                              SECOND DIVISION
                                DOYLE, C. J.,
                          MILLER, P. J., and REESE, J.

                    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


                                                                      April 21, 2017




In the Court of Appeals of Georgia
 A17A0531. DOWDA v. THE STATE

      MILLER, Presiding Judge.

      Following a jury trial, Cody W. Dowda was convicted of criminal trespass.

(OCGA § 16-7-21 (b) (1)).1 Dowda appeals from the denial of his motion for new

trial, contending that (1) the evidence was insufficient to support his conviction; (2)

the trial court erred in admitting hearsay and character evidence; and (3) the trial

court erred in failing to allow defense counsel to read and respond to a jury note

which evidenced juror confusion. As set forth herein, the evidence was sufficient to

sustain Dowda’s conviction for trespass and the admission of any hearsay was

harmless; however, the trial court was required to give defense counsel an


      1
        The jury acquitted Dowda of an additional misdemeanor charge of attempted
theft by taking firewood (OCGA §§ 16-4-1 and 16-8-2).
opportunity to review the jury note and to suggest an appropriate response. Because

the trial court failed to do so, we reverse Dowda’s trespass conviction. We note,

however, that the State is entitled to retry Dowda because the evidence supported his

conviction.

      Viewed in the light most favorable to Dowda’s conviction,2 the evidence

showed that the victim lived with her daughter and granddaughter in Douglas County.

On September 23, 2014, the victim’s granddaughter saw a white pick-up truck back

up onto the victim’s property and stop about “two steps” from a woodpile the victim

kept on her property about 25 yards from the roadway. The granddaughter saw

Dowda, who was wearing a bright orange shirt, standing by the right side of the

truck’s tailgate, “pretty close” to the wood pile.

      The granddaughter then phoned her mother and said that there were two people

in a truck backed up to the victim’s firewood pile. The victim and her daughter came

running out of the house and saw the white pick-up on her property with the tailgate

up against her woodpile. The truck did not appear to be stuck.

      The victim and her daughter saw the truck pull out, drive up the street, turn

onto another road, and stop. Two “boys” were inside the truck at that time, and one

      2
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                           2
of them had dark hair and was wearing a bright orange shirt. Shortly thereafter, the

boys abandoned the truck on a nearby street.

        The victim called 911 and when the investigating officer arrived she went over

to where the truck was parked. The investigating officer determined that the truck

belonged to Dowda’s father, who lived nearby. The officer then went to Dowda’s

home and told Dowda’s father that the truck had been impounded. The father called

Dowda, and the officer spoke with Dowda on the phone and asked him to return

home.

        Dowda arrived at his home on foot about five to ten minutes later wearing a

bright orange shirt, and he told the officer that the truck had broken down. The officer

testified that there were tire tracks in the victim’s grass going from the street curb up

to five feet from the woodpile, and that the tire tracks were inconsistent with a

broken-down vehicle.

        Dowda was accused of criminal trespass and criminal attempt to commit a

misdemeanor (theft by taking). Following a jury trial, he was convicted of the

criminal trespass count, but acquitted of the criminal attempt count. Dowda now

appeals.



                                           3
      1. On appeal, Dowda contends that the evidence was insufficient to support his

conviction for criminal trespass. We disagree.

       A person commits the offense of criminal trespass when he “knowingly and

without authority. . . [e]nters upon the land or premises of another person . . . for an

unlawful purpose[.]” OCGA § 16-7-21 (b) (1).

      Here, the victim’s granddaughter saw Dowda back the truck onto the victim’s

property and stop it next to the woodpile, and Dowda fled in the truck and abandoned

it on a nearby street right after he was spotted by the victim and her daughter.

Moreover, Dowda’s explanation that the truck had broken down was inconsistent

with the tire tracks on the victim’s property, as well as the witnesses’ testimony that

the truck did not appear to be stuck. This evidence authorized the jury to find that

Dowda knowingly and without authority backed the white pickup truck onto the

victim’s property for the unlawful purpose of taking the victim’s firewood.3


      3
        We note that the jury was entitled to conclude that Dowda committed the
offense of trespass, even though it acquitted him of the charge of attempted theft,
because Georgia has abolished the inconsistent verdict rule. See Jamale v. State, 302
Ga. App. 140, 143 (2) (a) (690 SE2d 420) (2010) (jury could have concluded that
defendant committed robbery by intimidation even while it acquitted him of theft);
Matthiessen v. State, 277 Ga. App. 54, 56-57 (4) (625 SE2d 422) (2005) (defendant’s
acquittal on theft by deception charge did not require reversal of his conviction for
theft by taking).

                                           4
Consequently, the evidence was sufficient to support Dowda’s conviction for criminal

trespass. See Harris v. State, 222 Ga. App. 56, 57 (1) (473 SE2d 229) (1996)

(evidence that defendant was found walking up the stairs of a burglarized fraternity

house at 3:00 a.m. was sufficient to support a finding of unlawful purpose in support

of his conviction for criminal trespass); Smith v. State, 226 Ga. App. 150, 151 (1)

(485 SE2d 538) (1997) (evidence that a man matching defendant’s description had

chiseling tools and left a building shortly after the building’s door was chiseled open

was sufficient to support his criminal trespass conviction).

