Esivue Kadiri v. State

• Court: Court of Appeals of Georgia
• Decided: March 14, 2025
• Docket: A24A1255
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., HODGES and WATKINS, 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. https://www.gaappeals.us/rules

March 14, 2025

In the Court of Appeals of Georgia A24A1255. KADIRI v. THE STATE.

DOYLE, Presiding Judge.

Following a jury trial, Esivue Kadiri was found guilty of driving under the

influence per se (“DUI per se”) and speeding. Kadiri appeals, arguing that the trial

court erred by failing to give his requested jury charge on the statute of limitation. For

the reasons that follow, we reverse.

Viewed in the light most favorable to the verdict,1 the record shows that on July

26, 2019, Kadiri was arrested and issued uniform traffic citations (“UTCs”) for DUI

per se, speeding, and failure to maintain lane. On May 1, 2020, the State filed an

accusation charging Kadiri with DUI per se, DUI less safe, speeding, and failure to

1 See Stephens v. State, 247 Ga. App. 719, 719 (545 SE2d 325) (2001). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). maintain lane. The accusation alleged that all offenses occurred in Gwinnett County.

Notably, the less-safe count charged Kadiri with DUI less safe “for that the said

Accused, on or about July 26, 2019, ((Charging Language Text field is blank for this

defendant)) in violation of OCGA § 40-6-391 (a) (1).”

On the Friday before trial, August 11, 2023, the State filed and served on

defense counsel an amended accusation, which revised the DUI less safe and speeding

charges from the original accusation. The amended accusation changed the DUI less-

safe count to add that on July 26, 2019, Kadiri “was in actual physical control of a

moving vehicle while under the influence of alcohol to the extent that it was less safe

for the accused to drive, in violation of OCGA § 40-6-391 (a) (1).” The amended

speeding count changed the name of the road on which the offense occurred from

“Boggs Road” to “State Route 316.” The county of the charges did not change, and

the amended accusation did not include the date of the original accusation.

Immediately prior to the start of trial, Kadiri’s counsel announced to the trial

court that despite the fact that the State had filed the amended accusation a few days

earlier, Kadiri would proceed with trial and would not seek a continuance for

rearraignment or otherwise file a pretrial demurrer to the amended accusation.

2 Nonetheless, counsel stated that he might raise a challenge to the statute of limitation

during trial, and if he did, he would request the trial court allow him to argue the

matter to the jury. The court reserved ruling.

The trial proceeded, and the officer testified about his July 26, 2019

observations of Kadiri speeding, which excessive speed he confirmed with a laser;

failing to maintain lane; and apparent intoxication. He testified that after performing

roadside evaluations for intoxication, he arrested Kadiri and transported him for

testing on an Intoxilyzer 9000, which indicated Kadiri was above the legal breath

alcohol concentration limit of .08 with a reading of .140. The officer’s bodycam video

was also played for the jury in small portions during the officer’s testimony. On

redirect, the following exchange occurred:

[STATE:] So, we talked a little bit about the variation in between what was in the report versus the testimony today about the speed.

[OFFICER:] Yes sir.

[STATE:] When you ticketed the defendant, did you ticket him at . . . [w]hat speed did you ticket him at?

[OFFICER:] I believe it was 90 miles per hour.

3 [STATE:] So, the citation states 90 miles per hour, it may have just been a mistake in the report?

[OFFICER:] Like I said, even watching back the video, what I like to do is take the laser and hold it up to my body camera. You can clearly see at one point during the video when I’m holding it there, the screen on the laser is showing 90 miles per hour on it. I wrote in the report 95 miles per hour. I am human; I do make mistakes.

Kadiri testified, admitting that he was speeding immediately before the officer

pulled him over on the offense date but denied being intoxicated, admitting to only

one alcoholic drink that evening. At the close of evidence, during the charge

conference, Kadiri’s counsel asked the trial court to instruct the jury on the statute of

limitation by giving the pattern charge.2 The State objected, arguing that Kadiri should

have raised the limitation issue through a plea in bar because it was a legal issue and

not proper for jury consideration. The trial court did not give the charge, opining that

2 See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2021), § 1.50.10 (“Members of the jury, the law of our state sets a time limit upon the State in starting prosecution of most criminal offenses. The accused is on trial for the offense of (insert offense). Under Georgia law, prosecution for this offense must begin within (insert number) years after the offense has been committed. If you find from the evidence that the indictment or accusation in this case was not filed within (insert number) years after the offense was committed, it would be your duty to acquit this defendant.”). 4 the issue was for the court to resolve and an instruction would confuse the jury, and

Kadiri’s counsel excepted to the ruling. After the charges were given, counsel

reiterated his objection to the trial court’s failure to give the requested charge on the

statute of limitation to the jury.

