GA Code § 16-11-39.1 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 11 - Offenses Against Public Order and Safety|Article 2 - Offenses Against Public Order|§ 16-11-39.1. Harassing Communications; Venue; Separate Offenses; Impact on Free Speech

  A person commits the offense of harassing communications if such person:   Contacts another person repeatedly via telecommunication, e-mail, text messaging, or any other form of electronic communication for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person;   Threatens bodily harm via telecommunication, e-mail, text messaging, or any other form of electronic communication;   Telephones another person and intentionally fails to hang up or disengage the connection; or   Knowingly permits any device used for telecommunication, e-mail, text messaging, or any other form of electronic communication under such person's control to be used for any purpose prohibited by this subsection.     Any person who commits the offense of harassing communications shall be guilty of a misdemeanor.   The offense of harassing communications shall be considered to have been committed in the county where:   The defendant was located when he or she placed the telephone call or transmitted, sent, or posted an electronic communication; or   The telephone call or electronic communication was received.     Any violation of this Code section shall constitute a separate offense and shall not merge with any other crimes set forth in this title.   This Code section shall not apply to constitutionally protected speech.     (Code 1981, §16-11-39.1, enacted by Ga. L. 1995, p. 574, § 3; Ga. L. 2015, p. 203, § 2-1/SB 72.)   Cross references.   - Free speech, U.S. Const., amend I.   Law reviews.   - For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001). For annual survey on criminal law, see 68 Mercer L. Rev. 93 (2016).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under Code Section 16-11-39, as it read prior to the 1995 amendment, are included in the annotations for this Code section.   Constitutionality.    - O.C.G.A. §§ 16-11-39.1 and46-5-21 which prohibit telephone calls for purpose of harassing are clear and can be readily understood by people of ordinary intelligence seeking to avoid their violation, and therefore these sections are not unconstitutionally vague or broad and do not violate due process. Constantino v. State, 243 Ga. 595, 255 S.E.2d 710, cert. denied, 444 U.S. 940, 100 S. Ct. 293, 62 L. Ed. 2d 306 (1979) (decided under § 16-11-39, prior to 1995 amendment).   Statute does not provide private remedy.    - In a case in which a car buyer appealed a district court's entry of summary judgment in favor of a lender, O.C.G.A. § 16-11-39.1, Georgia's criminal harassment statute addressing harassing telephone calls did not provide for a private remedy. Goia v. Citifinancial Auto, 499 Fed. Appx. 930 (11th Cir. Dec. 3, 2012)(Unpublished).   Accusation not defective.    - When the accusation mistakenly cited the statute dealing with disorderly conduct, instead of the harassing phone call statute, it was not fatally defective because the accusation properly described the elements of the crime charged. Corsini v. State, 238 Ga. App. 383, 519 S.E.2d 39 (1999).   Lesser included offense of terroristic threats.    - Depending on the facts, harassing telephone calls may be an included offense of terroristic threats. Todd v. State, 230 Ga. App. 849, 498 S.E.2d 142 (1998).   Alternative ways of telephone harassment.    - Former paragraph (4) demonstrated that a person may commit the offense of "harassing phone calls" in separate and alternative ways. Hazelton v. State, 200 Ga. App. 61, 406 S.E.2d 569 (1991) (decided under former § 16-11-39).   Allowing use of phone under defendant's control.    - Defendant, who was charged with committing the offense of harassing phone calls by repeatedly telephoning the victims personally, could not be convicted of the offense of harassing phone calls on the theory that the defendant knowingly permitted a telephone under the defendant's control to be used for the purpose of harassing one of the victims. Hazelton v. State, 200 Ga. App. 61, 406 S.E.2d 569 (1991) (decided under § 16-11-39, prior to 1995 amendment).   Communication of threats by telephone.    - Felonious threats under O.C.G.A. § 16-11-37(a) are not reduced to misdemeanor because those threats are communicated by telephone. Usher v. State, 143 Ga. App. 843, 240 S.E.2d 214 (1977) (decided under § 16-11-39, prior to 1995 amendment).   Plaintiff failed to show that it was entirely unreasonable for the sheriff's deputy to believe, under the particular circumstances, that the deputy had probable cause to arrest the plaintiff for making harassing phone calls and terroristic threats. Plaintiff did not contend that the alleged phone calls, assuming the calls were made and without regard to the identity of the caller, do not arguably establish the elements of both statutes: (1) repeated communications for the purpose of harassment, and (2) a threat to burn or damage the victims's house with the intention of terrorizing the victim. Taylor v. Taylor, 649 F.3d 737 (11th Cir. 2016)(Unpublished).   Evidence of previous conflict admissible to show intent.    - Trial court did not abuse the court's discretion in allowing evidence of the previous conflict between the defendant and the condominium association because the testimony was relevant to whether the defendant made telephone calls with the intent of harassing the victim in violation of O.C.G.A. § 16-11-39.1(a) and only incidentally reflected on the defendant's character. Bozzuto v. State, 276 Ga. App. 614, 624 S.E.2d 166 (2005).    Crime is committed whenever one repeatedly places telephone calls to another person with the specific intent described, regardless of whether the caller speaks to the victim. Harris v. State, 190 Ga. App. 805, 380 S.E.2d 345 (1989) (decided under § 16-11-39, prior to 1995 amendment).   