Mullens v. State, 658 S.E.2d 421 (Ga. Ct. App. 2008). · Go Syfert
Mullens v. State, 658 S.E.2d 421 (Ga. Ct. App. 2008). Cases Citing This Book View Copy Cite
27 citation events (27 in the last 25 years) across 1 distinct court.
Strongest positive: Marks v. State (gactapp, 2010-11-16)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Marks v. State
Ga. Ct. App. · 2010 · confidence medium
J., and Phipps, P. J., concur. 1 OCGA § 42-8-34.1 (b). 2 See, e.g., Scott v. State, 305 Ga. App. 596 ( 699 SE2d 894 ) (2010). 3 Clark v. State, 287 Ga. App. 176 ( 651 SE2d 106 ) (2007). 4 (Citation and punctuation omitted.) Mullens v. State, 289 Ga. App. 872, 873-874 (1) ( 658 SE2d 421 ) (2008). 5 Farmer v. State, 216 Ga. App. 515, 520 (5) (a) ( 455 SE2d 297 ) (1995). 6 Id. 7 Marks’ ex-wife also testified that Marks had e-mailed links to the website postings to several people associated with her employer, but these allegations were supported only by hearsay, which has no probative value in …
discussed Cited as authority (rule) Scott v. State
Ga. Ct. App. · 2010 · confidence medium
Pope, Jr., concur. 1 OCGA § 16-13-30 (a). 2 OCGA § 16-13-25 (8). 3 Mullens v. State, 289 Ga. App. 872, 872 ( 658 SE2d 421 ) (2008). 4 The allegation that Scott was in arrears on the payment of the court-ordered fine was ultimately dropped. 5 Kier v. State, 292 Ga. App. 208, 209 (1) ( 663 SE2d 832 ) (2008). 6 Mitchell v. State, 268 Ga. 592, 593 ( 492 SE2d 204 ) (1997). 7 Brown v. State, 294 Ga. App. 1, 5 (2) ( 668 SE2d 490 ) (2008). 8 Anderson v. State, 212 Ga. App. 329, 329-330 ( 442 SE2d 268 ) (1994). 9 Gonzdles v. State, 276 Ga. App. 11, 13 ( 622 SE2d 401 ) (2005).
discussed Cited as authority (rule) Casper v. State
Ga. Ct. App. · 2010 · confidence medium
Barnes, P J., and Phipps, P. J., concur. 1 Mullens v. State, 289 Ga. App. 872, 872 ( 658 SE2d 421 ) (2008). 2 Young v. State, 265 Ga. App. 425, 426 ( 594 SE2d 667 ) (2004). 3 Abney v. State, 240 Ga. App. 280, 281 (1) ( 523 SE2d 362 ) (1999). 4 Brown v. State, 143 Ga. App. 256, 257 ( 238 SE2d 258 ) (1977). 5 Wilson v. State, 230 Ga. App. 271, 272 (1) ( 495 SE2d 894 ) (1998). 6 Glisson v. State, 165 Ga. App. 342, 342-343 (3) ( 301 SE2d 62 ) (1983). 7 Purdue v. State, 165 Ga. App. 466, 466-467 ( 302 SE2d 118 ) (1983). 8 Sapp v. State, 158 Ga. App. 443, 444 ( 280 SE2d 867 ) (1981).
discussed Cited "see" JONES v. the STATE. (2×)
Ga. Ct. App. · 2019 · signal: see · confidence high
See Mullens v. State , 289 Ga. App. 872 , 874 (1), 658 S.E.2d 421 (2008).
discussed Cited "see" White v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Mullens v. State, 289 Ga.App. 872, 873-874 (1) ( 658 SE2d 421 ) (2008) (trial court did not abuse its discretion in revoking probation where probation term stated “[y] ou shall have no contact. . . with any child” and evidence showed (i) probationer approached a minor girl and offered her candy, and (ii) probationer admitted having had incidental contact with minors); Smith, supra; Cheatwood, supra at 617-618, 621 (2) (where probation terms included that probationer would not violate any laws and would produce on demand a urine sample to be tested for controlled substances, trial court…
discussed Cited "see, e.g." Amanda Chaney v. State (2×)
Ga. Ct. App. · 2020 · signal: compare · confidence medium
Ellis, 221 Ga. App. at 104 (1); compare Mullens v. 4 Moreover, the transcripts of the original sentencing, the resentencing hearing, and the motion for new trial hearing shed little light on the legal basis of the trial court’s reasoning (outside of its observation that the crimes were particularly heinous ), although the trial court did inquire whether including “supervised” in its sentence could address Chaney’s concerns. 8 State, 289 Ga. App. 872, 873-874 (1) ( 658 SE2d 421 ) (2008) (special condition providing that the defendant “shall have no contact, whether directly in person …
discussed Cited "see, e.g." James White v. State (2×)
Ga. Ct. App. · 2012 · signal: see also · confidence medium
Dillard, J., concurs in judgment only. other individuals, when the police found cocaine inside his mother’s bedroom was insufficient to establish under the preponderance standard that the probationer was in possession of cocaine with intent to distribute); see also Boatner v. State, 312 Ga. App. 147, 148 (1) ( 717 SE2d 727 ) (2011) (reversing probation revocation for possession of rifle found leaning against the outside railing of porch on probationer’s trailer, where probationer testified that the rifle was not his, probation officer acknowledged that rifle could have belonged to a neighb…
discussed Cited "see, e.g." Brown v. State (2×)
Ga. Ct. App. · 2008 · signal: see also · confidence low
See also Smith v. State, 283 Ga. App. 317, 318 ( 641 SE2d 296 ) (2007). 7 (Citation omitted.) Smith, supra. Accord Mullens v. State, 289 Ga. App. 872 ( 658 SE2d 421 ) (2008). 8 (Punctuation omitted.) Giang v. State, 285 Ga. App. 491 ( 646 SE2d 710 ) (2007), citing Young v. State, 265 Ga. App. 425, 426 ( 594 SE2d 667 ) (2004). 9 See Smith, supra (revocation of probation was abuse of discretion where only evidence that air compressor in defendant’s possession had been stolen was officer’s hearsay testimony that victim told him it had been stolen). 10 See Patterson v. State, 287 Ga. App. 100,…
Retrieving the full opinion text from the archive…
Mullens
v.
the State
A08A0223.
Court of Appeals of Georgia.
Feb 29, 2008.
658 S.E.2d 421
Robert L. Crowe, for appellant., Stephen D. Kelley, District Attorney, Jonathan R. Miller III, Assistant District Attorney, for appellee.
Blackburn, Miller, Ellington.
Cited by 12 opinions  |  Published
BLACKBURN, Presiding Judge.

