Donald Orr v. State

• Court: Court of Appeals of Georgia
• Decided: October 18, 2012
• Docket: A12A0840
• Status: Published

Opinion

FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and DILLARD, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

October 18, 2012

In the Court of Appeals of Georgia A12A0840. ORR v. THE STATE.

PHIPPS, Presiding Judge.

Donald Todd Orr was convicted in May 2011 of two counts of reckless conduct

and given two 12-month sentences to be served on probation, consecutively. Several

months later, the state filed a petition to revoke Orr’s probation, alleging that Orr had

violated two conditions of probation in that he had: (i) committed a new criminal

offense, terroristic threat; and (ii) failed to timely pay fines, resulting in $38.00 in

arrears. After a hearing on the petition, the trial court entered an order finding that Orr

had violated both conditions, revoking the balance of his probation, imposing upon

Orr confinement, and providing further: “remit the case allowing probation to FIFA

the balance.” In this appeal, Orr challenges the sufficiency of the evidence and contests various other aspects of the revocation order. For reasons that follow, we

vacate the revocation order and remand the case with direction.

1. Orr contends that the trial court erred by revoking his probation based (in

part) upon its finding that he committed the offense of terroristic threat; Orr

challenges specifically the sufficiency of the evidence. This contention is without

merit.

“A court may not revoke any part of any probated or suspended sentence . . .

unless the evidence produced at the revocation hearing establishes by a

preponderance of the evidence the violation or violations alleged.”1 “This court will

not interfere with a revocation unless there has been a manifest abuse of discretion

on the part of the trial court.”2

“Pursuant to OCGA § 16-11-37 [(a)], a person makes a terroristic threat ‘when

he or she threatens to commit any crime of violence . . . with the purpose of

terrorizing another. . . .’” 3 The state sought to show that Orr had committed the

1 OCGA § 42-8-34.1 (b). 2 Scott v. State, 305 Ga. App. 596 (699 SE2d 894) (2010) (citation, punctuation, and footnote omitted). 3 Layne v. State, 313 Ga. App. 608, 610-611 (1) (722 SE2d 351) (2012) (quoting OCGA § 16-11-37 (a)) (footnote omitted).

2 offense of terroristic threat against his wife during a telephone call between them.

Since about January 2011, Orr was no longer living in the residence he had shared

with his wife of 24 years. And by July 2011, Orr’s wife had learned of Orr’s new

girlfriend. Orr’s wife terminated service on Orr’s cellphone, deactivated his bank

card, and locked him out of a Facebook account. Upset about these actions, Orr made

several telephone calls to his wife during the last week of July. The telephone call

giving rise to the instant case occurred at about 11:15 p.m. on July 30, 2011. The state

presented the testimony of Orr’s wife and family members who gave the following

accounts.

Orr’s wife testified that she was at home when Orr called her. Also at the

residence were their two adult and one teenaged daughters, one daughter’s husband,

Orr’s brother, and that brother’s wife. They were all seated around the kitchen table.

During the telephone call, Orr’s wife testified, Orr was “ranting and raving,” upset

because of the Facebook account. She hung up, and he immediately called her back,

again “ranting and raving” about Facebook. She told him that she should have

divorced him a long time ago and that, if she had, their daughter would still have her

arm. (Orr’s wife explained at the revocation hearing that, during the prior Christmas

holiday, Orr discharged a firearm and accidently shot their daughter’s arm, resulting

3 in its amputation.) Orr’s wife testified: “And then in the conversation he says,

‘Instead of – at Christmas I should have not killed myself. I should have blown your

fucking head off.’ And then he makes a comment, ‘I can come home.’” Orr’s wife

continued: “[A]fter he said he would blow my fucking head off, he said, ‘I can come

home tonight. You know that? Do you know that?’ And I said, ‘Yes, Todd, I know

that.’” Throughout that telephone call, Orr had been screaming. According to Orr’s

wife, “when he said, ‘Do I need to come home,’ that meant that he could have came

home.’” Orr’s wife hung up again. Petrified, and believing that she and her family

were at risk, she summoned police. After the responding officer left the house, the

family left, too. The next day, Orr’s wife moved out of the residence.

