Steven Seibert v. State

• Court: Court of Appeals of Georgia
• Decided: March 8, 2013
• Docket: A12A2491
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN , 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

March 8, 2013

In the Court of Appeals of Georgia A12A2491. SEIBERT v. THE STATE.

MCFADDEN, Judge.

Steven Seibert appeals his conviction of aggravated stalking. He argues that the

evidence does not support the conviction. We agree and therefore reverse.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012). So viewed, the record shows that Leslie Swords and Seibert were married for

fourteen and one-half years before they divorced in 1998. In 1999, Swords was

granted a permanent restraining order against Seibert because of his harassing

behavior, which included repeated phone calls, unannounced visits, parking outside

her house and watching the house, leaving items on the doorstep, and entering her

house without permission. The restraining order prohibited Seibert from having any

contact whatsoever with Swords. Nonetheless, Seibert continued to contact Swords,

so she moved to another county without telling Seibert. Within a couple of months,

he began contacting Swords at her new address. Eventually, Swords moved back to

Gwinnett County, again not telling Seibert. He began contacting her. Swords

contacted the district attorney’s office, the police and the sheriff’s office. In 2007, the

court sentenced Seibert for certain crimes, and as part of his sentence, Seibert again

was ordered to have no contact whatsoever, either directly or indirectly, with Swords,

their children, and Swords’ family.

In 2010, Seibert filed a pro se, civil action against Swords. She took the

complaint to the Gwinnett County District Attorney’s office. John Warr, an assistant

district attorney, filed a motion to intervene in the civil action, not as Swords’

2 attorney, but as a representative of the state, which, Warr believed, had an interest in

the civil action.

In October 2010, Seibert sent Warr several documents, which Warr received

at his office. Included in the documents was a letter from Seibert to Swords in care

of Warr. Seibert also included a letter to Warr, asking him to deliver the letter to

Swords “in accordance with the law, via fax or otherwise, as her representative

counsel.” Warr reported his receipt of the letter to the chief assistant district attorney

because he thought it was a violation of prior court orders. The state presented no

evidence that Swords ever received the letter.

The state indicted Seibert for committing two counts of aggravated stalking by

contacting Swords “by mailing a letter to a third party with a specific request to

deliver said letter” to her for the purpose of harassing and intimidating her, in

violation of the permanent restraining order and a probation condition in the 2007

sentence. The jury returned guilty verdicts on both counts, and the court entered a

judgment of conviction, merging the counts and sentencing Seibert to ten years in

prison. After the court denied his motion for new trial, Seibert filed this appeal.

OCGA § 16-5-91 (a) provides that a person commits aggravated stalking when

that person,

3 in violation of a . . . permanent restraining order . . . or . . . condition of probation . . . contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

Although the aggravated stalking statute does not define the terms “contact” or “place

or places,” the simple stalking statute does. See OCGA § 16-5-90 (a) (1). The

definitions contained in the simple stalking statute are applicable here, because the

legislature has made clear that the simple stalking statute defines terms “[f]or

purposes of [the entire] article [on stalking in the Georgia Code].” OCGA § 16-5-90

(a) (1). See State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010).

OCGA § 16-5-90 (a) (1) defines the term “contact” to mean “any

communication including without being limited to communication . . . by mail. . . .”

It defines the terms “place or places” to “include any public or private property

occupied by the victim other than the residence of the defendant.” Id. The statute also

provides that “the place or places that contact . . . is deemed to occur shall be the

place or places where such communication is received.”

Based on the plain terms of the stalking statutes, aggravated stalking can be

committed when a person, in violation of a permanent restraining order or a condition

of probation, contacts the victim by mail at any public or private property occupied

4 by the victim. “To ‘contact’ is readily understood by people of ordinary intelligence

as meaning to get in touch with; communicate with.” (Citation and punctuation

omitted.) Johnson v. State, 264 Ga. 590 (1) (449 SE2d 94) (1994). The state presented

no evidence that Seibert “got in touch with” or “communicated with” Swords; the

state presented no evidence that she even was aware of the letter.

The state argues that contact through a third party can be a violation of the

aggravated stalking statute. But in the cases it cites, actual contact was made with the

victim, whether directly by the defendant or indirectly by the defendant through a

third party. See Louisyr v. State, 307 Ga. App. 724 (706 SE2d 114) (2011) (in

violation of protective order prohibiting defendant from having any contact with his

wife or from coming within 500 feet of her residence, defendant went to the hotel

where his wife and children were staying, went to their room, called his daughter’s

name, used a key to try to enter the room, was thwarted by the safety chain and his

wife and daughter’s pushing against the door, so reached his hand inside and

attempted to remove it); Davidson v. State, 295 Ga. App. 702 (673 SE2d 91) (2009)

(defendant convinced victim’s friend to use the three-way feature of her telephone

service to connect him with the victim, who spoke with defendant); Holmes v. State,

291 Ga. App. 196 (661 SE2d 603) (2008) (in addition to leaving mail for his wife at

5 his mother-in-law’s house and having a fellow inmate send letters to his three-year-

old daughter, defendant made numerous phone calls to his wife, sent her e-mails and

followed her and her family in his car, in violation of order prohibiting contact with

wife and family).

Here, however, the state failed to prove that there was actual contact with

Swords, whether through a third party or otherwise. Indeed, the Georgia Supreme

Court has held that an attempt to contact another person, precisely the conduct with

which the state charged Seibert, is to attempt to stalk. State v. Rooks, 266 Ga. 528,

529 (2) (468 SE2d 354) (1996).

The state also failed to prove that Seibert’s communication was made at a

“public or private property occupied by the victim.” Under the statutes, the contact

was deemed to have occurred at the district attorney’s office, where Warr received the

letter; there was no evidence that Seibert contacted Swords at a place occupied by

Swords, as the plain terms of the statutes require.

Judgment reversed. Barnes, P. J., and McMillian, J., concur.