SECOND DIVISION MILLER, P. J., RICKMAN and GOSS, 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
June 24, 2019
In the Court of Appeals of Georgia A19A0717. HAWKINS v. THE STATE.
MILLER, Presiding Judge.
Following a two-week trial, a jury convicted Sheila Hawkins on 16 counts
relating to Hawkins’s role in the unlicensed operation of a care facility for disabled
persons and the neglect and abuse endured by the residents of that facility. On appeal
from her convictions, Hawkins raises numerous claims of error arising from her
criminal proceedings and the denial of her motion for new trial. For the reasons
provided below, we affirm in part, but we vacate three of Hawkins’s convictions and
remand for resentencing.
Viewed in the light most favorable to the verdict,1 the evidence adduced at trial
showed that Hawkins, a licensed professional counselor, was the manager and
1 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). director of Serene Reflections for Holistic Behavior and Wellness (“Serene
Reflections”), a licensed mental health day facility for disabled adults. Hawkins’s
mother, Helen Bell, lived in a home on Windy Hill Road in Marietta, Georgia
(“Windy Hill Home”).
In late 2014, Charlene Walker, an employee of Serene Reflections, contacted
law enforcement and informed them that Bell was operating an unlicensed facility for
disabled adults out of the Windy Hill Home. When law enforcement arrived at the
Windy Hill Home and knocked on the door, no one answered. The officers went to
the back of the house and found three men locked in the basement. The men inside
called out to the police and asked, “Are you here to help us?” Bell, who was still
inside the house, eventually responded to law enforcement and unlocked the door to
allow the officers to enter the basement.
The officers found three men living in the basement in terrible condition. One
man, Robert Bacon, “was very dirty, smelled really bad, [had] unkempt long
fingernails, [and] his teeth were rotten.” Bacon complained to law enforcement that
he was hungry and cold and that he “had to fill up the water bottle in the bathtub,”
and he “kept saying cold, cold, cold, cold, cold, and he wanted to keep running
upstairs.” Another man, Joseph Wilson, “smelled really bad. He wasn’t shaven,” and
2 his clothes were soiled and baggy. The third man, Travis McCargo, was wearing
ripped clothing and kept saying to law enforcement the words “food” and “cold.”
The room where the three gentlemen lived was dark, and the floors consisted
of uncarpeted hard cement. The basement had a window with bars over it. The room
was very cold, with no operational heating, to the point that “[y]ou could see your
breath.” The refrigerator and cabinets were chained and locked with a padlock. The
cabinets could only be opened by Bell and contained clean linens and washcloths.
The refrigerator, which could be opened by Wilson, contained only bread,
condiments, and sliced bologna. Wilson regularly made bologna sandwiches for the
three men, which constituted most of their meals. The bathroom had no doors and no
toiletries such as soap, shampoo, or towels. The toilet did not flush, requiring the men
to take water from the bath to flush the contents. Occasionally, that system did not
work, and the men had to use a bucket to remove the toilet’s contents and pour them
on the ground. The bath did not have hot water, and the tub and the bathroom walls
were very dirty and covered with mold. The basement also contained a washing
machine and a dryer, but neither was functional. The beds were too small for the men,
and they each had just a blanket and a pillow to sleep on with no sheets. In the
bedrooms, “there was a severe stench of body odor and urine . . . it was very
3 prevalent. You could smell it when you came downstairs.” A resident of Serene
Reflections came to the basement on occasion to clean, but he testified that the
basement was “not fit to live in.”
Bell and some of her family members lived in the upstairs portion of the Windy
Hill Home, which was furnished just as any normal home. The stairs that connected
the basement to the rest of the house consisted of bare wood with carpet tacks
sticking up from strips on each stair. The door to the upstairs was kept locked, and
the men were not allowed to use the door or gain access to the upstairs portion of the
house to do things such as use the bathrooms. When Bell did have contact with the
residents, she was often verbally abusive.
Before residing at the Windy Hill Home, Travis McCargo lived with his
adoptive mother, Katie McCargo, who also was taking care of Wilson and many other
adults with mental health issues. Ms. McCargo eventually began taking Travis to
Serene Reflections for day care. While Travis was at Serene Reflections, Hawkins
discussed Travis’s needs with Ms. McCargo. As recounted by Ms. McCargo’s
granddaughter, “Hawkins was very adamant that Travis needed residential care and
referred Katie McCargo to a woman by the name of Helen Bell. Ms. Hawkins told
Katie McCargo that Helen Bell ran a personal care home on Windy Hill Road in
4 Marietta, Georgia, that the home was licensed, and that Helen Bell was fully qualified
to take care of Travis McCargo’s needs.” Ms. McCargo agreed to move Travis into
the Windy Hill Home. Following Ms. McCargo’s death, someone from Serene
Reflections came and picked up Wilson and took him to the Windy Hill Home. Bacon
had lived with Bell at a previous home before he was moved to the Windy Hill Home.