Several of the family members who were seated around the table had overheard

Orr, clearly. Orr’s brother gave the following account. Orr was complaining and

fussing about being locked out of his Facebook account. Orr’s wife confronted Orr

about his girlfriend, then hung up. Orr called right back, and their argument resumed.

Orr’s brother recounted that eventually, “[Orr] said something about getting a

divorce. And she said, ‘Yeah. I should have divorced you a long time ago and [their

daughter] would still have her arm.’” Orr’s brother testified that Orr then accused his

wife of constantly hitting him below the belt regarding that incident, then Orr said,

4 “You know at Christmas I should have blowed your head off – your F-ing off instead

of trying to shoot myself.” Orr told his wife, “I’m coming home [tomorrow] night to

my house.” But then Orr added, “Do I need to come home tonight? . . . Do you

believe me?” And Orr’s wife replied, “Yes, Todd.” Orr’s wife hung up, looked at

Orr’s brother, and asked him, “What do I do now?” Orr’s brother testified that he

looked around the room: one of the daughters was “squalling, scared to death,” and

the other two also were noticeably upset. Orr’s brother advised Orr’s wife to do

whatever was necessary to protect her family. She summoned the police, and after an

officer responded to the scene and took reports, Orr’s wife and family members

followed Orr’s brother and his wife back to their (the latter couple’s) residence for the

night.

Orr’s adult daughter who had lost her arm also testified about the night of July

30. She described her father yelling throughout the phone exchanges and said that she

could hear his words plainly. Her mother hung up after the Facebook rant, and Orr

called again. The daughter recalled that Orr brought up the subject of divorce, and her

mother responded that, had she divorced him a long time ago, she would still have her

arm. Orr retorted that his wife had hit him below the belt and that, during last

Christmas, instead of trying to kill himself, he should have blown her fucking head

5 off. The daughter recalled that Orr next said, “Do you believe me? Do you not believe

me? I can come home tonight.” She recalled also that her father had said to her

mother that that was his house. Orr’s daughter testified, “I was upset at the fact that

he said he was going to blow my mother’s head off. He made it sound very real

because he said he was coming home tonight.” When her mother hung up, the police

were summoned.

The state called the sergeant of the sheriff’s office who had interviewed Orr on

August 2 at the sheriff’s office. The sergeant testified that Orr admitted having had

a conversation with his wife about being locked out of his Facebook account, and he

admitted that he had told his wife that he was coming back to the residence because

it was his home, too. But Orr denied, at least initially, making any comments about

wanting to harm her. However, toward the end of the interview, Orr stated that, if he

had made any such statement to his wife, he did not remember doing so.

Orr did not testify, but called several witnesses, including the law enforcement

officer who was dispatched to Orr’s wife’s residence, Orr’s girlfriend, and Orr’s

girlfriend’s daughter. The responding officer testified about the statements made at

the scene by Orr’s wife and family members.

6 Orr’s girlfriend testified that she was in Orr’s presence at the time he placed the

telephone call at issue. She recounted that, after asking about his Facebook account,

Orr said that he had decided to move back into the home, and that if his family did not

want to live there with him, they could move out. She described that, during the

telephone call, Orr did not raise his voice and did not threaten to shoot anyone.

Orr’s girlfriend’s daughter testified that she, too, was in Orr’s presence that

evening. She overheard Orr ask someone on the telephone why he had been locked

out of his Facebook account. She overheard him tell that person that he could move

back if he wanted to. She testified that Orr never yelled and never said anything about

blowing anyone’s head off or shooting anyone.

On appeal, Orr claims that the state’s case contained weaknesses and he cites

evidentiary conflicts. In particular, Orr points out that the state adduced no recording

of the telephone exchange. Orr also cites that the responding officer testified that

family members reported at the scene that Orr’s wife had set her telephone to the

“speaker phone” option, but at trial, Orr’s wife testified that she did not have that

option set. Additionally, Orr argues that the state failed to show that he threatened to

commit any crime of violence and failed to show that he intended to terrorize his

wife. He asserts that the words he uttered revealed merely his wish that it had been

7 his wife, instead of their daughter, who was shot; that there was no intended

connection between that uttered wish and his statements about coming to his wife’s

residence; and that the entire telephone episodes amounted only to typical mean-

spirited banter between spouses contemplating divorce.

