Surge E. Maynard v. State ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
April 30, 2020
In the Court of Appeals of Georgia
A20A0460. MAYNARD v. THE STATE.
MCFADDEN, Chief Judge.
In January 2019, Surge Eugene Maynard sent a series of threatening emails to
the attorney who represented the mother of his child in a child support dispute. He
then went to the attorney’s house, entered an attached garage, and cursed at the
attorney through an internal door as the attorney’s family hid and the attorney called
911. For these acts, a jury found Maynard guilty of the misdemeanor offenses of
making harassing communications (OCGA § 16-11-39.1 (a)), stalking (OCGA § 16-
5-90 (a)), and criminal trespass (OCGA § 16-7-21 (b)). On appeal, Maynard
challenges the sufficiency of the evidence, but the trial evidence authorized his
convictions for these offenses. He challenges certain evidentiary rulings, but the trial
court did not abuse her discretion in those rulings. And he challenges a jury charge
that the trial court gave in response to a question from the jury, but the trial court did
not abuse her discretion in giving that charge. So we affirm.
1. Sufficiency of the evidence.
There is no merit in Maynard’s claim that there was insufficient evidence to
support his convictions. In considering this claim,
we view the evidence in the light most favorable to support the jury’s
verdict, and the defendant no longer enjoys a presumption of innocence.
We do not weigh the evidence or judge the credibility of the witnesses,
but determine only whether the evidence authorized the jury to find the
defendant guilty of the crimes beyond a reasonable doubt in accordance
with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt
2781, 61 LE2d 560) (1979).
Rowland v. State, 349 Ga. App. 650 (1) (825 SE2d 231) (2019) (citation omitted).
So viewed, the trial evidence showed that attorney Jon Mills represented the
mother of Maynard’s child in a child support dispute. In early January 2019, Maynard
sent Mills a series of emails that Mills construed as threatening to himself and his
family. Contained in or attached to the emails, among other things, were pictures of
Mills’s wife and children that Maynard apparently obtained online; allegations that
Mills was under the influence of an evil spirit; vehement demands that Mills and his
family move away from the area; suggestions that, if Mills did not keep away from
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Maynard, Mills might “tempt the fate of his existence”; and the following statement:
“Remember Jon, you’ve been suggested to leave and I don’t see a for sale sign out
side of your house yet. I’ve included your newly discovered email so you’ll get the
message. I’ll mail it to you or personally post it on your door if I must but you’re
leaving. Goodbye Jon.” (Emphasis in original.)
Mills told Maynard not to send him emails, that he viewed them to be
harassing, and that if Maynard did not stop Mills would seek a temporary protective
order against him. Mills also told Maynard that any further contact should only
concern legal matters and should only be made through the United States mail. But
Maynard did not stop sending Mills emails, and in later emails Maynard
acknowledged that Mills found the emails harassing, making statements such as “Due
to expressed concerns of harassment and some being off the clock, the Court
adjourned for the weekend and is now hereby Continued”; and “Continuation of last
week’s correspondence on harassment.”
On January 22, 2019, Mills obtained an ex parte temporary restraining order
against Maynard. He also had Maynard served with a contempt petition in the
ongoing child support dispute.
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On the evening of January 27, 2019, Maynard went to Mills’s house in Oconee
County, entered the attached garage, and knocked repeatedly on the door connecting
the garage to the house. Maynard spoke through the door, telling Mills not to be
scared, saying he had something for Mills, accusing Mills of taking something away
from him, and calling Mills a “motherfucker” and a “coward.” Given their previous
interactions, Mills thought Maynard was there for “revenge” in connection with the
child support case and he was scared for himself and his family. He told his family
to hide, retrieved a personal handgun, called 911, and stepped outside to see what was
happening and to try to diffuse the situation. Maynard left the garage, put the
contempt papers that had been served on him on the windshield of Mills’s vehicle,
and made a few more comments to Mills before pulling out of the driveway,
squealing his vehicle’s tires in the process. The next day Maynard emailed to Mills
a video-recording Maynard made of this encounter.
This evidence authorized the jury to find that Maynard had committed the
crime of making harassing communications, which occurs, among other ways, when
a person “[c]ontacts another person repeatedly via . . . email . . . for the purpose of
harassing, molesting, threatening, or intimidating such person or the family of such
person[.]” OCGA § 16-11-39.1 (a) (1). Maynard repeatedly emailed Mills, despite
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Mills’s insistence that he stop and despite acknowledging that Mills found the emails
harassing. And in those emails, Maynard made comments or attached photographs or
documents that implied he might harm Mills or his family. This evidence was
sufficient to sustain his conviction under OCGA § 16-11-39.1 (a) (1). See Kilby v.
State, 289 Ga. App. 457, 459 (1) (657 SE2d 567) (2008). Contrary to Maynard’s
argument, the fact that the emails were not sent on the specific date set out in the
state’s accusation for this offense (January 27, 2019) does not change this result,
because the accusation did not allege that the date was material. See State v. Layman,
279 Ga. 340, 341 (613 SE2d 639) (2005) (“the [s]tate is not restricted at trial to
proving that an offense occurred on the date alleged in the indictment when the
indictment does not specifically allege that the date of the offense is material”).
This evidence also authorized the jury to find that Maynard had committed the
crime of stalking, which occurs, among other ways, when a person
contacts another person at or about a place or places without the consent
of the other person for the purpose of harassing and intimidating the
other person. . . . [T]he term “harassing and intimidating” means a
knowing and willful course of conduct directed at a specific person
which causes emotional distress by placing such person in reasonable
fear for such person’s safety or the safety of a member of his or her
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immediate family, by establishing a pattern of harassing and
intimidating behavior, and which serves no legitimate purpose.