While living at the Windy Hill Home, Wilson and Bacon were regularly taken by staff
to Serene Reflections for a few hours a day. Wilson sometimes saw Bell at Serene
Reflections to talk “business.” Eventually, however, the staff stopped bringing
Wilson and Bacon to the Serene Reflections campus, but Serene Reflections’s
therapists would visit them on occasion.
Charlene Walker began working for Serene Reflections after first being
introduced to Bell. Bell informed Walker that Hawkins was looking for an employee
to take care of two group homes (neither of which were the Windy Hill Home), and
she then took Walker to meet with Hawkins, who hired Walker. According to Walker,
Bell was not willing to take residents or clients for the Windy Hill Home from
anywhere else other than Serene Reflections. During the operation of the Windy Hill
Home, the staff of Serene Reflections had multiple discussions about the conditions
5 of the Windy Hill Home. According to Walker, Hawkins “was aware of the
circumstances . . . in the home.”
A grand jury indicted Hawkins on 16 counts relating to her role in the operation
of the Windy Hill Home: one count of the unlicensed operation of a personal care
home, in violation of OCGA § 31-7-12.1 (Count One); three counts of neglect of a
disabled person, in violation of OCGA § 16-5-101 (Counts Two through Four); nine
counts of the abuse of a disabled person, in violation of OCGA § 16-5-102 (Counts
Five through Thirteen); and three counts of the exploitation of a disabled person, in
violation of OCGA § 16-5-102 (Counts Fourteen through Sixteen).2 The jury found
Hawkins guilty on all counts. The trial court sentenced Hawkins to a total of 10 years’
imprisonment and 20 years’ probation. Hawkins filed a motion for a new trial, which
she later amended after retaining new counsel. The trial court denied Hawkins’s
motion after a hearing, and this timely appeal followed.
1. Hawkins argues that the evidence was insufficient to support the jury’s
guilty verdict on multiple counts. We are not convinced.
2 The trial court also imposed a $100,000 fine on the count of the unlicensed operation of a personal care home (Count One).
6 When we review challenges to the sufficiency of the evidence, we neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(Citation and punctuation omitted). Moore v. State, 340 Ga. App. 151, 153-154 (2)
(796 SE2d 754) (2017). In addition,
[a] conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused. OCGA § 24-4-6. When the evidence meets this test, circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury. When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Further, while circumstantial evidence must exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis.
(Citation omitted.) Johnson v. State, 291 Ga. App. 253, 254 (661 SE2d 642) (2008).
(a) Hawkins first argues that the evidence was insufficient to support her
conviction for the unlicensed operation of a personal care home because the State did
7 not present evidence that the victims were not related by blood or marriage to her or
Bell. We disagree.
“A facility shall be deemed to be an ‘unlicensed personal care home’ if it is
unlicensed and not exempt from licensure and . . . [t]he facility is providing personal
services and is operating as a personal care home as those terms are defined in OCGA
§ 31-7-12.” OCGA § 31-7-12.1 (a) (1). OCGA § 31-7-12 defines a “personal care
home” as “any dwelling, whether operated for profit or not, which undertakes through
its ownership or management to provide or arrange for the provision of housing, food
service, and one or more personal services for two or more adults who are not related
to the owner or administrator by blood or marriage.” (Emphasis added.) OCGA
§ 31-7-12 (a) (1).
At trial, Wilson testified that he had no family related by blood living in
Georgia and that he did not know Bell before he moved into the Windy Hill Home.
Ms. McCargo’s granddaughter also testified at trial that Travis McCargo and Ms.
McCargo first encountered Hawkins and Bell when they were searching for day
health care for Travis and that Ms. McCargo did not know Bell until after they moved
to Atlanta in 2012. Ms. McCargo also met Bell through Hawkins and Serene
Reflections.