Concerning Orr’s claims of evidentiary weaknesses and conflicts, it is well

settled that “any conflicts constitute issues of credibility that must be resolved by the

trial court, not this court. It was the duty of the factfinder, here the superior court, to

weigh the evidence, determine the credibility of witnesses, and decide whether to

accept or reject evidence introduced.”4 While some contradictory evidence was

presented regarding Orr’s statements and voice volume, the trial court was authorized

to reject the testimony of Orr’s witnesses, in favor of the testimony given by the

state’s witnesses.5 The accounts of Orr’s wife and family members – including Orr’s

daughter’s testimony that “[Orr] said he was going to blow my mother’s head off. He

made it sound very real because he said he was coming home tonight” – authorized

4 Gaddis v. State, 310 Ga. App. 189, 190 (1) (712 SE2d 599) (2011) (citations and punctuation omitted). 5 See Cannon v. State, 260 Ga. App. 15, 16 (579 SE2d 60) (2003) (trial court, as factfinder at probation revocation hearing, was authorized to reject testimony of defendant’s witnesses, in favor of state’s evidence).

8 the trial court to find that Orr communicated to his wife a threat to commit a crime of

violence against her.6

Moreover, despite Orr’s characterization of his utterances as mere banter and

Orr’s assertion that his statement about shooting his wife was not related to his

statements about coming to her residence that evening, the issue of whether Orr

intended to terrorize his wife was a question of fact for the factfinder.7 As this court

has held:

[T]he determination of whether a defendant has made a terroristic threat focuses solely on the conduct of the accused and [the crime] is completed when the threat is communicated to the victim with the intent

6 See Clement v. State, 309 Ga. App. 376, 379 (1) (a) (710 SE2d 590) (2011) (noting that, under its plain and ordinary meaning, the word “threat” refers to a communication, declaration, or expression of an intention to inflict harm or damage; explaining that the specific form of a terroristic threat is not important and need not take any particular form or be expressed in any particular words, and may be made by innuendo or suggestion; determining that a communication is sufficient to constitute a threat if a reasonable person could conclude that it was a threat under the circumstances). 7 See OCGA § 16-2-6 (“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”); see also Layne, supra at 611 (1) (issue of intent to commit terroristic threat is a question of fact for jury); Brown v. State, 298 Ga. App. 545, 548 (680 SE2d 579) (2009) (“The intent with which one does an act . . . is particularly an issue for the finder of fact.”).

9 to terrorize. In this regard, direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a trier of fact to find the threats were made for such a purpose.8

Here, the evidence showed that Orr called his estranged wife because he was

upset by her recent actions. After she hung up on him, he immediately called her

again and continued screaming, yelling, ranting, and raving so loudly that others near

her could clearly discern his choice of words and tone. Having heard such, Orr’s wife

and family members took seriously Orr’s collective statements and demeanor as a

threat – summoning law enforcement and vacating the premises.9 Indeed, Orr’s heated

exchange with his wife devolved to his making statements that, when taken together

and in light of all the surrounding circumstances, authorized the trial court’s finding,

by a preponderance of the evidence, that Orr communicated to his wife a threat of

8 Layne, supra (punctuation and footnotes omitted). 9 See Shepherd v. State, 230 Ga. App. 426, 427 (496 SE2d 530) (1998) (holding that in determining defendant’s intent, jury could consider testimony that threats were taken seriously); Bostic v. State, 183 Ga. App. 430, 433 (3) (359 SE2d 201) (1987) (noting that record disclosed that the threatened persons took the threats seriously).

10 committing against her a violent crime and that he did so for the purpose of

terrorizing her.10

The trial court thus did not err by concluding that Orr violated a condition of

probation by committing a new criminal offense, terroristic threat. The cases relied

upon by Orr do not require a outcome in his favor.11 Accordingly, this contention

provides no basis to disturb the probation revocation order.

