime, Sheriff Jolley called Neil Adams, the Chief Deputy of the
Harris County Sheriff’s Office (“Chief Adams”), who, in turn, advised other
department supervisors about the situation and instructed them to meet him at the
sheriff’s office. When the Appellant returned to the sheriff’s office at the end of his
shift that day, Chief Adams and the other supervisors met with him and told him
about V. C.’s allegations, and the Appellant “adamantly denied” that any sexual
encounter had taken place between him and V. C. While speaking with the Appellant,
Chief Adams received a phone call from the Harris County investigator who had
interviewed V. C., and the investigator reported that V. C. had described the
underwear the Appellant was wearing during the assault. When Chief Adams
informed the Appellant, the Appellant agreed to show one of the supervisors his
underwear, which matched V. C.’s description. At that point, the Appellant started to
audio recording of the agent’s interview of V. C. was introduced into evidence, and
portions of the interview were played for the jury.
7
cry and said, “it was consensual.” Chief Adams ended the interview and placed the
Appellant on administrative leave. The Appellant was also required to turn in his
“gun belt,” and the Appellant admitted at trial that, throughout his encounters with
V. C., he had a gun and a taser on his belt.7 The supervisors also manually
downloaded the recordings from the Appellant’s patrol car’s dash cam and watched
the recordings of Traffic Stops 1 and 2.
The next morning, the Appellant met with Sheriff Jolley and Chief Adams and
apologized for embarrassing the sheriff’s office. The Appellant gave them a two-
page, unsigned, unsworn, typed statement in which he admitted that V. C. had
performed oral sex on him the previous day, but he claimed that it was consensual and
was initiated by V. C.8 Given that the sexual contact described by the Appellant
7
The evidence showed that, at the time at issue, deputies with the Harris
County Sheriff’s Office typically carried a Glock .40 caliber pistol with extra
ammunition, a taser, and two sets of handcuffs on their gun belt.
8
During his testimony, Sheriff Jolley read the statement to the jury. In addition,
during the State’s cross-examination of the Appellant at trial, the prosecutor read the
statement the Appellant had written, line-by-line, and compared the statement and the
Appellant’s direct testimony to the dash cam recordings of the traffic stops, pointing
out the numerous inconsistencies between the recordings and the Appellant’s versions
of the events.
8
constituted a “serious violation” of the policies of the sheriff’s office, Sheriff Jolley
terminated the Appellant’s employment.
As part of the office’s investigation, Sheriff Jolley had his staff audit all of the
traffic stops the Appellant had conducted in the previous six months in order to find
out if other people had been involved in similar incidents with the Appellant. The
department sent letters to all of the people the Appellant had stopped during that time
period. In response to the letter, a woman, L. F., contacted the department and
reported that the Appellant had stopped her car on October 19, 2015, and then
detained her for 45 minutes.9 About 18 minutes after the stop began, the Appellant
turned off the body microphone he was wearing, and, about 11 minutes after that, the
Appellant turned off his patrol car’s dash cam recorder.10 L. F. testified that, during
the stop, the Appellant leaned into her car window while talking with her and, as she
showed him some pictures on her phone, he grabbed the phone. The Appellant then
showed L. F. a video on his own phone showing the Appellant having sex with a
woman; the Appellant told L. F. that the woman was someone he “sleeps with” and
9
According to Sheriff Jolley, the “typical length of a traffic stop” is four to five
minutes.
10
A dash cam recording of the first 29 minutes of the traffic stop was admitted
at trial and played for the jury.
9
was not his wife. Although L. F. had become frightened by this point in the traffic
stop, she did not believe she was free to leave until the Appellant released her.
The next afternoon, the Appellant went to L. F.’s home and knocked on her
door; L. F. testified that she had not invited the Appellant to her home. L. F. peeked
out the window, saw the Appellant, and did not answer the door because she was
scared. The Appellant left L. F.’s home, but returned about an hour later and, when
he again knocked on the door, L. F. did not answer it because she was “freaked out”
by the fact that the Appellant had returned. Instead of leaving immediately when L. F.
did not answer the door, the Appellant stood behind his patrol car, which was parked
in her driveway, and waited a while before leaving.11
After the media published a story about the Appellant’s assault of V. C., the
GBI Agent who was investigating the incident contacted and interviewed a woman,
C. T., who had posted an entry on Facebook describing a traffic stop conducted by
a Harris County deputy.12 At trial, C. T. testified that, on September 12, 2015, the
11
L. F. took photographs of the Appellant standing behind his patrol car, and
the photographs were admitted at trial and published to the jury.
