                                THIRD DIVISION
                               ELLINGTON, P. J.,
                          DILLARD and MCFADDEN, 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/


                                                                         May 5, 2015




In the Court of Appeals of Georgia
 A15A0508. MOTON v. THE STATE.

      DILLARD, Judge.

      Following trial, a jury convicted Earl Moton, II, on two counts of misdemeanor

public indecency. On appeal, Moton contends that the evidence was insufficient to

support his convictions and that the trial court erred in (1) refusing to sentence him

as a first offender, (2) denying his motion for a continuance of the hearing on his

motion for new trial, and (3) denying his motion for new trial, in which he argued that

the jury verdict was not unanimous. For the reasons set forth infra, we affirm.

      Viewed in the light most favorable to the jury’s verdict,1 the evidence shows

that on May 16, 2013, Aquila Abdel-Quedus and her ten-year-old daughter went to

the Stonecrest branch of the DeKalb County Public Library to meet a close family

      1
          See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
friend, Amir Bin Yamin, who was there studying for a test. Shortly after her daughter

sat down at a desk to use one of the library’s computers, Abdel-Quedus noticed that

a young man, later identified as Moton, appeared to be observing her daughter

through the gaps in a book shelf. A few seconds later, Abdel-Quedus watched as

Moton pulled his erect penis out of his pants and began masturbating.

      Immediately, Abdel-Quedus alerted Bin Yamin to Moton’s actions. But from

his vantage point behind Moton, Bin Yamin did not see Moton’s exposed penis.

However, Bin Yamin did see that Moton was moving one of his arms back and forth

near his waist and, thus, appeared to be masturbating. And upon confronting Moton,

Bin Yamin also noticed that Moton’s pants were open. Consequently, Bin Yamin

informed one of the librarians, who then questioned Moton about his actions. In

response, Moton claimed that his underwear had become bunched so he attempted to

adjust himself, thinking no one would notice. Unpersuaded by this response, the

librarian called a police officer, who further questioned Moton regarding the incident

at the police station and received a similar explanation.

      Thereafter, the State charged Moton, via accusation, with one count of public

indecency by exposing his sexual organs in a lewd manner2 and one count of public

      2
          See OCGA § 16-6-8 (a) (2).

                                          2
indecency by making a lewd appearance in a state of partial nudity.3 And during the

ensuing trial, Abdel-Quedus, Bin Yamin, the librarian, and the police officer testified

about the incident. In addition, several witnesses, including Moton’s father, testified

as to Moton’s good character, and Moton testified in his own defense. Nevertheless,

at the conclusion of the trial, the jury found Moton guilty on both counts in the

accusation.

      Subsequently, Moton filed a motion for new trial, and the trial court scheduled

a hearing. Then, approximately one week before the hearing, Moton filed a motion

for continuance, arguing, inter alia, that he had not received a transcript of his trial.

But finding that Moton had, in fact, already received an electronic copy of the

transcript, the trial court denied Moton’s motion. After Moton filed an amended

motion for new trial, the court held the hearing on the motion as scheduled and,

ultimately, denied it. This appeal follows.

      1. Moton first contends that the evidence was insufficient to support his

convictions on the two charges of public indecency. We disagree.

      At the outset, we note that when a criminal conviction is appealed, the evidence

must be viewed in the light most favorable to the verdict, and the appellant no longer

      3
          See OCGA § 16-6-8 (a) (3).

                                           3
enjoys a presumption of innocence.4 And, of course, in evaluating the sufficiency of

the evidence, “we do not weigh the evidence or determine witness credibility, but

only determine whether a rational trier of fact could have found the defendant guilty

of the charged offenses beyond a reasonable doubt.”5 Thus, the jury’s verdict will be

upheld so long as there is “some competent evidence, even though contradicted, to

support each fact necessary to make out the State’s case.”6 With these guiding

principles in mind, we turn now to Moton’s specific claim of error.

      Under OCGA § 16-6-8 (a), a person commits the offense of misdemeanor

public indecency when he or she performs, in a public place, “[a] lewd exposure of

the sexual organs”7 or “[a] lewd appearance in a state of partial or complete nudity.”8

And here, Abdel-Quedus testified that she saw Moton pull his erect penis from his

pants and begin to masturbate. This evidence alone was sufficient to prove that

      4
          See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).
      5
       Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation
omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt. 2781, 61
LE2d 560) (1979).
      6
        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation
omitted).
      7
          OCGA § 16-6-8 (a) (2).
      8
          OCGA § 16-6-8 (a) (3).

                                          4
Moton committed the offense of public indecency by a lewd exposure of his sexual

organs and by a lewd appearance in a state of partial nudity.9

       2. Moton also contends that the trial court erred in refusing to sentence him as

a first offender under OCGA § 42-8-60. Again, we disagree.