8 The evidence therefore demonstrates that at least two residents of the Windy
Hill Home had no prior relationship with Hawkins or Bell before they either enrolled
at Serene Reflections or resided at the Windy Hill Home. While this circumstantial
evidence does not exclude every possible inference or hypothesis that the residents
of the Windy Hill Home might have been related by blood or marriage to Hawkins
or Bell (it is, after all, possible to be related to someone you have never met), we
conclude that, in the absence of any evidence even hinting that Hawkins or Bell were
related to any of the residents of the Windy Hill Home, the circumstantial evidence
presented at trial was sufficient to exclude any other reasonable hypothesis but the
conclusion that at least two of the residents of the Windy Hill Home were not related
to Hawkins or Bell. See Johnson, supra, 291 Ga. App. at 254. We therefore conclude
that there was sufficient evidence for the jury to conclude that the Windy Hill Home
was a “personal care home” as defined in OCGA § 31-7-12 and convict Hawkins on
this count.
(b) Hawkins argues that the evidence was insufficient to support her
convictions for the neglect of disabled adults (Counts Two through Four) because the
statute of conviction does not apply to “long-term care facilities” or an “agent or
9 employee thereof.” For this argument, Hawkins relies on OCGA § 16-5-101 (b),
which reads, “The provisions of this Code section shall not apply to
a . . . long-term care facility, nor any agent or employee thereof who is in good faith
acting within the scope of his or her employment or agency . . . .”
This safe-harbor provision, however, is not part of the essential elements of the
crime that the State needed to affirmatively prove at trial. The essential elements of
the crime of neglect of disabled adults are instead found at OCGA § 16-5-101 (a),
which directs that
[a] guardian or other person supervising the welfare of or having immediate charge, control, or custody of a disabled adult . . . commits the offense of neglect to a disabled adult . . . when the person willfully deprives a disabled adult . . . of health care, shelter, or necessary sustenance to the extent that the health or well-being of such person is jeopardized.
Cf. Smith v. State, 301 Ga. 348, 351-352 (II) (801 SE2d 18) (2017) (concluding that
the evidence was sufficient to support a conviction of neglect under OCGA § 16-5-
101 (a) without referring to OCGA § 16-5-101 (b)). Thus, this enumeration is not a
proper challenge to the sufficiency of the evidence. See Moore, supra, 340 Ga. App.
at 153-154 (2) (noting that the test for sufficiency of the evidence is whether “a
10 rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt”) (emphasis added). Additionally, because the record does not show
that Hawkins requested a jury charge below on any defense encapsulated in OCGA
§ 16-5-101 (b), and Hawkins does not argue on appeal that the trial court should have
charged the jury on this defense ,3 we will not address it for the first time on appeal
when the jury was not provided an opportunity to pass on it in the first instance.
(c) Hawkins next argues that the evidence was insufficient to support her
convictions for abuse by unreasonable confinement (Counts Eight through Ten).
Hawkins argues that Wilson had a key to the basement door, that he and Bacon were
allowed to come and go as they pleased, and that it was not unreasonable to confine
McCargo due to his history of severe mental illness. We disagree.
“Any person who . . . willfully inflicts . . . unreasonable confinement upon a
disabled adult . . . shall be guilty of a felony.” OCGA § 16-5-102 (a). The statute of
conviction does not define the term “unreasonable confinement.” “We therefore look
to the ordinary meaning of the words, given that they are not terms of art; and we look
3 Because none of the defenses in OCGA § 16-5-101 (b) would have been Hawkins’s “sole defense,” the trial court would not have been required to sua sponte provide a charge on this defense under the rule announced in Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991).
11 for the intention of the General Assembly.” Brown v. State, 314 Ga. App. 1, 3 (723
SE2d 112) (2012). The word “confine” is defined as “1. To keep within bounds;
restrict. 2. To shut within an enclosure; imprison. 3. To restrict in movement. And the
word ‘confinement’ is defined as: 1. a. The act of confining. b. The state of being
confined.” (Citation and punctuation omitted.) Id.
The evidence adduced at trial was sufficient to show that McCargo, Wilson,
and Bacon were confined. Wilson testified at trial that Bell had provided him with a
key to the basement door, but he also testified that he was given strict instructions
from Bell “[n]ot to leave out of the house without her permission going anywhere.”
When Wilson and Bacon would go to Serene Reflections for their classes, McCargo
would stay at home in the basement, and the doors would be locked, as instructed by
Bell, so that he could not get out. Evidence was also produced that the three men
could not enter the upper portion of the house, even to use the restrooms. Moreover,
when law enforcement arrived to inspect the Windy Hill Home, they found McCargo,
Wilson, and Bacon locked in the basement. Law enforcement had to get Bell to
unlock the door to allow them access, and there was no indication from that encounter
that Wilson, or either of the other men, was able to open the door to let them enter at
that time. From this evidence, a reasonable jury could conclude that the three men
12 were “kept within bounds,” “shut within an enclosure,” or “restricted in movement”
such that they were confined. See Brown, supra, 314 Ga. App. at 3.
