Full Opinion

FOURTH DIVISION MCFADDEN, P. J., PADGETT and EPPS, 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. https://www.gaappeals.gov/rules September 15, 2026 In the Court of Appeals of Georgia A26A0880. CALLOWAY v. THE STATE. PADGETT, Judge. After a jury trial, Johnny Tyrone Calloway was convicted of stalking, disorderly conduct, and four counts of obstruction of an officer, all misdemeanors.1 He appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to sustain his convictions, and that the trial court committed reversible error by failing to charge the jury on spoliation and by failing to properly conduct a thirteenth juror analysis. Finding no error, we affirm. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a 1 OCGA §§ 16-5-90; 16-11-39; and 16-10-24(a). presumption of innocence.” Rodriguez v. State, 375 Ga. App. 283, 283 (916 SE2d 10) (2025) (punctuation omitted). Viewed in that light, the evidence shows that in the months leading to May 2021, Calloway and his then-wife had been arguing and experiencing “a point of contention” in their marriage. On or about May 16, 2021, during a brief period of marital separation, Calloway’s wife was staying with her mother when she texted Calloway that “it[ ] [was] over” between them. Calloway began “blowing up” the mother-in-law’s phone, calling her from different phone numbers, wanting to know where his wife was. The mother-in-law called 911 a little after 2:00 a.m. and reported that Calloway told her that if she did not tell him where his wife was, he would come to her house with his gun and hurt her and his wife before killing himself. The mother-in-law advised that Calloway had two guns in his vehicle, and expressed to dispatch that she believed he had been drinking and that she wanted a protective order. She gave law enforcement Calloway’s name and described his vehicle as a black Chevrolet Silverado with deeply tinted windows and a camper top over the truck bed. Calloway arrived at his mother-in-law’s home, banged on the door, refused to leave even after being told to do so, and threatened that if he did not find his wife, he would “blow his brains out.” Before officers arrived, however, Calloway left the scene in his vehicle and headed toward an apartment complex approximately 100 yards 2 from the mother-in-law’s home. Once officers arrived at the home, they were told that Calloway had made suicidal statements, and was armed and in an altered mental state. The mother-in-law also told the officers the direction in which Calloway had driven. Officer Bailey Sanders and other officers, all in uniform, traveled in the direction Calloway had gone and stopped their patrol vehicles short of where they believed Calloway was; they approached the apartment complex on foot, unsure of Calloway’s mental state and concerned that he was armed. They located Calloway in his vehicle, which was backed into a parking spot. After being commanded to exit his vehicle multiple times, Calloway eventually did so, but when commanded by one of the officers to walk backwards toward the officers, Calloway became boisterous, screaming at the officer and not complying with repeated commands. Officer Sanders then continued to instruct Calloway to walk backwards toward the officers and, due to the potential that Calloway had weapons, repeatedly commanded him to get on his knees. Instead of complying with Officer Sanders’ commands, Calloway told her, “f—k you b—tch, you get on [your] knees and suck my dick.” Throughout the roughly 20-minute encounter, Calloway was “very belligerent” with the officers, continually refusing to comply with commands, yelling obscene and vulgar language, 3 and even telling one of the officers to shoot and kill him. Ultimately, one of the officers used a taser on Calloway and he was placed under arrest. Calloway was charged with two counts of stalking (one directed toward his wife and the other directed toward his mother-in-law), four counts of obstruction of an officer, one count of disorderly conduct, and one count of criminal trespass. At trial, the jury heard testimony from the mother-in-law and the four responding officers whom Calloway was alleged to have obstructed. The 911 call was played for the jury, as was body-worn camera footage from three of the officers. The fourth officer had a different body camera system — a system the police department only used for approximately three months due to operational deficiencies — that did not capture footage of the events. Calloway requested that the jury be instructed on spoliation of evidence based on the State’s inability to produce the fourth officer’s bodycam footage, which the trial court denied.2 The jury found Calloway guilty on one count of stalking based on conduct toward the mother-in-law, four counts of 2 However, the trial court made clear to Calloway that he was entitled to argue to the jury that the State mishandled or lost or failed to produce the officer’s bodycam footage. 