The jury found Kadiri guilty of DUI per se and speeding, but not guilty of DUI

less safe and failure to maintain lane. Kadiri timely moved for a new trial, which

motion he later amended, arguing that the trial court should have charged the jury on

the statute of limitation, which would have resulted in his acquittal based on failure

of proof of the timeliness of his prosecution. Kadiri did not move for an arrest of

judgment. After the trial court denied his motion, Kadiri appealed, contending again

that the trial court erred by failing to charge the jury on the statute of limitation.

1. As an initial matter, the State argues that Kadiri waived his right to raise this

challenge because he failed to file a pre-trial plea in bar to the amended accusation

prior to trial. We disagree. Although convoluted, Kadiri is challenging the trial court’s

denial of his request to instruct the jury on the statute of limitation, which he argues

would have resulted in his acquittal based on the failure of the State to present

evidence that it began its prosecution of him within two years of the date of the

5 incident. This is not the same thing as a challenge to the form of the indictment that

must be raised in a pre-trial plea in bar.3 Kadiri presented this issue to the trial court

and obtained a ruling, therefore, Kadiri has not waived the issue for appeal.

2. Kadiri argues that the trial court erred by failing to give his requested jury

charge regarding the statute of limitation and by denying his motion for new trial as

to this issue. We agree.

We review his claim of “legal errors with respect to statute of limitation issues

de novo,”4 review findings of disputed facts for clear error, and “independently apply

3 See Rivera v. State, 317 Ga. 398, 405 (1) (a) (893 SE2d 696) (2023) (“[C]hallenges to the form of an indictment must be raised before trial or they are waived, challenges to the substance of an indictment can be raised at any time before, during, or after trial.”). See also Jenkins v. State, 278 Ga. 598, 604-605, n. 31 (1) (B) (604 SE2d 789) (2004) (“At trial, the burden is unquestionably upon the [S]tate to prove that a crime occurred within the statute of limitation.”) (punctuation omitted), quoting Tuzman v. State, 145 Ga. App. 481, 483-484 (3) (243 SE2d 675) (1978), overruled on other grounds by State v. Outen, 289 Ga. 579, 581 (714 SE2d 581) (2011); Williams v. State, 107 Ga. 721, 723 (33 SE 648) (1899) (explaining the meaning of “form of the indictment” and why such errors must be challenged pre-trial). 4 State v. Jones, 371 Ga. App. 652, 653 (902 SE2d 210) (2024). 6 the law to the facts.”5 Speeding and DUI per se are misdemeanors,6 and OCGA §

17-3-1 (e) requires that a “[p]rosecution for misdemeanors shall be commenced within

two years after the commission of the crime.”7

As explained by the Supreme Court of Georgia in Lee v. State,8

[i]n a criminal case the law is addressed to the court, and the jury is not concerned with questions of law except as the law relevant to the case is given in charge to the jury. Whether an amendment to an accusation or indictment after expiration of the statute of limitations broadens or substantially amends the original charge clearly is an issue of law [on which the trial court should rule].9

5 (Punctuation omitted.) Barker v. State, 370 Ga. App. 562, 564 (1) (898 SE2d 566) (2024). 6 See OCGA §§ 40-6-1 (a); 40-6-391 (a) (5), (c) (1); 40-6-181 (b); 17-3-1 (e). Kadiri was acquitted of DUI less safe and failure to maintain lane, so he cannot show harm from any alleged error in the failure to give the statute of limitation jury instruction as to those counts. See Knox v. State, 290 Ga. App. 49, 54 (3) (658 SE2d 819) (2008) (explaining that any error in the jury charge was harmless because the charge related to an offense of which the defendant was acquitted); Hurston v. State, 278 Ga. App. 472, 475 (2) (629 SE2d 18) (2006) (explaining that any error was rendered harmless because the jury was unable to reach a verdict on the indictment counts that would have been affected by the error). 7 See also Barker, 370 Ga. App. at 564 (1). 8 289 Ga. 95, 96 (709 SE2d 762) (2011). 9 (Citations and punctuation omitted.) Id. at 96. 7 Here, the original accusation was filed within the statute of limitations, which Kadiri

does not dispute, and the two counts for which he was convicted — speeding and DUI

per se — were not substantially changed by the amended accusation, a determination

that the trial court was authorized to make as a matter of law.10 But the trial court erred

by failing to charge the jury as to the statute of limitation, about which no charge at all

was given.11 The proper procedure in this case was explained by the Georgia Supreme

Court in Lee — the trial court should have instructed the jury as to the appropriate

statute of limitation and then “inform[ed] the jurors . . . that the date of the accusation

for [those counts] must be considered to be [May 1, 2020], which was the date of the