Sexual propositions by unidentified caller as offensive to reasonable person's sense of decency.    - In prosecution for obscene phone calls, jury could properly find that statements over telephone - that "I want to get between your legs," and "I want to get in bed with you" - which were made unidentified and unprovoked on two occasions, would clearly offend a reasonable person's sense of decency. Grantham v. State, 151 Ga. App. 707, 261 S.E.2d 445 (1979) (decided under § 16-11-39, prior to 1995 amendment).   Single telephone call insufficient.    - When the prosecution alleged that a certain date was a material element of the charge, evidence of only one telephone call on that date was insufficient to convict for repeated telephoning under the harassing phone call statute. Sarver v. State, 206 Ga. App. 459, 426 S.E.2d 48 (1992), overruled on other grounds, Whittle v. State, 210 Ga. App. 841, 437 S.E.2d 842 (1993) (decided under § 16-11-39, prior to 1995 amendment).   Single telephone call sufficient.    - Language of the statute shows that a person can be charged with committing the offense by conduct constituting either a single telephone call that threatens bodily harm or repeated calls for the purpose of annoying, harassing, or molesting another. State v. Mack, 231 Ga. App. 499, 499 S.E.2d 355 (1998).   Evidence sufficient to support conviction.    - See Boyd v. State, 200 Ga. App. 591, 409 S.E.2d 44, cert. denied, No. S91C1482, 1991 Ga. LEXIS 584 (Ga. Sept. 6, 1991).(decided under § 16-11-39, prior to 1995 amendment); Hall v. State, 226 Ga. App. 380, 487 S.E.2d 41 (1997); Corsini v. State, 238 Ga. App. 383, 519 S.E.2d 39 (1999); Moss v. State, 245 Ga. App. 811, 538 S.E.2d 876 (2000);.    Evidence was sufficient to support defendant's conviction for making harassing telephone calls regarding the five calls defendant made to the victim seeking payments on a loan that defendant's finance company had made to the victim, as the evidence showed defendant called the victim repeatedly for the purpose of threatening the victim, that defendant did threaten the victim with bodily harm, and that the victim was frightened by the threatening nature of the calls. Sams v. State, 271 Ga. App. 617, 610 S.E.2d 592 (2005).    Evidence supported the defendant's conviction under O.C.G.A. § 16-11-39.1(a) because the state presented sufficient evidence that the defendant repeatedly called the victim despite the victim's insistence not to do so, during which calls the defendant placed fear in the victim by being verbally abusive through the use of profanity and threats of bodily harm. Kilby v. State, 289 Ga. App. 457, 657 S.E.2d 567 (2008).    Sufficient evidence supported a defendant's conviction under O.C.G.A. § 16-11-39.1(a) for harassing phone calls because only a single telephone call was necessary as the call threatened the victim with language that implied bodily harm; the defendant's message stated that the defendant wanted the victim to die and that there would be a car accident. Williams v. State, 296 Ga. App. 707, 675 S.E.2d 596 (2009).    Defendant's conviction was affirmed because there was sufficient evidence for the trial judge to have found beyond a reasonable doubt that the defendant placed telephone calls to the girlfriend for the purpose of harassing her in violation of O.C.G.A. § 16-11-39.1. Turnbull v. State, 317 Ga. App. 719, 732 S.E.2d 786 (2012).    There was sufficient evidence to authorize the jury to find that the defendant had committed the crime of making harassing communications including evidence that the defendant repeatedly emailed the victim, despite the victim's insistence that the defendant stop and despite acknowledging that the victim found the emails, containing comments or attached photographs or documents that implied the defendant might harm the victim or the victim's family, harassing. Maynard v. State, 355 Ga. App. 84, 842 S.E.2d 532 (2020).   Jury instructions.    - When the defendant's defense to the charge of terroristic threats was that the defendant never made any threats or intimidating remarks at all, the trial court did not err in refusing to give the defendant's request for an instruction on the offense of harassing telephone calls. Todd v. State, 230 Ga. App. 849, 498 S.E.2d 142 (1998).    Trial court did not err in the court's charge to the jury on the insignificance of the word "solely" as used in the accusation against defendant charging defendant with harassment, because the state, pursuant to O.C.G.A. § 16-11-39.1(a), was only required to prove that defendant made repeated calls for the purpose of harassing the victim, not solely for the purpose of harassing the victim. Roseberry v. State, 251 Ga. App. 856, 554 S.E.2d 816 (2001).   Sentence not excessive.    - While a defendant provided no statutory or legal authority for a claim that the sentence for the defendant's conviction for harassing phone calls under O.C.G.A. § 16-11-39.1(a) was excessive and thus abandoned the claim under Ga. Ct. App. R. 25(c)(2), the defendant's sentence of 12 months probated, 240 hours of community service, completion of an anger management counseling program, no contact with the victim, and a $500 fine was within the range provided in O.C.G.A. § 17-10-3(a)(1). Williams v. State, 296 Ga. App. 707, 675 S.E.2d 596 (2009).    Cited in Northington v. State, 287 Ga. App. 96, 650 S.E.2d 760 (2007).   RESEARCH REFERENCES   ALR.   - Validity, construction and application of Telephone Consumer Protection Act (47 USCS § 227), 132 A.L.R. Fed. 625.   Validity, construction and application of Telephone Consumer Protection Act (47 U.S.C.A. § 227) - state cases, 77 A.L.R.6th 1.   Unsolicited calling and Messaging Under Communications Act of 1934, as Amended by Telephone Consumer Protection Act of 1991, as Amended, (TCPA) (47 U.S.C.A. § 227) and Regulations Thereunder (47 C.F.R. § 64.1200) - Federal Cases, 52 A.L.R. Fed. 3d 1.