Kevin Lamar Jackson v. State

• Court: Court of Appeals of Georgia
• Decided: May 25, 2023
• Docket: A23A0417
• Status: Published

Opinion

FOURTH DIVISION RICKMAN, C. J., DILLARD, P. J., and PIPKIN, 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. https://www.gaappeals.us/rules

May 25, 2023

In the Court of Appeals of Georgia A23A0417. JACKSON v. THE STATE.

PIPKIN, Judge.

A jury found Kevin Lamar Jackson guilty of rape and simple battery. Following

the denial of his motion for new trial, Jackson appeals, arguing that the trial court

committed reversible error in admitting a recording of the crime made by the victim

on her iPhone. For reasons that follow, we find no error and affirm.

Viewed favorably to the verdict, the evidence shows that, on November 10,

2016, the victim lived with her infant daughter in a hotel. That night, Jackson came

to the hotel room with the victim’s cousin. Although the victim had known Jackson

when she was a child, she had not seen him in years. After the other adults left,

Jackson remained behind. He began talking to the victim about sex, which made her

uncomfortable. She began recording the encounter on her iPhone. According to the victim, Jackson physically picked her up and moved her to the bed where he pinned

her down, pulled her pants off, and had sex with her. During the audio recording,

which was played for the jury, the victim can be heard repeatedly telling Jackson “no”

and telling him to get off her. At the end of the recording, the victim can be heard

crying.

After Jackson left, the victim called a friend who called the police. When the

police arrived, they found the victim shaking and visibly distraught. The victim was

taken to the hospital where she underwent a sexual assault examination. Vaginal

swabs taken during the examination contained Jackson’s DNA. Based on the

evidence presented, the jury found Jackson guilty of rape and simple battery.

Prior to trial, Jackson moved to exclude the recording the victim made on her

iPhone. The trial court ruled that the audio portion of the recording was admissible,

and that portion was played at trial. On appeal, Jackson contends that the trial court

erred in admitting this recording because it was a secret recording made in violation

of Georgia’s laws governing unlawful surveillance, OCGA § 16-11-60 et seq. He

asserts that the recording was thus inadmissible under OCGA § 16-11-67. We

disagree.

2 OCGA § 16-11-67 precludes the admission of evidence obtained via unlawful

surveillance as set forth in OCGA §§ 16-11-60 through 16-11-70. According to

Jackson, the recording was made in violation of OCGA § 16-11-62 (2), which makes

it unlawful for “[a]ny person, through the use of any device, without the consent of

all persons observed, to observe, photograph, or record the activities of another which

occur in any private place and out of public view[.]” Jackson is mistaken.1

Here, the trial court did not admit a recording of any activity as contemplated

by OCGA § 16-11-62 (2). Rather, the trial court admitted only the audio portion of

the recording, which is governed by OCGA § 16-11-62 (1). In Weintraub v. State,

352 Ga. App. 880 (836 SE2d 162) (2019), we made clear that cell phone videos

include both audio and video recordings. In that case, a guest in a home used his cell

phone to record an altercation between Weintraub and his wife. Weintraub sought to

exclude the recording under OCGA § 16-11-62, and the trial court denied the motion

in limine. We remanded the case to the trial court, directing that court to determine

1 Given that the crime occurred in the victim’s hotel room, we question whether Jackson had any expectation of privacy protected by OCGA § 16-11-62 (2). See State v. Cohen, 302 Ga. 616, 628-630 (2) (b) (807 SE2d 861) (2017). We also question whether the filming of such an incident would fall within the crime detection exception to unlawful surveillance. See OCGA § 16-11-62 (2) (C). Since resolution of these issues is unnecessary to our analysis, we do not resolve these questions.

3 whether the audio portion of the recording was admissible under OCGA § 16-11-62

(1). Id. at 890-891 (2).

Here, because only the audio portion was tendered, this case is governed by

OCGA § 16-11-62 (1). Under this statute, it is unlawful for “[a]ny person in a

clandestine manner intentionally to overhear, transmit, or record or attempt to

overhear, transmit, or record the private conversation of another which shall originate

in any private place[.]” OCGA § 16-11-62 (1). “It is well established that OCGA §

16-11-62 (1) does not prohibit one party to a conversation from secretly recording or

transmitting it without the knowledge or consent of the other party.” (Citation and

punctuation omitted). Suggs v. State, 310 Ga. 762, 766 (4) (854 SE2d 674) (2021).

The victim was thus authorized to record her conversation with Jackson without first

obtaining his consent. See id. Accordingly, the evidence was not subject to exclusion

under OCGA § 16-11-67. See id. It follows that the trial court did not err in admitting

the recording in evidence.

Judgment affirmed. Rickman, C. J., and Dillard, P. J., concur.