original accusation.”12

10 See State v. Outen, 296 Ga. 40, 45 (3) (764 SE2d 848) (2014) (explaining that for purposes of the statute of limitation, an amending charging instrument will relate back to the date of the prior charging instrument if: “(1) the prior [charging instrument] was timely; (2) the prior [charging instrument] is still pending; and (3) the later [charging instrument] does not broaden or otherwise substantially amend the original charges.”); Barker, 370 Ga. App. at 564-565 (1) (explaining that a prosecution commences when a charging document such as a UTC, accusation, or indictment is issued and “continues until there has been a final disposition of the case”) (punctuation omitted). 11 See Jenkins, 278 Ga. at 604-605 (1) (B), n. 31. 12 Lee, 289 Ga. at 96. Alternatively, the State could have included the date of the original accusation in its amended accusation or have provided the original accusation 8 In this case, the State offered evidence of when the crimes occurred, but wholly failed either to offer any proof of when the prosecution was commenced or to request the trial court to give the jury any guidance in that regard. As a result, the jury had before it only the date on which the amended accusations were filed, and not the date of the original accusations. Furthermore, the undisputed evidence showed that the alleged offenses occurred more than two years before the date of the amended accusations. Therefore, the jury was not authorized to find that the crimes occurred within the applicable statute of limitations as set out in OCGA § 17-3-1 (d), nor was the trial court authorized to prohibit Appellant from arguing to the jury the only dates which were before it.13

In an attempt to save the case, the State argues that the UTCs issued by the

officer on the date of the incident can be considered as commencing the prosecution

for purposes of having proved the issue to the jury. It is true, generally speaking, that

in state court proceedings like this one that a prosecution can proceed on a UTC

instead of an accusation or indictment.14 Nevertheless, there remains the issue of

to the jury, as noted by Kadiri. We note that Kadiri was incorrect in calling it an exception to the statute of limitation because it was simply an amendment. 13 Id. at 97. 14 Prindle v. State, 240 Ga. App. 461 (1) (523 SE2d 44) (1999) (“A uniform traffic citation serves as an accusation in any court having jurisdiction over the offense, except superior court[,]” which did not preside over Kadiri’s prosecution.) 9 failure of proof to the jury.15 There is nothing in the record to indicate that copies of

the UTCs were provided to the jury during deliberation (only the amended accusation

appears to have been sent out with them), and the only testimony regarding issuance

of the UTCs is the passing reference quoted above, which does not mention the date

of issuance or even make reference to whether the officer issued a UTC for the DUI

per-se count. Accordingly, the State failed to establish to the jury that prosecution of

the crimes was commenced within the applicable statute of limitation, the trial court

failed to charge the jury as to the issue, and the judgment must, therefore, be reversed.

Judgment reversed. Watkins, J., concurs. Hodges, J., concurs fully and specially.

15 See Lee, 289 Ga. at 97. Compare Barghi v. State, 334 Ga. App. 409, 413-414 (2) (779 SE2d 373) (2015) (explaining that in a bench trial the trial court sitting as finder of fact could rely on certain other evidence to find that the prosecution was not time-barred). 10 A24A1255. KADIRI v. THE STATE.

HODGES, Judge, concurring fully and specially.

I concur fully with the majority’s correct and well-written opinion. I agree that,

under the circumstances of this case, the trial court erred by failing to give Kadiri’s

requested jury charge regarding the statute of limitation and by denying his motion for

new trial as to that issue. I write separately to highlight my concerns with the State’s

failure to take the necessary steps to enable this Court to sustain the jury’s guilty

verdicts in this case.

“The State was required to offer evidence or proof that the crimes charged

occurred within the applicable statute of limitation.” (Citation and punctuation omitted.) Lee v. State, 289 Ga. 95, 97 (709 SE2d 762) (2011). However, as noted by the

majority, though the State in this case offered evidence of when the crimes occurred,

it “wholly failed either to offer any proof of when the prosecution was commenced or

to request the trial court to give the jury any guidance in that regard.” Id. The State

could have introduced the original accusation showing that the prosecution

commenced within the statute of limitation. Or it could have included the date of the

original accusation in its amended accusation. Or it could have introduced the uniform

traffic citations, so long as they provided “at least a bare minimum of facts alleging

how the defendant violated the Code section or at least track[ed] the language of the

Code section—not just the title of the Code section—to set out all of the elements of

the offense.” (Citation and punctuation omitted; emphasis in original.) Barker v.

State, 370 Ga. App. 562, 566 (1) (898 SE2d 566) (2024); see id. at 564 (1) (noting that

“a uniform traffic citation serves as an accusation in any court having jurisdiction over

the offense, except superior court”) (citation and punctuation omitted). Or it could

have done any number of other things to ensure that it met its burden of showing that

the crimes charged occurred within the applicable statute of limitation. But the State

did nothing. In fact, as pointed out by the majority, the only evidence in the record

regarding the prosecution of these crimes was the amended accusation, which showed 2 on its face that the crimes charged did not occur within the applicable statute of

limitation.

Had the State exercised greater care in presenting evidence to meet its burden

of proof with respect to the applicable statute of limitation, judicial resources would

not have been wasted on a case where the record — but not the evidence submitted

to the jury — is undisputed that the crimes charged did, in fact, occur within the

applicable statute of limitation. Accordingly, with these concerns in mind, I concur

fully with the majority opinion and urge representatives of the State to ensure that

they are taking the necessary steps to offer evidence or proof that the crimes charged

occurred within the applicable statute of limitation.