As to the reasonableness of the confinement, the jury was also presented with
evidence showing the circumstances of the residents’ confinement. The jury was
presented with evidence that Bell wanted the door to remain locked to ensure that
McCargo did not walk away from the premises, which could be dangerous due to his
severe mental illness. The jury was also presented with evidence of the three men’s
mental illnesses, including prior incidents where some of the men exhibited
uncontrollable behavior. On the other hand, the jury was provided with evidence of
the poor conditions in which the men lived. The jury was further presented with
evidence that, when law enforcement arrived at the Windy Hill Home, the men inside
called out to the police and asked, “Are you here to help us?” Once the State
produced evidence of a confinement, “[i]t [was] for the jury to decide” if the
confinement was unreasonable. See Moore, supra, 340 Ga. App. at 154 (2). We
therefore conclude that the evidence was sufficient to support Hawkins’s convictions
on these counts.
(d) Hawkins further argues that the evidence was insufficient to support a
conviction for the exploitation of McCargo (Count Fourteen). She argues that there
13 was no evidence that McCargo’s government benefits were obtained under undue
influence, coercion, harassment, duress, or deception for profit and advantage. We are
not convinced.
Under the Georgia Code, “Any person who knowingly and willfully exploits
a disabled adult . . . shall be guilty of a felony.” OCGA § 16-5-102 (a). The Code
defines “exploit” as “illegally or improperly using a disabled adult . . . or that person’s
resources through undue influence, coercion, harassment, duress, deception, false
representation, false pretense, or other similar means for one’s own or another
person’s profit or advantage.” OCGA § 16-5-100 (6) (2013).
Ms. McCargo’s granddaughter testified at trial that “Hawkins was very
adamant that Travis needed residential care,” Hawkins “referred Katie McCargo to
. . . Bell,” and that Hawkins “told Katie McCargo that Helen Bell ran a personal care
home on Windy Hill Road in Marietta, Georgia, that the home was licensed, and that
Helen Bell was fully qualified to take care of Travis McCargo’s needs.” Travis
McCargo’s sister testified that, at Bell’s instruction, the entire check that McCargo
received from the Social Security Administration each month was sent first to Bell
and then eventually to a bank account owned by Hawkins’s son. In fact, the Windy
Hill Home was not licensed. Based on her status as the director of a licensed care
14 facility, the jury was entitled to conclude that Hawkins understood that the fact that
a facility is licensed would be a material consideration for family members seeking
to place their disabled loved ones in a care facility. This evidence was sufficient to
show that Hawkins, by misrepresenting that the Windy Hill Home was licensed, used
deception, false representation, or false pretense in relation to a disabled person for
her own or her family’s profit or advantage, and so the evidence was sufficient to
convict on this count. See OCGA §§ 16-5-100 (6) (2013), 16-5-102 (a); Escamilla v.
State, 344 Ga. App. 654, 655-656 (1) (811 SE2d 77) (2018) (evidence sufficient to
show exploitation through deception or undue influence when defendant informed the
victim that the money would be used for one purpose when, in actuality, the money
was used for the defendant’s own personal gain).
2. Hawkins next argues that the trial court erred in allowing the testimony of
Georgia Medicaid fraud examiners regarding the alleged billing practices of Serene
Reflections because it failed to conduct the balancing test under OCGA § 24-4-403.
However, this claim is belied by the record since the trial court did conduct the
required balancing test. In addition, the evidence the fraud examiners presented
consisted of investigations into Serene Reflections’s billing practices in relation to
the three men found at the Windy Hill Home, which were relevant to show Hawkins’s
15 motives, her connection to the Windy Hill Home, and her exploitation of the three
men as charged in Counts 14-16, such that any prejudice of the evidence they
presented did not substantially outweigh their probative value. See Entwisle v. State,
340 Ga. App. 122, 131 (2) (796 SE2d 743) (2017) (“[I]t is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant
matter. As we have noted, OCGA § 24-4-403 offers an extraordinary remedy that
must be used sparingly because it results in the exclusion of concededly probative
evidence. In close cases, the balance is struck in favor of admissibility.”) (citation
omitted). We conclude that the trial court did not err on this issue.
