☢ test - Í

Keaton v. State, 311 Ga.App. 14, 714 S.E.2d 693 (July 14, 2011). Physical precedent only : proof of aggravated stalking requires proof of an order or other described instrument “ in effect prohibiting the behavior described in [OCGA § 16-5-91(a)],” that is, that the defendant “follows, places under surveillance, or 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.” Interlocutory injunction here failed to do that; it did “not enjoin Keaton from having contact with the victim, but enjoined him from going to the marital residence except to retrieve or return the children for visitation.” Defendant here clearly violated the injunction by going to the residence, attacking and raping his estranged wife; but the violation of the injunction was not an act of stalking. “This order keeps Keaton away from a place, not a person, but Georgia's stalking laws were drafted to protect people not places. … We cannot say that an order that limits Keaton's presence at the marital home, but otherwise allows unfettered contact with the victim, ‘in effect’ prohibits him from engaging in the behavior prohibited by the statute.” Conviction thus reversed. Three judges concur in judgment only, disagreeing with the majority’s grammatical construction of the code section, but agreeing that aggravated stalking “requires the accused to have violated an order or injunction prohibiting stalking. ” Blackwell dissents , would find that the interlocutory injunction ordering defendant “to keep away from the home of his estranged wife” was sufficient under the aggravated stalking statute, and arguing that the “in effect prohibiting the behavior” language in the code section applies only to a “condition of pretrial release, condition of probation or condition of parole,” not to the other types of order listed. Thus, Blackwell argues, a person who violates a restraining order or injunction, and thereby commits a stalking offense, could be charged with aggravated stalking, even if the restraining order or injunction does not specifically prohibit “stalking.” Hervey v. State, 308 Ga.App. 290, 707 S.E.2d 189 (March 8, 2011). Conviction for attempted aggravated stalking was supported by evidence showing “a pattern of harassing and intimidating behavior,” where evidence of a violation of protective order was accompanied by testimony of victim “that ‘many times’ Hervey threatened to take the children to Panama so she would never see them again.” “Ms. Hervey's testimony about the repeated threats, coupled with the violation of the protective order, was sufficient evidence for the jury to find that Hervey's behavior was harassing and intimidating. See Daker v. Williams, 279 Ga. 782, 785 (621 S.E.2d 449) (2005) (‘ [T]wo related instances of stalking behavior ... evinced a pattern of prohibited behavior criminalized by the [stalking] statutes’) (emphasis supplied); Davidson v. State, 295 Ga.App. 702 (673 S.E.2d 91) (2009) (defendant's telephone call to victim in violation of probation condition prohibiting any contact coupled with his history of threats and actions that pre-dated the probation condition showed harassing and intimidating behavior sufficient to support aggravated stalking conviction).” Accord, Brooks v. State , 313 Ga.App. 789, 723 S.E.2d 29 (January 27, 2012). Louisyr v. State, 307 Ga.App. 724, 706 S.E.2d 114 (February 4, 2011). 1. Conviction for two counts of aggravated stalking affirmed; as explained in Burke (June 28, 2010), below, “to prove an act was done for the purpose of harassing and intimidating, the State must show it was part of a ‘pattern of harassing and intimidating behavior.’ 287 Ga. at 379. In light of this requirement, and as the Supreme Court explained in Burke, ‘a single violation of a protective order, by itself, does not amount to aggravated stalking.’ Id. at 378, 676 S.E.2d 766.” Contrary to defendant’s argument, however, “ nothing in that opinion suggests that multiple violations of a protective order are required. In determining whether a defendant has exhibited such a pattern of behavior, the jury can consider a number of factors, including the prior history between the parties, Thomas v. State, 276 Ga.App. 79, 80(1), 622 S.E.2d 421 (2005); Johnson v. State, 260 Ga.App. 413, 414-417(1), 579 S.E.2d 809 (2003), the defendant's surreptitious conduct, as well as his overtly confrontational acts, Owen v. Watts, 307 Ga.App. 493(2), 705 S.E.2d 852 (December 17, 2010), and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties. Harvill v. State, 296 Ga.App. 453, 456(1)(a), 674 S.E.2d 659 (2009).” Accord, Farley v. State , 314 Ga.App. 660, 725 S.E.2d 794 (March 9, 2012); Crumity v. State , 321 Ga.App. 768, 743 S.E.2d 455 (May 16, 2013); Slaughter v. State , 327 Ga.App. 593, 760 S.E.2d 609 (June 17, 2014). 2. Two convictions – one based on following victim to hotel, the other for contacting her there – didn’t merge. Bowen v. State, 304 Ga.App. 819, 697 S.E.2d 898 (July 6, 2010). Defendant’s conviction for aggravated stalking affirmed. 1. “Although Bowen argues that there was no evidence that contact occurred since J.T. had not read the August letter at issue, his contention is without merit. Bowen's contact with the victim occurred at the point when the letter was mailed and delivered to J.T.'s residence. See, e.g., Carlisle v. State, 273 Ga.App. 567, 571(1) (615 S.E.2d 543) (2005), reversed on other grounds at 280 Ga. 770 (631 S.E.2d 347) (2006) (holding that the defendant's contact with the victim had already occurred at the point that the victim received notice of the defendant's letter). J.T. testified that the letter was retrieved from the mailbox and that she was aware that it had been sent to her from Bowen. While it is true that J.T. was not allowed to read the letter, the letter was read by her mother, who discussed its contents with J.T.” 2. Venue