FIFTH DIVISION

MCFADDEN, P. J.,

BROWN and MARKLE, 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

December 11, 2023

In the Court of Appeals of Georgia

A23A1278. NELSON v. THE STATE.

MCFADDEN, Presiding Judge.

A jury found Donna Nelson guilty of two counts of first degree forgery in

violation of OCGA § 16-9-1 (b) and two counts of making a false statement in

violation of OCGA § 16-10-20 in connection with her efforts to obtain title to real

and personal property that had been owned by Sidney Jones before his death in 2020.

She was tried jointly with three co-defendants. 

After jury deliberations began and the jury deadlocked eleven to one as to two

of the defendants, the trial court removed a juror and replaced her with an alternate.

Nelson arguesthat this wasreversible error. We agree, because the record showsthat

the trial court’sinquiry into the juror’s alleged incapacity did not establish a sufficient
factual basis upon which the trial court could exercise judicial discretion to remove

the juror. So we reverse.

Because the evidence was sufficient to support Nelson’s convictions, she may

be retried. We do not reach Nelson’s other claims of error because they are not likely

to recur on retrial.

1. Facts

Viewed in the light most favorable to the verdicts, the evidence at trial showed

that Sidney Jones passed away on April 3, 2020, without a will. Nelson had metJones

in 2017 and lived with him off and on before his death. 

After Jones died, Nelson remained living in his house and did not cooperate

with the administrator of his estate. Instead, Nelson submitted to various

governmental entities several documents falsely indicating that Jones had given her

the house, a vehicle, and a pontoon boat. These submissions included a quitclaim

deed for Jones’s house and a bill of sale for his pontoon boat; both documents

appeared to bear Jones’s signature, but an expert witness opined that the signatures

were forgeries. These submissions also included an affidavit of inheritance falsely

stating that Nelson had inherited a vehicle from Jones, and an application to register

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the pontoon boat in her name based on the forged bill of sale; Nelson signed both

documents. These submissionsformed the basis of the state’s charges against Nelson. 

In addition, the state presented other acts evidence that Nelson filed with the

probate court a petition to probate a will purporting to leave all of Jones’s property

to her. That document, a handwritten affidavit, appeared to bear Jones’ssignature, but

an expert witness opined that the signature was a forgery. 

The state charged Nelson with two counts of forgery in the first degree

pertaining to the quitclaim deed and the boat’s bill of sale; and two counts of making

false statements pertaining to Nelson’s application to change the boat’s registration

and her submission of the affidavit of inheritance to obtain title to the vehicle. The

state charged Nelson’s co-defendants with being parties to the forgeries. (Codefendant Mark Cain prepared and notarized the forged quitclaim deed and notarized

the forged bill of sale for the boat. Co-defendants Mary Stephens and Cynthia Padgett

witnessed the forged quit-claim deed. )

2. Removal of a juror during deliberations

After the jury began deliberating, the trial court removed a juror — identified

in the record as Juror White — and replaced her with an alternate. OCGA § 15-12-

172 permits a trial court to replace a juror with an alternate if, among other reasons,

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the juror “upon . . . good cause shown to the court is found to be unable to perform

[her] duty[.]” While a “trial court generally has broad discretion to remove a juror for

cause[,] . . . this discretion is narrowed once deliberations have begun[.]” Jones v.

State, 314 Ga. 214, 222 (2) (b) (875 SE2d 737) (2022). Nelson argues that the trial

court abused his discretion when he removed Juror White after deliberations had

begun, and we agree.

A trial court must have a sound basis upon which to exercise his discretion in

removing a juror. Moon v. State, 312 Ga. 31, 36 (2) (860 SE2d 519) (2021). If “the

basis for the juror’s incapacity is not certain or obvious,some hearing or inquiry into

the situation is appropriate to the proper exercise of judicial discretion.” Id. at 37 (2)

(citation and punctuation omitted). When the jury is deadlocked after beginning

deliberations, “the trial court ha[s] a heightened responsibility to perform a thorough

investigation into the circumstancessurrounding the juror’s decision-making. . . .” Id.

at 45 (2) (b).