OCGA § 16-5-90 (a) (1). (The state did not charge Maynard with the offense of
aggravated stalking by contacting Mills in violation of the terms of the temporary
protective order. See OCGA § 16-5-91 (a). )
The series of emails that preceded Maynard’s January 27, 2019 appearance at
Mills’s house established the required pattern of behavior. See Austin v. State, 335
Ga. App. 521, 524 (1) (782 SE2d 308) (2016) (pattern of behavior “may include the
prior history between the parties”). And although Maynard challenges the sufficiency
of the evidence showing that he had the necessary intent to be found guilty of
stalking, given the evidence of his “persistent, disturbing actions, and his refusal to
leave [Mills] alone, a rational jury could have found beyond a reasonable doubt that
[his] acts were intended to harass and intimidate and placed [Mills] in fear for [his
and his family’s] safety.” Hennessey v. State, 282 Ga. App. 857, 860 (640 SE2d 362)
(2006).
Finally, this evidence authorized the jury to find Maynard had committed the
offense of criminal trespass, which occurs, among other ways, when a person
“knowingly and without authority . . . [e]nters upon the land or premises of another
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person . . . for an unlawful purpose[.]” OCGA § 16-7-21 (b) (1). Maynard argues that
there was no evidence that he went onto Mills’s property and into his garage for an
unlawful purpose, but, as discussed above, the evidence authorized the jury to find
that he went there to stalk Mills in violation of OCGA § 16-5-90 (a) (1).
Maynard also argues that the state failed to prove venue or to identify him at
trial. These claims are meritless. Mills identified Maynard at trial, and the jury could
find from Mills’s testimony that his house was located in Oconee County, where the
case was prosecuted.
2. Evidentiary rulings.
Maynard argues that the trial court erred in allowing the state to present certain
evidence in violation of OCGA § 24-4-403, which permits a trial court to exclude
relevant evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” But
“[d]ecisions regarding relevance are committed to the sound discretion of the trial
court, and the exclusion of relevant evidence under Rule 403 is an extraordinary
remedy that should be used only sparingly.” Venturino v. State, 306 Ga. 391, 395 (2)
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(b) (830 SE2d 110) (2019) (citations and punctuation omitted). Maynard has not
shown that the trial court abused her discretion in declining to use that remedy.
Maynard argues that the trial court erred in allowing the state to present
testimony that when Mills obtained the temporary protective order for himself, he
also obtained a temporary protective order for his client, the mother of Maynard’s
child. The trial court permitted this testimony “to provide context for previous
interactions between [Mills] and [Maynard] and to explain the dynamic between
them.” The testimony on this point was very brief, amounting to no more than a mere
mention in passing, the order itself was not admitted as an exhibit, and Maynard
offers no persuasive argument in his appellate brief for why the trial court’s decision
not to exclude the testimony under Rule 403 was an abuse of discretion.
Maynard also argues that the trial court erred in admitting as exhibits copies
of the series of emails that he sent to Mills in January 2019. He summarily argues that
these exhibits were duplicative and repetitive, included messages written by third
parties, and contained information that the trial court had excluded in an earlier ruling
on a motion in limine. Maynard does not explain how any ruling on a motion in
limine was violated by the contents of the emails, and the nature of this alleged
violation is not apparent from the record. Our review of these exhibits reveals nothing
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that would have required the trial court to use the extraordinary remedy of Rule 403
to exclude what is clearly highly relevant evidence.
3. Jury charge.
Maynard argues that the trial court erred in a charge she gave in answer to a
question from the jury during deliberations. The jury asked the trial court whether
“the harassing communication charge appl[ied] only to the date of Jan[uary] 27,” the
date alleged in the accusation. Maynard’s counsel initially argued against a proposed
charge in response to this question and the trial court modified the proposed charge
in a way that addressed some but not all of counsel’s points, ultimately instructing the
jury as follows:
I charge you that the dates alleged in this accusation are not material
elements of the charges contained therein. And where the date alleged
in the accusation is not a material element of the offense, the state must
prove that the offense occurred as [of] any date within the statute of
limitations. I further charge you that the statute of limitations, with
respect to all counts in this accusation, is two years.
Counsel made no further objection.
Assuming arguendo that Maynard sufficiently objected to the charge, we find
no abuse of discretion. See Barnes v. State, 305 Ga. 18, 23 (3) (823 SE2d 302) (2019)
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(generally “the need, breadth, and formation of additional jury instructions are left to
the sound discretion of the trial court”) (citations and punctuation omitted). The
charge given by the trial court in response to the jury’s question was a “correct
statement[ ] of the law and, as a whole, would not mislead a jury of ordinary
intelligence.” Camacho v. State, 342 Ga. App. 637, 641 (1) (a) (804 SE2d 660)
(2017) (citation and punctuation omitted). See OCGA § 17-3-1 (e) (“Prosecution for
misdemeanors shall be commenced within two years after the commission of the
crime.”); Ledesma v. State, 251 Ga. 885, 886 (1) (a) (311 SE2d 427) (1984) (where
indictment does not allege that dates of offense were material, state must show
offense occurred during statutory period of limitations). This charge was not, as
Maynard contends, a comment by the trial court on Maynard’s guilt in violation of
OCGA § 17-8-57.
Judgment affirmed. Doyle, P. J., and Hodges, J., concur.
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