3. Relatedly, Hawkins argues that the trial court erred when it failed to provide
a limiting instruction to the jury on the appropriate application of the fraud
examiners’ testimony of extrinsic acts to the facts of the case. The record shows,
however, that the trial court did not provide a limiting instruction on this testimony
because it had previously limited the testimony presented by the fraud examiners to
evidence of investigations into the billing for the three men found at the Windy Hill
Home and had specifically instructed the fraud examiners to limit their testimony
accordingly. The trial court therefore concluded that no evidence of extrinsic acts was
introduced, such as investigations into possible fraud involving the billing of other
16 clients, and no further limiting instruction was necessary. Because Hawkins does not
address the trial court’s reasoning on this point, this enumeration fails.
4. Hawkins next argues that the trial court erred when it instructed the jury on
deliberate indifference because the trial court allowed the jury to infer an essential
element of the crime, namely, her knowledge of wrongdoing. We disagree.
The trial court gave the following instruction on deliberate indifference:
The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed their eyes to what would otherwise have been obvious. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge.
Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the act. Again, whether or not you draw any such inference is a matter solely within your discretion.
An inference “may not, consistent with the constitutional requirement that a
criminal defendant’s guilt must be proven beyond a reasonable doubt, lessen or shift
the state’s burden of proof.” (Citation omitted.) Isaacs v. State, 259 Ga. 717, 734 (35)
(b) (386 SE2d 316) (1989). “Whether an [inference] has such an impermissible effect
17 depends upon whether it is permissive or mandatory. A permissive [inference] is valid
if it is rational. A mandatory inference or presumption concerning an element of the
offense is invalid.” (Citations omitted.) Id.
The trial court’s instruction on deliberate indifference here was a permissive
inference rather than a mandatory inference. The trial court instructed that the element
of knowledge “may” be satisfied with an inference drawn from proof of deliberate
indifference, that a finding of deliberate indifference “would permit” an inference of
knowledge, and that “whether or not [the jurors drew] any such inference [was] a
matter solely within [their] discretion.” We conclude that this instruction “permits,
but does not require, the jury to infer the [element of knowledge] from proof of
[deliberate indifference],” and so it is a permissive inference. Isaacs, supra, 259 Ga.
at 735 (35) (b). Because it is the law that the element of knowledge may be satisfied
by a finding of deliberate indifference, see, e.g., Hutchins v. State, 326 Ga. App. 250,
259 (3) (756 SE2d 347) (2014), the trial court’s instruction did not improperly or
unconstitutionally shift the burden of proof.
5. Hawkins argues that the trial court erred when it prevented her from
introducing into evidence the search warrant for the Windy Hill Home and the
accompanying police report so as to allow her to cross-examine Cobb County
18 investigator Amy Worthington regarding the contents of the search warrant and the
facts and circumstances surrounding the issuance of the search warrant. Hawkins
argues that these documents were admissible by relying upon caselaw citing to former
OCGA § 24-3-2, which decreed that “when, in a legal investigation, the conduct and
motives of the actor are matters concerning which the truth must be found (i.e., are
relevant to the issues on trial), then information, conversations, letters and replies,
and similar evidence known to the actor are admissible to explain the actor’s
conduct.” (Footnote and punctuation omitted.) Entwisle, supra, 340 Ga. App. at 129
(1) (b). “That Code section, however, was not carried over into the new Evidence
Code.” Id. Hawkins does not present any arguments as to how the documents could
have been admissible under our current Evidence Code.4 Moreover, the trial court did
not limit Hawkins’s ability to cross-examine the witness on the circumstances
surrounding law enforcement’s entry and search of the Windy Hill Home, as
demonstrated by the fact that the defense continued on to question Officer
Worthington about the warrant and the search after the trial court’s ruling. Therefore,
this enumeration fails.
4 Because the trial in this case occurred after January 1, 2013, the new Evidence Code governs the admission of evidence in this case. See Parker v. State, 296 Ga. 586, 588 (1) (769 SE2d 329) (2015).
19 6. Hawkins next argues that the prosecution impermissibly commented on her
refusal to talk to the police at the time of her arrest during its cross-examination of
her. We conclude, however, that Hawkins invited any error on this point when trial
counsel told the State during a sidebar to “go there” and by informing the trial court
that he “wanted [the State] to go there.” See Heidler v. State, 273 Ga. 54, 61 (9) (537
SE2d 44) (2000) (concluding that defendant invited error when defense counsel
“urged the trial court to allow” the testimony that the defendant was challenging on
appeal).
7. Hawkins argues that the trial court improperly allowed the State to impeach
Greg Roseberry, who helped produce a chart of Serene Reflections’ finances that
Hawkins relied on in her defense at trial, by presenting evidence of his prior
conviction. Hawkins argues that the chart that Roseberry prepared was not hearsay
because she provided all the data that was used in the chart, and Roseberry merely
assembled the data into a chart, and, therefore, Roseberry should not have been
impeached as a hearsay declarant. Hawkins also argues that the trial court erred when
it denied her motion for a mistrial based on the improper impeachment. We disagree.