12
An audio recording of the interview was admitted at trial, and portions of it
were played for the jury.
10
Appellant stopped her car as she was driving through Harris County.13 The traffic stop
lasted about 26 minutes, during which the Appellant and C. T. talked and flirted with
one another. Even though the Appellant handed C. T. a warning citation14 about 22
minutes into the stop, the Appellant continued to talk to C. T., and she did not feel
free to leave. The Appellant did not end the traffic stop and return to his patrol car
until C. T. told the Appellant that she was in a hurry because she was going to see her
grandmother, noting that her grandmother lived “off of Holland Road.”
C. T. went home briefly, then, as she was driving to her grandmother’s home,
she saw the Appellant’s patrol car coming toward her on Holland Road. After passing
C. T., the Appellant turned his patrol car around and followed C. T.’s car until she
pulled into her grandmother’s driveway. The Appellant parked at the end of the
driveway and stayed there for about ten minutes. According to C. T., she felt
“[e]xtremely uncomfortable[,]” “flustered,” “upset[,]” and “fearful” because the
Appellant had used information he had obtained during a traffic stop to find her.
13
A dash cam recording of the traffic stop was admitted at trial and played for
the jury.
14
Notably, at the bottom of C. T.’s warning citation, the Appellant wrote,
“Slow your ass down!”
11
Following the Appellant’s arrest and indictment for offenses committed against
the three victims, the case proceeded to trial, where a jury found the Appellant guilty
on two counts of sexual assault on a person in custody, based upon his improper
sexual contact with V. C.; four counts of violation of oath by a public officer, based
on his improper conduct during the traffic stops; one count of false imprisonment of
V. C.; and one count of tampering with evidence, based upon his act of shutting off
the dash cam recorder during Traffic Stop 2.15 The trial court sentenced the Appellant
to twelve years imprisonment, with eight to serve, plus a consecutive sentence of five
years on probation for one of the violation of oath convictions. This appeal followed.
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 under the standard of Jackson v. Virginia,16 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
15
The jury found the Appellant not guilty on charges of committing acts of
aggravated sodomy and sexual battery against V. C.; stalking L. F.; and stalking C. T.
16
443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
12
each fact necessary to make out the State’s case, we must uphold the
jury’s verdict.17
“The standard of Jackson v. Virginia[18] is met if the evidence is sufficient for any
rational trier of fact to find the defendant guilty beyond a reasonable doubt of the
crime charged.”19 With these guiding principles in mind, we turn now to the
Appellant’s specific claims of error.
1. The Appellant contends that the evidence was insufficient to support his
convictions for sexual assault on a person in custody, arguing that the evidence
showed that V. C. was not being “detained” by him or “in [his] custody” at the time
of the sexual assault. We disagree.
OCGA § 16-6-5.1 (b) (3) provides that
[a] person who has supervisory or disciplinary authority over another
individual commits sexual assault when that person[ is] an employee or
agent of a law enforcement agency and engages in sexual contact with
such other individual who the actor knew or should have known is being
detained by or is in the custody of any law enforcement agency[.]
17
Walker v. State, 329 Ga. App. 369, 370 (765 SE2d 599) (2014) (punctuation
and other footnote omitted).
18
443 U.S. at 319 (III) (B).
19
See Bautista v. State, 305 Ga. App. 210, 211 (1) (699 SE2d 392) (2010).