       It is well established that the decision of whether or not to sentence a defendant

under the first-offender statute “lies entirely within the discretion of the trial court.”10

And absent some erroneous belief on the part of the trial court that the law does not

permit first offender treatment, we “presume the trial court acted properly in imposing

the sentence.”11 Indeed, to rebut this presumption there “must be a clear statement in


       9
         See Douglas v. State, 330 Ga. App. 549, 551 (1) (768 SE2d 526) (2015)
(holding that sufficient evidence existed to support conviction for public indecency
by a lewd exposure of sexual organs, when a witness noticed defendant masturbating
on a bench outside of a shopping mall and could clearly see his exposed penis);
Whitfield v. State, 259 Ga. App. 61, 61-62 (575 SE2d 899) (2002) (holding evidence
was sufficient to support conviction for public indecency when, after an altercation
in a parking lot, defendant “stood in front of the car, exposed his penis, shook it, and
told [a woman] to suck it”); see generally OCGA § 24-14-8 (“The testimony of a
single witness is generally sufficient to establish a fact . . . .”).
       10
        Freeman v. State, 328 Ga. App. 756, 762 (5) (760 SE2d 708) (2014)
(punctuation omitted); accord Tew v. State, 320 Ga. App. 127, 127 (739 SE2d 423)
(2013).
       11
         Freeman, 328 Ga. App. at 762 (5) (punctuation omitted); see Graydon v.
State, 313 Ga. App. 580, 582 (holding that trial court acted within its discretion in
denying defendant’s request for first-offender treatment when there was no indication

                                             5
the record that constitutes either a general refusal to consider such treatment or an

erroneous expression of belief that the law does not permit the exercise of such

discretion.”12

      In the case sub judice, the trial court initially expressed some doubt as to

whether it could sentence Moton as a first offender after the jury returned a guilty

verdict. However, after a brief recess, the trial court stated that based on defense

counsel’s position that first-offender treatment was within the court’s discretion, the

court would allow defense counsel to argue as to why first-offender treatment was

appropriate. Then, following argument by defense counsel and the State’s solicitor

on the issue, the trial court prefaced sentencing by stating:

      Well, the cases make it clear that I have to exercise my discretion when
      these things are requested, and that is what I’m doing. That is why I’m
      giving you an opportunity to explain to me why because I am wanting
      to and I legitimately am committed to following the law as it is stated in
      this state. The law doesn’t require me to give first offender status. It
      simply requires me to consider it, and I am considering it.


that trial court refused to consider request or erroneously believed that such was not
permited).
      12
         McCullough v. State, 317 Ga. App. 853, 853 (733 SE2d 36) (2012)
(punctuation omitted); accord Powell v. State, 271 Ga. App. 550, 551-52 (610 SE2d
178) (2005).

                                          6
The court then continued by noting that in light of the overwhelming evidence and

Moton’s arrogance, lack of remorse, and lack of credibility, it did not believe that

first-offender treatment was appropriate. Consequently, the court sentenced Moton

to ten days of incarceration with credit for one day served. Given these circumstances,

the trial court’s remarks during sentencing did not “indicate either a lack of awareness

that the court had the discretion to sentence [Moton] under the first offender statute,

that the court was applying a mechanical policy that prevented proper consideration

of the request, or that there was an outright refusal to consider the request.”13

Accordingly, the trial court did not abuse its discretion in declining Moton’s request

for first-offender treatment.14

      3. Moton further contends that the trial court erred in denying his motion for

a continuance of the hearing on his motion for new trial. Yet again, we disagree.




      13
        McCullough, 317 Ga. App. at 855; see Steele v. State, 270 Ga. App. 488, 492
(606 SE2d 664) (2004) (holding that court’s announcement that it would deny first-
offender status “[b]ased on the nature of the offense” did not indicate mechanical
sentencing policy).
      14
         See McCullough, 317 Ga. App. at 855-56 (holding that evidence showed that
trial court’s refusal to afford defendant first offender treatment was based on
deliberate consideration of the case and sentencing options and, therefore, was not an
abuse of discretion); Graydon, 313 Ga. App. at 581 (same).

                                           7
      Generally, the appellate courts of this State will not “reverse a trial court’s

decision to deny a motion for a continuance absent a showing of a clear abuse of

discretion.”15 More specifically, a motion for a continuance of the hearing on motion

for new trial is “addressed to the sound discretion of the trial judge, and in the

absence of a clear showing to the contrary, it will be presumed that such discretion

was not abused.”16 Importantly, to be entitled to a new trial based upon the denial of

a motion for a continuance, a defendant has the burden of showing that “he was

harmed by that denial.”17

      Here, as noted supra, approximately one week before the scheduled hearing on

his motion for new trial, Moton filed a motion for continuance, arguing, inter alia,

that he had not received a transcript of his trial. But in its order denying Moton’s

request for a continuance, the trial court noted that Moton had actually received an

electronic copy of the transcript four days before requesting the continuance.