10 See Layne, supra; Clement, supra; Bostic, supra (holding that question of defendant’s criminal intent was an issue for the factfinder’s consideration, and that the defendant was not entitled to a directed verdict of acquittal based on his argument that his threats were just “big talk”); Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980) (holding that circumstances surrounding statements and actions of defendants supported jury’s finding that terroristic threats were made with the requisite intent and were not conditional). 11 See Sidner v. State, 304 Ga. App. 373, 375-76 (1) (696 SE2d 398) (2010) (reversing defendant’s conviction of committing terroristic threats because there was no evidence that defendant’s threats were directed toward any particular person or that defendant intended or expected that his threats would be conveyed to any particular person; the clear and oft-repeated purpose of defendant’s threats was not to terrorize his neighbors, but rather to obtain a police response to disturbances on his block); Stephens v. State, 271 Ga. App. 509 (610 SE2d 143) (2005) (reversing conviction for terroristic threats where no evidence supported an inference that the defendant intended or expected that his written statement that he wanted to kill his supervisor, sent to the office’s personnel department to explain his desire for a transfer, would be communicated to the supervisor, and when his only purpose in making the statement was to obtain a change of employment status); Wiggins v. State, 171 Ga. App. 358, 359 (1) (319 SE2d 528) (1984) (reversing conviction where defendant made a threat to a third party unrelated to the alleged target, defendant had a history of mental illness, and the message was conditional in nature).

11 2. Orr contests the sufficiency of the evidence supporting the trial court’s

finding that he violated the condition of probation that required him to pay a fine.

The record contains no such evidence. At the outset of the probation revocation

hearing, the state’s attorney and the probation officer reported to the court that no

amount was outstanding. And in its brief on appeal, “[t]he state agrees that the

defendant had paid the $38.00 in fines.”

What is more, as Orr points out, the revocation order provided: “remit the case

allowing probation to FIFA the balance.” Yet the record does not reflect that, on or

before the date of the revocation order, the trial court was presented evidence of any

“balance” that was due. Nor does the state claim that the trial court was so presented

any such evidence.12

Given these circumstances, we vacate the order of revocation as based, in part,

on a finding not supported by the evidence; we remand the case to the trial court for

entry of judgment authorized by the evidence.13

12 See Court of Appeals Rule 25 (b) (1) (providing, inter alia, that appellee’s brief “shall point out any material inaccuracy or incompleteness of appellant’s statement of facts and any additional statement of facts deemed necessary, plus such additional parts of the record or transcript deemed material”). 13 Bryson v. State, 228 Ga. App. 84, 85-86 (2, 3) (491 SE2d 184) (1997) (holding that “the order of revocation must be vacated and the case remanded to the

12 3. Orr challenges various other aspects of the revocation order. Orr complains

that the court ordered confinement until a date certain and for a set number of days.

Orr also complains that the order included the language: “remit the case allowing

probation to FIFA the balance.” Given our holding in Division 2, vacating the entirety

of the order of revocation and remanding the case with direction, these complaints are

moot.

Finally, Orr complains that the order was entered without the trial court having

given him opportunity “to offer evidence in mitigation as to what was the proper

consequence of any finding of a violation of probation.” However, the transcript of

the revocation hearing shows that Orr and his counsel were present throughout the

revocation hearing; that as part of closing argument, Orr’s attorney did propose

modifying, as opposed to revoking, Orr’s probation, in the event that the court

determined that Orr had violated a probationary condition; and that Orr never sought

trial court for the entry of a findings of fact and judgment authorized by the evidence,” where defendant correctly asserted that a written finding was unsupported by the evidence, even though the trial court did not err in determining that defendant had violated the terms of his probation in the manner alleged); see generally Johnson v. State, 307 Ga. App. 570, 572-573 (707 SE2d 373) (2011) (reversing probation revocation and remanding case for further proceedings, where trial court committed reversible error in revoking defendant’s probation for failure to pay court-ordered fines and fees).

13 to, but was disallowed from, presenting any such mitigation evidence during the

hearing. Thus, we find no basis for Orr’s complaint, and it establishes no trial court

error.

Judgment vacated and case remanded with direction. Ellington, C. J., and

Dillard, J., concur.