13
As the trial court instructed the jury at the end of the trial, for the purpose of this
statute, “[c]ustody means the state of being kept or guarded, and the state of being
detained or held under guard, especially by the police. Custody presupposes actual
imprisonment or detention by law enforcement such that the person is not free to go
about his or her normal activities.”20
(a) As an initial matter, OCGA § 16-6-5.1 (e) specifically provides that
“[c]onsent of the victim shall not be a defense to a prosecution under this Code
section.” Thus, although the Appellant insisted before and during trial that V. C. had
consented to the sexual conduct at issue,21 he could not rely on her alleged consent
20
See Palmer v. State, 260 Ga. 330, 331 (393 SE2d 251) (1990) (The Supreme
Court ruled that the term “custody,” as used in OCGA § 16-6-5.1, was similar in
context to how the term is used to determine if a person has escaped, and
“presupposes actual imprisonment or detention.”) (citation omitted); Krause v. State,
263 Ga. App. 488, 489-490 (2) (588 SE2d 239) (2003) (The trial court instructed the
jury that the word “‘custody’” meant being in a state of “‘being kept or guarded or the
state of being detained or held under guard.’” This Court ruled that there was nothing
vague about the definition and that it was sufficient for the jury to understand what
it meant to be in custody.).
Notably, the trial court’s jury instruction incorporated all of the language
requested by the Appellant and was consistent with defense counsel’s closing
arguments to the jury. Further, the jurors had a copy of the court’s instruction on
custody with them during their deliberations.
21
In contrast, V. C. repeatedly denied that she had consented to performing oral
sex on the Appellant, testifying that she only did so because he had forced her.
14
as a defense to the charges at issue in this case, i.e., that he violated OCGA § 16-6-5.1
(b) (3) by sexually assaulting V. C. while she was detained by him or in his custody.22
(b) In arguing that the evidence was insufficient to support his convictions
under OCGA § 16-6-5.1 (b) (3), the Appellant contends that the State failed to prove
that he “knew or should have known” that he was detaining V. C. or had her in his
custody at the time of the sexual conduct. In his brief, the Appellant admits that
Traffic Stop 2 began as a “detention” of V. C. because he had used his blue lights to
pull her over, but he claims that, shortly after he conducted the stop, he told V. C. that
he “just wanted to talk to her.”23 The Appellant argues that, because he stopped V. C.
for his own “personal reasons[,]” and not because she had violated the law, he “was
aware that [V. C.] was not being officially detained and was free to leave.” He also
contends that the evidence established that he turned off his blue lights when he
turned onto the side road, that V. C. “willingly” followed him down the road, and that
22
Instead, V. C.’s alleged consent was only a defense to the charges that the
Appellant committed aggravated sodomy and sexual battery. Notably, the jury found
the Appellant not guilty on those charges.
23
Although the Appellant claims that, at some point during Traffic Stop 2, he
told V. C. that she was “no longer being officially detained[,]” he has not cited to
evidence in the record to support that assertion, and we have found nothing in the trial
transcript or the exhibits to support it.
15
he did not park his patrol car in a manner that prevented her from driving away. The
Appellant argues that, as a result, the evidence was “clear” that V. C. was not being
detained by him or in his custody at the time of the sexual conduct, as required by the
statute, so his convictions must be reversed. These arguments lack merit.
The undisputed evidence at trial showed that, on the day of the assault, the
Appellant was driving a Harris County Sheriff’s Office patrol car; was on duty during
his assigned shift; was wearing his official uniform, which was equipped with a
microphone; and had a pistol, taser, and police radio attached to his belt. After the
Appellant parked his patrol car on the dirt road, he walked back to V. C.’s car and
convinced her to walk with him to the front of his patrol car. In addition, it is
undisputed that, while the Appellant and V. C. were engaged in sexual conduct, he
received a dispatch call on his police radio, which supported a finding that he was on
official duty at the time of the assault.
The Appellant also admitted at trial that, when he turned on his blue lights to
conduct Traffic Stop 2, V. C. was obligated to pull over and stop her car.24 The
24
See OCGA §§ 16-10-24 (a) (“[A] person who knowingly and willfully
obstructs or hinders any law enforcement officer[ ] in the lawful discharge of his or
her official duties shall be guilty of a misdemeanor.”); 40-6-395 (a) (“It shall be
unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her
vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or
16
Appellant testified that, at the time, he knew the stop was an “unlawful detention” of
V. C., because he had no legal reason to stop her, and that conducting the
unauthorized stop violated his oath of office.