      2. In two enumerations of error, Dowda also contends that the trial court

erroneously admitted hearsay evidence at his trial. Specifically Dowda argues that the

trial court erred in allowing (1) the victim to testify about her granddaughter’s phone

call, and (2) the officer to testify about Dowda’s father’s demeanor when the officer

told the father why he had to impound the truck. Because these alleged errors could

recur on retrial, we address them here. Nevertheless, we find no reversible error as to

these enumerations.

      a. The Victim’s Testimony

      Any error in admission of the victim’s testimony about the granddaughter’s

phone call was harmless because the victim’s testimony was cumulative of the

                                          5
testimony of both the daughter and the granddaughter about that same call. Moreover,

Dowda did not object to the daughter’s or the granddaughter’s testimony at trial, and

he does not challenge their testimony on appeal. Consequently, Dowda has not shown

reversible error in the admission of the victim’s testimony. Rutledge v. State, 298 Ga.

37, 40 (2) (779 SE2d 275) (2015) (any error in admitting out-of-court statement was

harmless because it was cumulative of other evidence admitted at trial).

      b. The Officer’s Testimony

      Dowda argues that the trial court erred in admitting the officer’s testimony

regarding the demeanor of Dowda’s parents on the ground that this testimony

constituted improper hearsay.4 We disagree.

      Here, the investigating officer testified that he identified Dowda’s father as the

owner of the abandoned truck, and he went to Dowda’s home and met with Dowda’s

parents. The officer then testified that, when he told the parents that the truck had to

be towed, they “were not shocked. They made it sound like this was something very

plausible that their son could have been involved in. They were upset that the truck


      4
       Dowda also argues that the officer’s testimony constituted improper character
evidence. At trial, however, Dowda raised only a hearsay objection to that testimony.
Consequently, Dowda has waived this argument on appeal. Geiger v. State, 295 Ga.
648, 653 (4) (b) (763 SE2d 453) (2014).

                                           6
had to be towed.” Even if the trial court erroneously admitted the officer’s testimony

about the parents’s demeanor, it is highly probable that it did not contribute to the

jury’s verdict in light of the eyewitness testimony and other cumulative evidence

presented against Dowda in this case. See Glispie v. State, 300 Ga. 128, 132 (1) (793

SE2d 381) (2016).

      3. Dowda also contends that the trial court erred in failing to allow defense

counsel to read and respond to a note the jury sent out during its deliberations that

clearly showed that the jury was confused and had not reached a unanimous verdict.

We agree, and consequently we reverse Dowda’s trespass conviction.

      Here, the record shows that, after about three hours of deliberation, the trial

judge received a note from the jury, which stated: “Sir, we cannot reach a unanimous

decision[.]” The note indicated that the jury had voted “4 - not guilty based on

evidence [and] 2 - innocent on evidence.” The note did not indicate whether the jury

was split on both counts, just the trespass count, or just the attempted theft count, but

it clearly evidenced confusion as to the charges received by the jury. When the trial

court received the note from the jury, the trial court merely informed defense counsel

and the State that the note said that the jury could not reach a unanimous verdict. The

trial court did not show the note to defense counsel, advise defense counsel of its

                                           7
entire content, or afford defense counsel an opportunity to suggest an appropriate

response in light of the entire content of the note. Instead, the trial court brought the

jury back in and encouraged them to continue discussing the case.

      Both the Supreme Court of Georgia and this Court have recognized that “the

failure of the trial court to inform counsel of the contents of [a jury note] and to seek

comment or input in the formulation of the court’s response [constitutes] a violation

of [a defendant’s] right to counsel.” Lowery v. State, 282 Ga. 68, 74-75 (4) (b) (ii)

(646 SE2d 67) (2007); see also Wells v. State, 297 Ga. App. 153, 161 (2) (676 SE2d

821) (2009); Andrews v. State, 293 Ga. App. 445, 446 (667 SE2d 212) (2008). In

light of this constitutional right, the Supreme Court requires trial courts

      to have jurors’ communications submitted to the court in writing; to
      mark the written communication as a court exhibit in the presence of
      counsel; to afford counsel a full opportunity to suggest an appropriate
      response; and to make counsel aware of the substance of the trial court’s
      intended response in order that counsel may seek whatever
      modifications counsel deems appropriate before the jury is exposed to
      the instruction.


Lowery, supra, 282 Ga. App. at 76 (4) (b) (ii). Here, given the jury’s obvious

confusion, the trial court’s failure to provide counsel with an opportunity to review

the jury note and know its full contents and then discuss the trial court’s response to

                                           8
the note was not harmless error. Instead, the action of the trial court kept the

defendant’s counsel ignorant to the jury’s confusion and deprived defendant of his

right to counsel. See id. Unfortunately, as a consequence, we must reverse Dowda’s

trespass conviction. In so holding, we note that the State is entitled to retry Dowda

on the trespass charge because, as discussed in Division 1, the evidence was sufficient

to support his conviction for that offense. Wells, supra, 297 Ga. at 153-154.

      Judgment reversed. Doyle, C. J., and Reese, J., concur.




                                          9