Moreover, Moton had the burden of demonstrating that he was harmed by the trial



      15
           Geiger v. State, 295 Ga. 648, 651 (3) (763 SE2d 453) (2014).
      16
        Graham v. State, 107 Ga. App. 332, 333 (1) (130 SE2d 166) (1963); see
generally Boatwright v. State, 91 Ga. 13, 13 (16 SE 101) (1892).
      17
           Geiger, 295 Ga. at 651 (3) (punctuation omitted).

                                           8
court’s denial, and having reviewed the record, we cannot conclude that he has made

such a showing. Thus, the trial court did not abuse its discretion in denying Moton’s

motion for a continuance.18

      4. Finally, Moton contends that the trial court erred in denying his motion for

new trial, arguing that a poll of the jury showed that the guilty verdict was not

unanimous. Once again, we disagree.

      Under Georgia law, the privilege of polling a jury in criminal cases is “the legal

right of the defendant, and does not depend upon the discretion of the court.”19 The

purpose of polling is to ensure that “each member of the jury assents to the verdict,

and for the court to discern possible coercion.”20 Thus, a negative response to a poll

question is “enough to raise the inference that the finding of the jury was not




      18
          See Columbus v. State, 270 Ga. 658, 664-65 (4) (513 SE2d 498) (1999)
(holding that trial court did not abuse its discretion in denying defendant’s motion for
a continuance when record showed that, contrary to defendant’s contention, State did
not fail to comply with discovery duties and that defendant failed to show that denial
resulted in harm to his case).
      19
        Benefield v. State, 278 Ga. 464, 466 (602 SE2d 631) (2004) (punctuation
omitted); accord Maddox v. State, 233 Ga. 874, 876 (2) (213 SE2d 654) (1975).
      20
           Benefield, 278 Ga. at 466.

                                           9
concurred in by each of the jurors, and, this being true, there was no legal verdict.”21

Indeed, when a poll of the jury discloses that the jury was not a unanimous verdict,

the proper procedure is for “the trial court to return the jury to the jury room for

further deliberations in an effort to arrive at a unanimous verdict.”22 And it is not

“incumbent upon counsel to move the court for further deliberations.”23

      Following the verdict in this matter, Moton requested that the trial court poll

the jury, and the court agreed to do so. The first four jurors questioned all indicated

that they freely and voluntarily agreed with the guilty verdict. The court then engaged

in the following colloquy with Juror Five.

      The Court: “Juror [Five] was the verdict of guilty as to both counts your
      verdict when you were in the jury room?”


      Juror [Five]: “The first one was, yes, but not the second one.”


      The Court: “And as to the second issue, did you vote to convict on the
      second count?”



      21
        Id. (punctuation omitted); accord Ponder v. State, 11 Ga. App. 60, 61 (74 SE
715) (1912).
      22
           Benefield, 278 Ga. at 465.
      23
           Id. at 466.

                                          10
       Juror [Five]: “Yes.”


       The Court: “Is that your verdict now?”


       Juror [Five]: “Yes.”


       The Court: “Is it freely and voluntarily made by you as you sit here
       now?


       Juror [Five]: “Yes.”


       The Court: “So you are good with the verdict as it stands?


       Juror [Five]: “Well, can you explain because —“


       The Court: “You just need to answer the question.”


       Juror [Five]: “Yes.”


       On appeal, Moton argues that Juror Five’s initial response to the trial court

indicates that the verdict was not unanimous and, therefore, that the trial court erred

by failing to instruct the jury to continue its deliberations. But while not entirely clear,

the most logical interpretation of Juror Five’s response to the court’s first question

shows that she may not have initially voted to convict on the second count at the



                                            11
beginning of deliberations. Nevertheless, upon further questioning, she responded

affirmatively when asked whether she did vote to convict (i.e., in the past tense and,

thus, in the jury room), whether she ultimately agreed with the verdict in its entirety,

and whether she did so freely and voluntarily. And given her subsequent affirmations

of the verdict, the juror’s initial equivocation regarding the second count does not

support an inference that the verdict was less than unanimous.24 Accordingly, the trial

court was not required to instruct the jury to continues its deliberations.

      For all of the foregoing reasons, Moton’s convictions are affirmed.

      Judgment affirmed. McFadden, J., concurs. Ellington, P. J., concurs in

judgment only.




      24
         See Wesby v. State, 300 Ga. App. 597, 600 (3) (685 SE2d 495) (2009)
(holding that trial court was not required to instruct the jury to continue deliberations
because despite juror’s initial indication that the verdict was not hers, she
unequivocally affirmed the verdict in response to additional questions).

                                           12