Further, V. C. testified that, under the circumstances, she did not think she was
allowed to leave after the Appellant stopped her the second time or that she could
refuse to do what the Appellant instructed her to do, and she believed that she was
required to follow his patrol car down the side road, because he had activated his blue
lights and had told her to follow him.25 In fact, V. C. testified that the Appellant’s
conduct toward her was the only reason she followed his patrol car down the side
road. She also testified that, after the Appellant parked on the dirt road, she did not
want to get out of her car because she was afraid and nervous. According to V. C.,
police officer when given a visual or an audible signal to bring the vehicle to a
stop.”); see also Smith v. State, 290 Ga. 768, 774 (3) (723 SE2d 915) (2012) (“[I]t is
the act of fleeing from an individual police vehicle or police officer after being given
a proper visual or audible signal to stop from that individual police vehicle or officer[
] that forms the proper ‘unit of prosecution’ under OCGA § 40-6-395.”) (citations
omitted).
25
See Lebis v. State, 302 Ga. 750, 761-762 (III) (B), (C) (808 SE2d 724) (2017)
(The defendant’s intentional failure to comply with officers’ directions constituted
obstruction.)
17
however, the Appellant walked up to her car, grabbed her arm, and tried to pull her
out of her car, then held onto her wrist as he walked her to the front of his patrol car.
Based on this evidence, we conclude that the jury was authorized to find that
V. C. was being detained by the Appellant or kept in his custody to the extent that she
was not free to go about her normal activities.26
Moreover, during trial, the Appellant made the same arguments to the jury that
he now makes on appeal, i.e., that V. C. was not credible, her version of her encounter
with the Appellant was a complete lie, and the evidence demanded a finding that he
was not detaining V. C. and did not have her in custody at the time of the sexual
26
See Krause, 263 Ga. App. at 488-489 (1) (After a police officer responded
to a 911 domestic violence call, he threatened to arrest the victim if she did not have
sex with him. He then took her to a motel and had sex with her. At trial, the victim
testified that, even though the officer left her alone in the patrol car while he went
inside the motel office and rented a room, she was afraid to leave because he was a
police officer, he had a gun on his belt, and she was under his authority, explaining
that “‘you don’t just leave[ ]’” under these circumstances. This Court found that the
evidence was sufficient to support the officer’s conviction for sexually assaulting a
person in custody.); cf. Palmer, 260 Ga. at 330-331 (The Supreme Court held that the
victim, who was on probation and was being monitored by the defendant, her
probation officer, was free to go about her normal activities while on probation and,
thus, was not “in the custody of the law,” as was required by the version of OCGA
§ 16-6-5.1 that was in effect at that time. The Court also noted that the victim’s
probation order stated that the victim could be taken into custody if she violated the
conditions of her probation and, thus, specifically distinguished between her being
in “custody” versus on “probation.”).
18
conduct.27 The issue of the Appellant’s intent during the crime, however, was solely
for the jurors to decide after considering the credibility of the witnesses and resolving
the conflicts in the evidence.28 Based upon the jury’s guilty verdicts, the jurors
27
We note that, to the extent the Appellant relies on Jowers v. State, 225 Ga.
App. 809, 811 (2) (484 SE2d 803) (1997), for his argument that the evidence
compelled a finding that V. C. was not in his custody at the time of the assault, such
reliance is misplaced. In Jowers, the trial court granted a directed verdict on the
charge that the defendant had sexually assaulted a person in custody based upon its
conclusion that the evidence presented was insufficient to support a finding by the
jury, beyond a reasonable doubt, that the victim was in the defendant’s custody at the
time of the assault. Id. at 810. Because, under OCGA § 5-7-1 (a), the State was
precluded from appealing that ruling, it was not subject to appellate review by this
Court. See State v. Seignious, 197 Ga. App. 766, 767 (399 SE2d 559) (1990) (“A
directed verdict of acquittal is not appealable by the State when the defendant has
been put in jeopardy.”) (citation and punctuation omitted). Consequently, because this
Court’s opinion in Jowers did not consider the propriety of the trial court’s directed
verdict on the custody issue, Jowers does not constitute precedent for the ruling upon
which the Appellant relies. See State v. Walker, 295 Ga. 888, 893 (764 SE2d 804)
(2014) (Appellate court decisions “stand only for the points raised by the parties and
decided by the court. Questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.”) (citation and punctuation omitted).
