Latoya Thornton v. State

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, 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. http://www.gaappeals.us/rules/

December 13, 2013

In the Court of Appeals of Georgia A13A1867. THORNTON v. THE STATE.

MILLER, Judge.

Latoya Thornton was charged by accusation with the offense of simple battery.

Thornton filed a general demurrer and motion to quash the accusation on the ground

that the indictment was fatally defective since it charged “Latoia Jordan,” a person

not known to Thornton. The trial court denied Thornton’s motion, concluding the

accusation was not rendered defective due to a fatal variance because it charged her

as the perpetrator by use of an alias, which constituted a permissible misnomer. This

Court granted Thornton’s application for interlocutory appeal. On appeal, Thornton

contends the accusation should have been quashed because it charged her with a

name by which she is not known. For the reasons that follow, we affirm. The record shows that in February 2006, Thornton was arrested on the charge

of simple battery and transported to the Fulton County Jail, where she was booked

under the name “Latoia Jordan.” Thornton admitted that between 2005 and 2012, she

had been arrested and transported to the Fulton County Jail at least three times, and

each time she was processed under the name Latoia Jordan. Thornton stated that her

date of birth was February 7, 1974, and this matched the information on the booking

sheet for Latoia Jordan. Following her arrest, Thornton was released on bond.

The State charged Thornton by accusation in January 2008. The accusation –

Case No. 08CR329759 – listed the name Latoia Jordan. In August 2008, the trial

court forfeited Latoia Jordan’s bond due to her failure to appear and ordered an

execution hearing. The trial court subsequently entered an order relieving the surety

of liability, and in its order, the trial court specifically listed Latoia Jordan’s alias as

Latoya Thornton.

In September 2012, Thornton signed a waiver for formal arraignment in this

case – the January 2008 accusation filed against Latoia Jordan. She then filed a

general demurrer and motion to quash the accusation on the ground that it charged

a person not known to Thornton. The trial court denied her motion, and this appeal

ensued.

2 Thornton contends that the accusation is fatally defective because it charged

by a name by which she is not known. We disagree.

Although styled as a general demurrer and motion to quash accusation,

Thornton’s motion in substance was a plea of misnomer. See Miller v. State, 264 Ga.

App. 801, 803 (b) (592 SE2d 450) (2003) (noting that in reviewing filings, we look

to substance over nomenclature). In a plea of misnomer, the defendant generally

claims that she is not the person named in indictment or accusation, and that she is

not known or called by the name of the accused. See OCGA § 17-7-112. “However,

a defendant may be indicted [or charged by accusation] properly under a name by

which [s]he is generally known and called, whether this be [her] true name or not.”

(Punctuation and footnote omitted.) Vanorsdall v. State, 241 Ga. App. 871, 876 (2)

(d) (528 SE2d 312) (2000). Consequently, to sustain a plea of misnomer, the accused

must show that she was never known under the name used in the accusation. See

Walker v. State, 113 Ga. App. 526, 527 (1) (149 SE2d 153) (1966).

In this case, the record supports the trial court’s decision that the accusation

properly charged Thornton. Notably, Thornton admitted that she had been previously

arrested and booked into jail under the name Latoia Jordan, and Jordan’s listed date

of birth matched that of Thornton. Additionally, Thornton signed a waiver of formal

3 arraignment in this case, which specifically listed her name as Jordan a/k/a

“Thornton.” Consequently, contrary to Thornton’s claims, the evidence clearly shows

that Jordan was another name by which Thornton was known.

In support of her argument, Thornton cites to Culpepper v. State, 173 Ga. 799

(161 SE2d 623) (1931) and Noeske v. State, 181 Ga. App. 778 (353 SE2d 635) (1987)

and, but those cases are inapposite. Although Culpepper stated that omission of the

defendant’s surname constituted a fatal variance, the fatal defect in the accusation

was that it did not designate the defendant by his own proper name or misnomer as

the perpetrator of the offense charged. Culpepper, supra, 173 Ga. at 800. In Noeske,

the accusation was fatally defective because it clearly charged someone other than the

defendant. See Noeske, supra, 181 Ga. App. at 779-780 (2). The reason the

accusations in Culpepper and Noeske were fatal was that they designated a distinct

and separate person as the perpetrator of the offense. In this case, however, Thornton

does not make a claim that she was not the person charged with simple battery for the

underlying incident. Indeed, she admits to having been arrested for the offense and

that she would be able to defend herself against the pending charges. Rather, her

claim is that she was accused under the wrong name, but this is insufficient to carry

her burden to sustain a plea of misnomer because the evidence shows that she was

4 known by Latoia Jordan. See Walker, supra, 113 Ga. App. at 527 (1). Moreover,

notice provided by use of an alias or other name by which a defendant is known is

constitutionally sufficient. State v. Grube, 293 Ga. 257, 261 (2) (744 SE2d 1) (2013).

Accordingly, we affirm the trial court’s denial of Thornton’s general demurrer and

motion to quash accusation.

Judgment affirmed. Barnes, P. J., and Ray, J., concur.