“Whether to declare a mistrial is a question committed to the discretion of the
trial judge, and the denial of a mistrial is reversible error only if it appears that a
20 mistrial was essential to preserve the defendant’s right to a fair trial.” (Citation
omitted.) Dorsey v. State, 331 Ga. App. 486, 491 (4) (771 SE2d 167) (2015). Hearsay
is defined as a “statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA
§ 24-8-801 (c). A “statement” is an “oral or written assertion.” OCGA § 24-8-801 (a)
(1). “When a hearsay statement has been admitted in evidence, the credibility of the
declarant may be attacked and, if attacked, may be supported by any evidence which
would be admissible for those purposes if the declarant had testified as a witness.”
OCGA § 24-8-806.
During the direct examination of Hawkins, the defense introduced into
evidence a chart that demonstrated Serene Reflections’s Medicaid billings for Bacon
and Wilson, to demonstrate that the amount of money involved would have been too
small for Hawkins to have had a financial motive to exploit them. Hawkins testified
that she “worked . . . together” on “the content of the chart” with Roseberry, who was
her accountant and the accountant for Serene Reflections. Hawkins further testified
that Roseberry “plugged in the information in the boxes” in the chart. We conclude
that Roseberry was shown to be an author of the information in the chart, which was
created outside of trial. Because Roseberry did not testify to that information at trial,
21 and Hawkins introduced the chart for the purpose of showing the true financial
statements of Serene Reflections regarding the billing for Wilson and Bacon, the
information in the chart was hearsay. See OCGA § 24-8-801 (c). The State therefore
was entitled to impeach Roseberry’s credibility, and, as a result, the trial court did not
abuse its discretion when it denied Hawkins’s motion for a mistrial based on the
impeachment. See OCGA § 24-8-806; Dorsey, supra, 331 Ga. App. at 491 (4).5
8. Hawkins next argues that her trial counsel provided ineffective assistance
at multiple points during the trial. We disagree.
To establish a claim of ineffective assistance of counsel, a defendant must show
that “(1) her trial counsel’s performance was professionally deficient and (2) but for
such deficient performance there is a reasonable probability that the result of the trial
would have been different. On appeal, this [c]ourt accepts the trial court’s findings
of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions
are reviewed de novo.” (Citation and punctuation omitted.) Crankshaw v. State, 336
Ga. App. 700, 702 (3) (786 SE2d 245) (2016).
5 We note that the trial judge also provided a limiting instruction to the jury that they could only consider Roseberry’s conviction to impeach his credibility and could not use it for any other purpose.
22 “Decisions regarding which witnesses to call, what motions to file, and other
tactical decisions are within the province of the trial attorney after consultation with
his client.” (Citation omitted). Howard v. State, 267 Ga. App. 257, 259 (2) (b) (599
SE2d 231) (2004). Such knowing and conscious tactical decisions, “even if unwise,”
do not generally amount to ineffective assistance. (Citation omitted.) Id. Similarly,
“[t]he decision of whether to interpose certain objections is a matter of trial strategy
and tactics. Errors in judgment and tactical errors do not constitute denial of effective
assistance of counsel.” (Citation omitted.) Crankshaw, supra, 336 Ga. App. at 703 (3)
(b).
(a) Hawkins first argues that her trial counsel was ineffective for failing to
request a limiting instruction on the fraud examiners’ testimony regarding an
investigation into Serene Reflections for Medicaid fraud. This claim is belied by the
record because trial counsel did (unsuccessfully) request a limiting instruction.
(b) Hawkins next argues that trial counsel was ineffective for allowing the State
to comment on her refusal to speak to the police at the time of her arrest, as noted in
Section 6, supra. At the outset, we note that Hawkins relies on our long line of
precedent concluding that comments upon a defendant’s silence or failure to come
forward are categorically disallowed from evidence, specifically citing the Georgia
23 Supreme Court’s decision in Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839)
(1991). However, after the briefs were filed in this appeal, the Georgia Supreme Court
concluded that Mallory’s categorical rule was inconsistent with Georgia’s new
Evidence Code and, therefore, does not apply in cases proceeding under the new
Code. State v. Orr, S18G0994, __ Ga. __ (__ SE2d__) (May 6, 2019). Instead, the
Georgia Supreme Court concluded that the “analysis now requires careful
consideration of what specific sorts of evidence that come within the broad phrase
‘silence or failure to come forward’ may be properly offered under which particular
evidence rules and theories.” Id. at (4) (a).