28
See Cuzzort v. State, 307 Ga. App. 52, 54 (1) (703 SE2d 713) (2010)
(“[I]ntent is a question for the jury, which is authorized to consider all other
circumstances connected with the act at issue as well as the defendant’s words,
conduct and demeanor.”) (citation and punctuation omitted).
19
obviously found that the Appellant was not credible and rejected his version of the
events, as the jurors were authorized to do.29
Thus, after viewing the evidence in the light most favorable to the jury’s
verdict,30 we conclude that there was sufficient evidence for the jury to find, beyond
a reasonable doubt, that the Appellant was guilty of sexually assaulting a person in
custody.31 Those convictions are affirmed.
2. The Appellant contends that the evidence was insufficient to support his
convictions for violation of oath by a public officer, arguing that the evidence failed
to show that he had taken an oath “as prescribed by law,” as required by OCGA § 16-
10-1. We disagree.
OCGA § 16-10-1 provides that “[a]ny public officer who willfully and
intentionally violates the terms of his oath as prescribed by law shall, upon
conviction thereof, be punished by imprisonment for not less than one nor more than
29
See Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008) (“A jury
is authorized to believe or disbelieve all or any part of the testimony of witnesses, and
it serves as the arbiter of conflicts in the evidence before it.”) (citation and
punctuation omitted).
30
See Rankin, 278 Ga. at 705.
31
See Krause, 263 Ga. App. at 488-489 (1).
20
five years.”32 “[T]o prove a violation of this Code section, the State must present
evidence that the defendant violated the terms of the oath actually administered and
that those terms were from an oath ‘prescribed by law,’ that is, one that the legislature
required of a public officer before entering the duties of his or her office.”33
(a) OCGA § 45-3-7, entitled “Oaths of deputies,” provides as follows:
Before proceeding to act, all deputies shall take the same oaths as their
principals take and the oaths shall be filed and entered on the minutes of
the same office with the same endorsement thereon; but this Code
section shall not apply to any deputy who may be employed in particular
cases only. A deputy sheriff may take his oaths before the sheriff and the
oaths may be filed in and entered in the records of the sheriff’s office.34
At trial, Sheriff Jolley testified that, before the Appellant or any other deputy
sheriff in the Harris County Sheriff’s Office was allowed to take any actions in his or
her official capacity, he or she was administered the “Official Oath of a Deputy
32
(Emphasis supplied.)
33
Bradley v. State, 292 Ga. App. 737, 740 (2) (665 SE2d 428) (2008) (citation
and punctuation omitted).
34
(Emphasis supplied.)
21
Sheriff” (“the oath”).35 The State introduced into evidence a copy of the oath the
Appellant had taken, and Sheriff Jolley read the oath to the jury, as follows:
I, Thomas Pierson,[36] do swear that I will faithfully execute all writs,
warrants, precepts, and processes directed to me as deputy sheriff of this
county, or which are directed to all sheriffs of this State, or to any other
sheriff specially, I can lawfully execute, and true returns make, and in
all things well and truly, without malice or partiality, perform the duties
of the Office of Deputy Sheriff of Harris County, during my continuance
therein.
I do further solemnly swear or affirm that I am not the holder of any
public money due this State unaccounted for, that I am not the holder of
any office of trust under the Government of the United States (except
postmaster), nor of either of the several states, nor of any foreign state,
and that I am other wise qualified to hold said office, according to the
Constitution of the United States and laws of Georgia, and that I will
support the Constitutions of the United States and of this State.
SO HELP ME GOD!
35
See OCGA § 45-3-8 (“No officer or deputy required by law to take and file
the oaths prescribed in Code Section 45-3-1 shall enter upon the duties of his office
without first taking and filing the same in the proper office.”).
36
The Appellant’s name was hand-written on the copy of the oath.
22
The first paragraph of the oath is almost identical to the oath that sheriffs are
required to take, pursuant to OCGA § 15-16-4.37 Thus, the oath fulfilled the
requirement, under OCGA § 45-3-7, that the Appellant “take the same oath[ ] as [his]
principal[,]” i.e., the sheriff.38 Further, Sheriff Jolley testified that he personally
administered the oath to the Appellant, that the Appellant swore the oath, and that a
copy of the oath, with the Appellant’s name hand-written at the top, was filed in the
sheriff’s department, as required by OCGA § 45-3-7.
