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State v. Graves

The trial court erred in addressing on motion for new trial the defendant's claim that the accusation was fatally defective, as such a claim can only be made by a pre-trial general demurrer or by a motion in arrest of judgment.

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The State appeals from the trial court’s grant of a new trial to Levi David Graves after he was convicted of one misdemeanor count of “loitering or prowling” in violation of OCGA § 16-11-36. For the following reasons, we vacate the court’s order granting a new trial and remand.

Graves was charged with two counts of violating OCGA § 16-11-36 arising out of the same conduct. After a bench trial, Graves was found guilty of count one “loitering or prowling” in violation of OCGA § 16-11-36 by engaging in the following conduct: “masturbating while driving a motor vehicle in a residential area.” In the same trial, Graves was found not guilty of count two “loitering or prowling” in violation of OCGA § 16-11-36 by engaging in the following conduct: “masturbating in the presence of another while driving in a residential area.” In both counts, the State alleged that Graves’s conduct violated the “loitering or prowling” statute because, as set forth in the statute, he was “in a place . . . in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons . . . in the vicinity.” OCGA § 16-11-36 a.1

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