Putting aside, however, the question of whether the State’s comments on
Hawkins’s silence were permitted or forbidden under Orr, we conclude that counsel’s
decision here to not object to the State’s comments was made as a part of trial strategy
and was not “patently unreasonable.” See Sledge v. State, 312 Ga. App. 97, 103 (2)
(b) (717 SE2d 682) (2011) (noting that “trial tactics and strategy, no matter how
mistaken in hindsight, are almost never adequate grounds for finding trial counsel
ineffective unless they are so patently unreasonable that no competent attorney would
have chosen them.”). At trial, Hawkins’s counsel made clear that he was urging the
24 State to comment on Hawkins’s silence because he had discussed that aspect of the
case with her and was generally aware that she would have a response to any cross-
examination that counsel believed would be favorable with the jury. He informed the
trial court that he believed that Hawkins would testify that law enforcement had not
informed her what crimes she was charged with and that she told them, “[i]f you can’t
even tell me what I’m charged with, I’m sure my attorney wouldn’t want me to talk
to you.” Counsel further stated, “I want him to go there, and I promise you, I’ll punish
him with it in closing. I want him to go there.”6 Thus, the record clearly reflects that
his decision was based on a reasonable, knowing trial strategy, even if unwise, and
so trial counsel was not deficient for failing to object to the State’s comments on
Hawkins’s silence. See Howard, supra, 267 Ga. App. at 259 (2) (b). Compare Cheeks
v. State, 325 Ga. App. 367, 368-369 (750 SE2d 753) (2013) (trial counsel provided
deficient performance when she failed to object to extensive references to the
defendant’s silence and affirmatively testified that the failure to object was due to
“nerves” and not because of any strategic reason).
6 At the motion for new trial hearing, Hawkins’s counsel did not deny that it was strategy and said that “there was a reason for me to say it, I’m sure.”
25 (c) Hawkins argues that trial counsel was ineffective for failing to object to the
introduction of her bank records, the victims’ bank records, and her telephone
records,7 which she argues were all improperly admitted into evidence because they
were not properly authenticated.8
However, at the motion for new trial hearing, trial counsel testified that he did
not object to this documentary evidence for strategic reasons.
Counsel testified that one of his key strategies at trial was to attempt to disassociate
Hawkins from Bell and demonstrate to the jury that Hawkins was not involved with
what Bell was doing at the Windy Hill Home. Trial counsel testified that he wanted
the various bank records to be admitted into evidence because he “wanted to show Dr.
Hawkins never received a red penny, not a red cent as far as those records were
concerned.” In addition, trial counsel testified, “the phone calls were supporting our
7 The telephone records indicated that Hawkins and Bell attempted 1,400 telephone calls to each other during 2014. Inspector Isaza testified that, based on the calls that were answered, Hawkins and Bell spoke on average for 30 minutes every week. 8 Hawkins additionally argues that counsel was ineffective for failing to object to the introduction of Bell’s driver’s license and to the introduction of testimony from from an inspector from the Cobb County district attorney’s office regarding the Medicaid fraud files compiled by the office. Hawkins, however, does not provide any arguments as to how this evidence was inadmissible, and, thus, how counsel would have been ineffective for failing to object to this evidence.
26 theory that [Hawkins and Bell’s] relationship was estranged . . . we were trying to use
them to [Hawkins’s] benefit.” Accordingly, we conclude that trial counsel did not
provide ineffective assistance in this regard. See Crankshaw, supra, 336 Ga. App. at
703 (3) (b) (trial counsel was not ineffective for failing to object to certain alleged
hearsay evidence as a matter of trial tactics and strategy); Howard, supra, 267 Ga.
App. at 259 (2) (b).
(d) Hawkins further argues that trial counsel was ineffective for failing to
object to the introduction of a contact information form for Bacon that was kept by
Serene Reflections, showing that Bell referred Bacon to Serene Reflections and for
failing to object to related testimony by a doctor on staff with Serene Reflections’s
staff. However, Hawkins did not question trial counsel on this point at the motion for
new trial hearing, and “[w]ithout trial counsel’s testimony, it is extremely difficult to
overcome” the presumption that counsel’s performance “fell within a wide range of
reasonable, professional conduct.” McPetrie v. State, 263 Ga. App. 85, 92 (9) (587
SE2d 233) (2003). Moreover, there was overwhelming evidence otherwise
establishing the connections between Hawkins and Serene Reflections on the one
hand and Bell and the Windy Hill Home on the other, and so there was not “a
reasonable probability that the result of the trial would have been different” without
27 this evidence. See Crankshaw, supra, 336 Ga. App. at 702 (3). We therefore conclude
that Hawkins has not shown that trial counsel rendered ineffective assistance.