37
See OCGA § 15-16-4 (“Before entering on the duties of their office the
sheriffs shall take and subscribe, in addition to the oath required of all civil officers,
the following oath before the judge of the superior court or the judge of the probate
court: ‘I do swear that I will faithfully execute all writs, warrants, precepts, and
processes directed to me as sheriff of this county, or which are directed to all sheriffs
of this state, or to any other sheriff specially, which I can lawfully execute, and true
returns make, and in all things well and truly, without malice or partiality, perform
the duties of the office of sheriff of _____ County, during my continuance therein,
and take only my lawful fees. So help me God.’”).
38
See Jowers, 225 Ga. App. at 811 (2) (The “terms” of the oath that the
legislature “prescribed by law” for deputy sheriffs in OCGA § 45-3-7, are the same
“terms” of the oath that the legislature “prescribed by law” for sheriffs in OCGA §
15-16-4.).
23
Under these circumstances, we find that there was sufficient evidence to show
that the terms of the oath taken by the Appellant were “prescribed by law,” as
required by OCGA § 16-10-1.39
(b) The Appellant argues, however, that, even if the sheriff had administered
the oath to him at some point prior to the improper conduct at issue, the oath was
invalid because it was not “subscribed” by him, as required by OCGA § 45-3-3,
which provides that,
[w]hen not otherwise provided by law . . . , the oaths of office may be
taken before any officer authorized by law to administer an oath. Such
oaths shall be written and subscribed by the persons taking them and
39
See Bradley, 292 Ga. App. at 741 (2); Jowers, 225 Ga. App. at 811 (2); see
also Dimauro v. State, 341 Ga. App. 710, 720 (3) (b) (801 SE2d 558) (2017) (In
proving that the defendant violated his oath of office, the State presented an instructor
with the defendant’s police department, who testified that the defendant had been
administered the oath of office that was required by law.); Greene v. State, 257 Ga.
App. 837, 838-839 (2) (572 SE2d 382) (2002) (This Court affirmed the defendant’s
conviction for violation of oath by a public officer, even though the State did not
produce a copy of the oath that had been signed by the defendant, because the State
produced a copy of the oath that was signed by another officer, who testified that,
when he took the oath, the defendant was also present and took the same oath. In
addition, the defendant’s training officer testified that he would not have issued
equipment to the defendant if the defendant had not been sworn in. This Court
concluded that the evidence presented was sufficient for a jury to find that the
defendant took an oath that contained the same terms as averred in the indictment.).
24
accompanied by the certificate of such officer, which shall specify the
day and year taken.40
The Appellant argues that, absent a showing that he “subscribed” to the oath, the
State failed to show that he took the oath “as prescribed by law[,]” as required to
constitute a violation of his oath of office under OCGA § 16-10-1. This argument
lacks merit.
Pretermitting whether OCGA § 45-3-3 applies in this case, given that its
requirements only apply when there is no other law with conflicting requirements, the
statute dictates the manner in which an oath may be taken and how the administration
of the oath is to be officially recorded, not the terms of the oath itself.
In contrast, a plain reading of OCGA § 16-10-1 shows that the phrase “the
terms of [the] oath as prescribed by law” refers specifically to the terms of the oath
itself, not the manner in which the oath had to be administered or memorialized.41
And, as we found in subdivision (a), supra, the State proved that the terms of the oath
40
(Emphasis supplied.)
41
See Jowers, 225 Ga. App. at 811 (2) (This Court held that OCGA § 16-10-1
was “plain, unambiguous, and on its face does not lead to any absurd or impracticable
consequences; such a statute is simply construed by the court according to its terms
and no further inquiry as to its interpretation is conducted.”) (citations omitted).
25
taken by the Appellant were “the terms of [the] oath as prescribed by law,” i.e., the
terms required and codified by the Georgia Legislature for deputy sheriffs in OCGA
§§ 15-16-4 and 45-3-7.42
It follows that this argument presents no reversible error.
