Johns vs. State (2013) – Georgia Court of Appeals
On March 23, 2010, Brian Louis Johns, Jr. got into an argument with his live-in girlfriend in his girlfriend’s apartment and damaged some of her clothes. She called the police. Johns left, and when the police showed up at his girlfriend’s apartment, she told them that Johns had been drinking alcohol. A different officer pulled Johns over and arrested him for DUI less safe. Johns bonded out and on April 15, 2010, he was arrested for criminal trespassing (family violence act) for the incident that occurred on March 23. Johns pleaded guilty to criminal trespassing but filed a motion in aufrois convict – double jeopardy – regarding the prosecution of his DUI less safe. The trial court denied his motion and Johns appealed. Unfortunately, Johns could not provide a record of the initial motion hearing because no record was kept. Since Johns “was required ‘to show error by the record,’” Zellars v. State (2012), and didn’t, technically the Court must assume that the judgment by the trial court was correct. Regardless, the Court considered the facts of the case as stated in Johns’ appeal and affirmed the trial court’s judgment again, contending that the charges of criminal trespassing and DUI less safe did not occur as a result of the same conduct.
This appeal should serve as a fair warning for why there should always be a court reporter present at any and every court hearing. The only facts of the case available to the Court were those provided by Johns, and although the Court did not say if Johns enumerated any errors beyond the excerpt they provided, such claims would have to be examined against the record regardless. And depending on the record, the appeal could have had merit.
The Court’s opinion hinges on their determination that the offenses did not span from the same conduct. One way in which the Court determines if separate offenses arose from the same action is if it would be necessary to present evidence of one crime to prove the other, State v. Stewart (2012). Since there is no official record of the initial motion hearing, there is no testimony to question, but that doesn’t mean there aren’t implicit arguments against that could have shaped the Court’s determination. For one, was there a reason the police pulled Johns over other than the fact that his girlfriend, within the scope of the original offense, said he had been drinking and drove away? If not, it could be argued that the offenses arose from the same string of conduct. For a similar reason, Johns may not be convicted of DUI less safe, maybe not. Of course, if there was a record of his initial motion hearing he may have been able to avoid the risk of further prosecution, maybe not. Nevertheless, a word to the wise: always have a court reporter present.