9. Finally, Hawkins argues that her convictions on Counts Eleven, Twelve, and
Thirteen for abuse of a disabled person through the deprivation of essential services
should have merged with her convictions on Counts Two, Three, and Four for the
neglect of a disabled person. We agree.
“Whether offenses merge is a legal question, which we review de novo.”
(Footnote omitted.) Mullis v. State, 321 Ga. App. 720, 721 (742 SE2d 750) (2013).
Although the issue of merger was not raised below, we “have the discretion to correct
merger errors sua sponte.” (Citation omitted.) Metcalf v. State, __ Ga. App. __ (825
SE2d 909) (2019).
Among other provisions, a crime merges into another if it “is established by
proof of the same or less than all the facts” that were required to establish the other
crime. OCGA § 16-1-6. To determine whether two distinct statutory crimes merge,
we use the required evidence test, which asks “whether each statutory provision
requires proof of a fact which the other does not. If so, then two offenses exist, and
one is not ‘included in’ the other.” (Punctuation and citation omitted.) Metcalf, supra,
___ Ga. App. at ___.
28 The crime of neglect of a disabled person occurs when a person “willfully
deprives a disabled adult . . . of health care, shelter, or necessary sustenance to the
extent that the health or well-being of such person is jeopardized.” OCGA § 16-5-101
(a). On the other hand, “[a]ny person who . . . willfully deprives of essential services
a disabled adult” shall be guilty of abuse of a disabled person. OCGA § 16-5-102 (a).
“Essential services” is defined in OCGA § 16-5-100 (5) (2013) as
social, medical, psychiatric, or legal services necessary to safeguard a disabled adult’s . . . rights and resources and to maintain the physical and mental well-being of such person. Such services may include, but not be limited to, the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, and protection from health and safety hazards.
Here, the grand jury charged in the indictment that Hawkins and her co-
conspirators committed the offense of neglect (constituting Counts Two, Three, and
Four) by “willfully depriv[ing McCargo, Wilson, and Bacon] of health care, shelter,
and sustenance to the extent that the health and well-being of such person[s] was
jeopardized.” Similarly, the grand jury charged in Counts Eleven, Twelve, and
Thirteen that Hawkins and her co-conspirators commited the offense of abuse by
“willfully depriv[ing McCargo, Wilson, and Bacon] of . . . the provision of shelter
29 that was free from health and safety hazards in and around the shelter; adequately
heated and ventilated shelter; assistance in personal hygiene, including proper bathing
and toiletry facilities; the provision of adequate clothing; the provision of adequate
and nutritionally balanced meals.”
We conclude that these offenses, at least as charged in the instant case, merge
under the required evidence test. The crime of neglect does indeed require proof of
an additional element that the crime of abuse by deprivation does not—namely, that
the deprivation be “to the extent that the health or well-being of [the victim] is
jeopardized.” OCGA § 16-5-101 (a). However, the crime of abuse by deprivation, as
charged here, does not require the proof of any additional facts that the crime of
neglect does not. All of the acts of deprivation charged in the indictment for the
counts of abuse by deprivation fell under the categories of deprivation “of health care,
shelter, and sustenance” that were used to support the convictions for neglect. See
OCGA §§ 16-5-101 (a), 102 (a). While the broad statutory definition of “essential
services” may include some services that do not fall under the categories of
deprivation listed in the statute of conviction for neglect, “the important question
[under the required evidence test] is not . . . whether the crimes have overlapping
elements, but whether, looking at the evidence required to prove each crime, one of
30 the crimes was established by proof of the same or less than all the facts required to
establish the commission of the other crime charged.” (Citation omitted.) Metcalf,
supra, ___ Ga. App. at ___. Under these circumstances, Hawkins’s convictions on
Counts Eleven, Twelve, and Thirteen for abuse by deprivation of essential services
merged into her convictions on Counts Two, Three, and Four for neglect. Thus,
Hawkins’s convictions on these counts “must therefore be vacated and the case
remanded to the trial court for resentencing.” (Citation omitted.) Mullis, supra, 321
Ga. App. at 722.
In conclusion, for the reasons provided above, we vacate Hawkins’s
convictions on Counts Eleven, Twelve, and Thirteen, and we remand for
resentencing. We affirm Hawkins’s convictions and sentence in all other respects.
Judgment affirmed in part and vacated in part and case remanded. Rickman
and Goss, JJ., concur.