A trial court abuses his discretion if he does not engage in a sufficient inquiry

to develop facts that show a permissible basis for removal. See Jones, 314 Ga. at 225

(2) (b). It is not permissible for the trial court to remove a juror “for reasons related

to the juror’s view of the trial evidence[.]” Id. at 223 (2) (b). See Mills v. State, 308

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Ga. 558, 562 (2) (842 SE2d 284) (2020) (the fact that a juror “had reached a

conclusion different from that of the other jurors did not show that she was

incapacitated or legally unfit to serve”).

The record in this case shows that the trial court first learned of an issue with

Juror White through a series of notes from the jury. Those notes indicated that the

jury was deadlocked eleven to one as to two of the four defendants. One of the notes

stated that the holdout juror held a belief that two of Nelson’s co-defendants,

Stephens and Padgett, had been “manipulated due to mental state[.]” The trial court

instructed the jury to continue deliberating and not to consider “manipulation due to

mental state” because that issue was not before them, but when the foreperson later

reported that the jury was not making any headway, the trial court spoke to all of the

jurors individually. 

The trial court’sinquiry revealed that the jury had reached unanimous verdicts

as to two of the four defendants, but that Juror White was not participating in the

deliberations asto the other two defendants, presumably Stephens and Padgett. Some

of the jurors either implied or expressly stated that Juror White initially had

participated in deliberations but atsome point had stopped deliberating. One of those

jurorssuggested that the reason for Juror White’s actions wasthat “[s]he cannot make

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this decision because of the person’s mental state.” Other jurors simply responded

affirmatively when the trial court asked them if a juror either had not deliberated or

was not deliberating. (The trial court varied the tense used in his questions. ) Juror

White told the trial court that she felt she had participated in the deliberations as to

all four defendants and that the other jurors “just don’t like my answer.” 

Over the objection of Nelson’s counsel, the trial courtremoved Juror White and

replaced her with an alternate. After doing so, the trial court asked the remaining

jurors, “[w]as the juror I removed not participating in deliberations,” and the jurors,

as a group, responded affirmatively. The trial court did not set forth his reasons for

the removal in a written order, but he stated on the record that he removed Juror

White because the foreperson of the jury had made him aware that the juror “was not

participating based on a reasoning that the court had not used,” because she “did not

follow the instructions of the court,” and because “eleven jurors ha[d] told [the trial

court] she was not participating.” 

This record did not provide the trial court with a sufficient basis upon which

to exercise his discretion in removing Juror White. As stated above, “[a] juror may

not be removed for reasons related to the juror’s view of the trial evidence, even if the

juror’s insistence on that view has negative effects on other jurors and the jury’s

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deliberations.” Jones, 314 Ga. at 223 (2) (b). Before removing a juror, a trial court

must develop sufficient facts “to conclude with confidence that the reason for

removal was unrelated to the juror’s view of the evidence.” Id. at 225 (2) (b). The trial

court did not elicit adequate facts through his inquiry to meet this requirement.

The fact that “eleven jurors [had] told [the trial court that Juror White] was not

participating” in deliberations does not, without more inquiry, support the removal.

A trial court may not remove a juror for failing to deliberate if the juror initially

participated in deliberations but then “reached a firm conclusion as to the counts

before the jury and declined to deliberate further.” Jones, 314 Ga. at 227 (2) (b). This

is true even if the juror reaches that firm conclusion shortly after the start of

deliberations. See id. at 230 (2) (b) n. 16.

Nothing in the record before us shows that Juror White refused from the outset

to participate in deliberations. Instead, some of the facts elicited by the trial court

show the contrary. The jury’s notes indicate that Juror White participated in votes on

all of the defendants. Juror White stated that she had participated in deliberations but

that the other jurors did not like her conclusions. And none of the other jurors stated

that Juror White had refused to participate in any of the deliberations. Some of them

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expressly stated or implied thatJuror White had initially participated in deliberations,

and the others did not address that issue one way or the other.