(c) Finally, we conclude that the State presented sufficient evidence to prove
that the Appellant’s improper conduct violated the terms of his oath.43
In four separate counts, the indictment charged the Appellant with violating
OCGA § 16-10-1, alleging that he, “being a public officer with Harris County
Sheriff’s Office, did willfully and intentionally violate the terms of his oath as
prescribed by law in that he did swear to ‘in all things well and truly, without malice
or partiality, perform the duties of the Office of Deputy Sheriff of Harris County[.]’”
42
See id.; see also Bradley, 292 Ga. App. at 740-741 (2) (In affirming the
defendant’s conviction for violating the oath of a public officer, this Court ruled that
the State had proven that the oath taken by the defendant, a prison correctional
officer, contained the same terms as those the Georgia Legislature “prescribed by law[
]” for such officers in OCGA § 42-5-31.).
43
See Bradley, 292 Ga. App. at 740 (2).
26
Each count then specifically described the Appellant’s improper conduct that violated
his oath of office.44
As shown in subdivision (a), supra, the oath required that the Appellant “well
and truly, without malice or partiality, perform the duties of the Office of Deputy
Sheriff of Harris County[.]” At trial, the State presented the sheriff’s office’s policy
manuals that outlined the required conduct and duties of the office’s employees,
including deputies, as well as evidence showing that the Appellant was “familiar with
[the] policies and procedures and was given a copy of the policy,” and that sections
of the policy had been reviewed daily during the Appellant’s eight-week training
period.
According to Sheriff Jolley, the Appellant violated the office’s policies, and,
thus, his oath, when the Appellant had sexual contact with V. C. during Traffic Stop
2, and when the Appellant engaged in sexually inappropriate conduct with L. F. and
44
Specifically, Count 7 alleged that the Appellant “unlawfully detain[ed]
[V. C.]”; Count 8 alleged that he “engage[d] in sexual contact with [V. C.]”; Count
10 alleged that he “engage[d] in sexually-inappropriate behavior during a traffic stop
of [L. F.] and did then appear at the residence of said person a day after conducting
said traffic stop”; and Count 12 alleged that he “engage[d] in sexually-inappropriate
behavior during a traffic stop of [C. T.] and did then appear at the residence of
[C. T.’s grandmother] after [C. T.] advised during said traffic stop that she was going
to her grandmother’s house[.]”
27
C. T. during their traffic stops. Further, the Appellant admitted during his testimony
that he failed to “well and truly perform[ his] duties as a deputy sheriff[,]” as required
by his oath, when he used sexually inappropriate language and propositioned V. C.
during Traffic Stop 1; when he conducted Traffic Stop 2 with no legal reason to stop
or detain V. C.; when he engaged in sexual conduct with V. C.; when he engaged in
sexually inappropriate behavior with L. F. and C. T.; and when he turned off his body
microphone and dash cam recorder during the traffic stops.45 In fact, during closing
arguments, the Appellant’s defense counsel challenged only the validity of the oath
taken by the Appellant, while admitting that the Appellant “clearly . . . violate[d] the
terms of his oath, . . . no one’s disputing that one bit.”
This evidence was sufficient to support the jury’s finding that the Appellant
was guilty beyond a reasonable doubt of violating OCGA § 16-10-1, as charged in
the indictment.46
45
The Appellant also testified that he was “ashamed” of his actions; he
described his actions as “unprofessional[,]” and “disgusting[ ]”; and he admitted that
he had betrayed the sheriff’s department, his family, and the citizens of Harris
County.
46
See Reynolds v. State, 334 Ga. App. 496, 497, 498-501 (1) (779 SE2d 712)
(2015) (The defendant, a police officer, took an oath in which he swore that he would
“faithfully perform” his duties and “faithfully observe all the rules, orders, and
regulations” of the police department. The chief instructor of the police academy
28
Judgment affirmed. Barnes, P. J., and McMillian, J., concur.
where the defendant was trained, and who administered the oath to the defendant,
testified that the defendant’s conduct violated the department’s rules, orders, and
regulations, and the defendant admitted that the conduct of which he was accused
constituted a violation of his oath of office. This Court ruled that the evidence was
sufficient to sustain his conviction for violating OCGA § 16-10-1.) (punctuation
omitted); Bradley, 292 Ga. App. at 740 (2) (The evidence was sufficient where the
prison warden testified that bringing cocaine into the prison violated the terms of the
oath of office taken by the defendant, a prison correctional officer.).
29