After pleading guilty to a charge of child molestation and serving the custodial portion of his sentence, Glenn Mullens appeals the revocation of his probation, contending that (1) the evidence was not sufficient to support the revocation, and (2) the trial court erred in admitting statements he made to his probation officer. For the reasons that follow, we affirm.

“A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” OCGA § 42-8-34.1 (b). “This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” (Punctuation omitted.) Cheatwood v. State. 1 Accordingly, “[i]f admissible evidence is presented in support of the allegations regarding revocation of probation, this court will affirm.” Young v. State. 2

Viewed in this light, the record shows that in February 2004, Mullens was sentenced to fifteen years, with three in confinement, as part of a guilty plea to one count of child molestation. Following his confinement, Mullens was released on probation, subject to several conditions including a special condition prohibiting him from having contact with minors.

After Mullens admitted to his probation officer that he had incidental contact with a minor female, the probation officer filed a petition to revoke probation. At the revocation hearing, a nine-year-old girl testified that Mullens approached her and asked her if she wanted some candy. Although on cross-examination she expressed uncertainty as to the stranger’s identity, she testified that it was the[*873] same man she had seen carrying jugs of water, which matched Mullens’s own testimony that, due to a water filter problem, he obtained water by carrying jugs from his brother-in-law’s house nearby. The girl’s father also corroborated her account, as she had run to the backyard to tell him about a stranger who offered her candy; the father, however, could not identify Mullens.