A comment by the trial court during the midst of his inquiry suggests that he

believed Juror White only participated in the deliberations as to two of the four

defendants. This may have been the case, but again, no juror actually said so, the

jury’s note stating that they were deadlocked eleven to one on the remaining

defendants suggests otherwise, and the trial court’s inquiry did not clarify that point.

The trial court’s other expressed reasonsfor removing Juror White are also not

supported by the facts developed in the trial court’sinquiry. The trial courtstated that

Juror White “was not participating based on a reasoning that the court had not used”

and thatshe “did not follow the instructions of the court[.]” From the context we infer

that the trial court was referring to Juror White’s alleged concerns about the “mental

state” of two of Nelson’s co-defendants and the trial court’s instruction that the jury

not consider that issue. For the purpose of our analysis we assume without deciding

that it was appropriate for the trial court to remove the issue of the defendants’

“mentalstate” from the jury’s consideration and we assume without deciding that the

trial court was allowed to remove a juror for nevertheless considering “mental state”

in reaching an opinion on the counts presented. Even so, the trial court did not

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question Juror White about whether she stopped participating in deliberations based

on concerns about some defendants’ “mental state.” Instead, the trial court appears

to have relied on statements made by other jurors, either during questioning or in

notes. Those accounts from jurors other than Juror White did not provide the trial

court with an adequate basisfor concluding thatJuror White had disregarded the trial

court’s instructions or otherwise acted improperly during deliberations. See Moon,

312 Ga. at 48-50 (2) (b).

For these reasons, we find that from the information in the record, the trial

court did not have grounds to “conclude with confidence that the reason for removal

was unrelated to the juror’s view of the evidence.” Jones, 314 Ga. 225 (2) (b).

Consequently, “the trial court’s basisfor dismissing [Juror White] was unsound” and

her removal was an abuse of discretion. Moon, 312 Ga. at 49 (2) (b).

We are not persuaded by the state’s argument that this error was harmless.

“[R]emoving a dissenting juror when the jury is deadlocked risks violating a

defendant’s right to a unanimous verdict[.]” Moon, 312 Ga. at 37 (2). The state’s

assertion that the error only affected two of Nelson’s co-defendants rests on

speculation as to what would have happened had Juror White remained on the jury.

The state cites no authority, and we have found none, that permits a harmless error

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analysis when a trial court has improperly removed a juror after deliberations have

begun. To the contrary, our Supreme Court has held that this type of error is

“presumed harmful.” Id. at 31. See State v. Arnold, 280 Ga. 487, 489 (629 SE2d 807)

(2006) (“Dismissal of a juror without any factual support or for a legally irrelevant

reason is prejudicial.”); see also Mills, 308 Ga. at 560 (2). “Because the trial court

abused [his] discretion in removing [Juror White] from the jury, we conclude that

[Nelson’s] convictions must be reversed.” Jones, 314 Ga. at 231 (2) (b). Accord

Moon, 312 Ga. at 50 (2) (b).

3. Retrial

Although Nelson does not contest the legal sufficiency of the evidence

supporting her conviction, we nevertheless consider whether the evidence presented

at trial was sufficient to permit Nelson to be retried. See O’Brien v. State, 366 Ga.

App. 248, 250 n. 1 (881 SE2d 710) (2022). Having reviewed the record in the light

most favorable to the verdicts, we conclude that “the evidence presented at trial and

summarized above was sufficient to authorize a rational jury to find [Nelson] guilty

beyond a reasonable doubt of the crimes for which [she] was found guilty. See

Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).” Mills,

308 Ga. at 559 (1). So Nelson may be retried.

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4. Remaining enumerations of error

Nelson asserts several other enumerations of error, regarding whether the trial

court should have granted Nelson a mistrial in connection with the jury deliberation

issue and whether the trial court should have taken action in response to an alleged

conflict of interest in defense counsel’s joint representation of all four co-defendants

which arose out of the juror deliberation issue. These claims are unlikely to recur on

retrial, and would appear in a different form if they do recur, so we do not address

them.

Judgment reversed. Brown and Markle, JJ., concur.

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