Mullens himself testified and denied the girl’s entire account but admitted to separately encountering two young girls when he was walking his dog to get water. Mullens related this encounter to his probation officer, who filed a revocation petition which was granted, giving rise to this appeal.

1. Mullens contends that the evidence was insufficient to support revocation. We disagree.

The trial court’s order was based on a “technical violation of probation conditions” and contained no written findings of fact. Mullens bases his challenge on an oral finding the trial court made from the bench that Mullens had “incidental contact” with a minor, and argues that having only incidental contact does not violate the special condition of his probation. Pretermitting whether the oral finding was the sole basis for the order, we find that the evidence supported a finding that Mullens violated a special condition of his probation.

The condition at issue reads as follows:

You shall have no contact, whether directly in person or indirectly through any means of communication or through employment, volunteer activity or otherwise with any child under the age of eighteen (18), including your own children. . . . Neither shall you attempt contact with the aforementioned except under circumstances approved in advance and in writing by the Court. If you have incidental contact with children, you will be civil and courteous to the child and immediately remove yourself from the situation. You will discuss the contact at your next meeting with your Probation Officer.

(Emphasis supplied.)

Mullens argues that the later instruction requiring him to report incidental contact with children implies that incidental contact is permitted. However, this ignores the explicit language of the condition, i.e., that “you shall have no contact. . . with any child.” This is a clear proscription of any contact with all children, the severity of which is noted by the prohibition of contact with even his own children. Such a condition can be justified, because

[*874] [a] person occupies a special status while on probation, during which time his private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances. The rationale for this power is basically, of course, that the person has been convicted of a crime and would be serving a sentence but for the grace of the court.

(Punctuation omitted.) Staley v. State. 3 That the condition requires Mullens to report incidental contact and instructs him how to address such contact should it arise does not relieve Mullens from the prohibition of all contact with any children. Further, that the probation officer might exercise discretion with respect to incidental contact does not change the fact that, once a trial court exercises its discretion in revoking probation, this Court will uphold such an exercise absent a manifest abuse. See Cheatwood v. State, supra, 248 Ga. App. at 621 (2). In light of the evidence that (1) Mullens approached a minor girl and offered her candy, and (2) Mullens admitted having incidental contact with minors, we discern no manifest abuse of discretion.

2. Mullens also contends that the trial court violated his Fifth Amendment privilege against self-incrimination by allowing his probation officer to testify as to what Mullens told him during a required probationary meeting. We disagree.

During the revocation hearing, the State called the probation officer to testify as to Mullens’s admission that he had incidental contact with a minor. Mullens unsuccessfully objected to the testimony, and he now asserts that because the probation condition required him to discuss with his probation officer any incidental contact with children, and because this conversation was then recounted in court over his objection, his Fifth Amendment privilege against self-incrimination was violated. However, having accepted the original probationary conditions in a negotiated plea, Mullens validly waived his Fifth Amendment right as part of the plea bargaining process. See Allen v. State; 4 Fox v. State; 5 (noting that a constitutional waiver is “valid on the theory that the defendant has voluntarily consented to such a condition of probation as an acceptable alternative to prison”) (punctuation omitted).

Judgment affirmed.

Miller and Ellington, JJ., concur. [*875] Decided February 29, 2008. Robert L. Crowe, for appellant. Stephen D. Kelley, District Attorney, Jonathan R. Miller III, Assistant District Attorney, for appellee.
1

Cheatwood v. State, 248 Ga. App. 617, 621 (2) (548 SE2d 384) (2001).

2

Young v. State, 265 Ga. App. 425, 426 (594 SE2d 667) (2004).

3

Staley v. State, 233 Ga. App. 597, 599 (505 SE2d 491) (1998).

4

Allen v. State, 258 Ga. 424, 425 (4) (369 SE2d 909) (1988).

5

Fox v. State, 272 Ga. 163, 164 (1) (527 SE2d 847) (2000).