4 obstruction of an officer, and one count of disorderly conduct.3 Calloway moved for a new trial, which the trial court denied after a hearing.4 This appeal followed. 1. As a preliminary matter, we note deficiencies in Calloway’s brief, the most pronounced of which is that Calloway fails in many places to support his enumerations of error with specific reference to the record. See Ga. Ct. App. R. 25(a)(5) and (d)(1)(i). In contravention of this Court’s rules, Calloway’s appellant brief includes pages of factual assertions devoid of any citation to the record. His brief furthermore fails to provide citations to relevant legal authority, or present meaningful legal analysis of the specific factual scenario before this Court. See Ga. Ct. App. R. 25(a)(5), (7), and (d)(1)(i). Indeed, the way Calloway’s brief presents the insufficiency of the evidence and thirteenth juror issues, in particular, does not provide this Court with meaningful analysis of why the evidence does not support his convictions, whether the trial court allegedly failed to fulfill its responsibility to act as a thirteenth juror, or how our decisional law supports a finding of legal error on 3 The trial court entered a directed verdict of acquittal on the stalking charge related to Calloway’s wife, and the jury found him not guilty on a charge of criminal trespass. 4 As grounds for a new trial, Calloway asserted, among other things, that the verdict was “contrary to the principles of justice” and “against the weight of the evidence” under OCGA §§ 5-5-20 and 5-5-21. At the hearing on the motion, Calloway argued that there was insufficient evidence to convict him of stalking and obstruction. 5 the facts established by the record. While we will address his claims to the extent we are able to ascertain them, we remind Calloway of his burden, as the party alleging error, to show it affirmatively by the record and to support his claims with meaningful legal argument. See Walls v. Sumter Regional Hosp., 292 Ga. App. 865, 870(3) (666 SE2d 66) (2008) (“[T]he burden is on the party alleging error to show it affirmatively by the record. … [I]t is not the function of appellate judges to engage in the insipid search for support of alleged error without citation to relevant parts of the record.” (punctuation omitted)); Gresham v. Harris, 349 Ga. App. 134, 138(1) n.9 (825 SE2d 516) (2019) (“rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant facts” (punctuation omitted)). 2. Calloway argues that the evidence was insufficient to support his convictions for stalking, obstruction of an officer, and disorderly conduct. We disagree. When this Court reviews the sufficiency of the evidence for a criminal conviction, in addition to viewing the evidence in the light most favorable to the jury’s verdict, “[w]e do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” Bryan v. State, 6 371 Ga. App. 769, 770 (903 SE2d 160) (2024) (punctuation omitted). See Jackson v. Virginia, 443 US 307, 319(III)(B) (99 SCt 2781, 61 LE2d 560) (1979). Accordingly, the jury’s guilty verdict will be upheld “as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” Oliver v. State, 325 Ga. App. 649, 651 (753 SE2d 468) (2014) (punctuation omitted). a. With respect to his conviction of stalking, Calloway argues that the evidence was insufficient because the State did not show that he “contacted [the mother-in- law] for purposes of harassing and intimidating” her or a “pattern of harassing and intimidating behavior,” and because “a reasonable person in [the mother-in-law’s] situation would not [have felt] threatened.” We conclude otherwise. Under OCGA § 16-5-90(a)(1), “[a] person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” Furthermore, the statute defines “harassing and intimidating” as a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. 7 Id. In determining whether the evidence shows “a pattern of harassing and intimidating behavior,” the jury may consider a variety of factors, including but not limited to “the prior history between the parties, the defendant’s surreptitious conduct, as well as [his] overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.” Oliver, 325 Ga. App. at 652(1) (punctuation omitted). Here, the evidence showed that Calloway called the mother-in-law repeatedly from different phone numbers, threatened that he would bring a gun to her home and hurt her, banged on her door to gain access to his wife, and refused to leave the mother-in-law’s home when told to do so. This conduct amounts to a series of successive actions that would authorize the jury to find a pattern of harassing and intimidating behavior. See Oliver, 325 Ga. App. at 652(1) (holding that conduct occurring on a single day, which included calling the victim, appearing at her home, knocking on the door, yelling and screaming, demanding to be let inside, and refusing to leave despite being told to do so — all in violation of a protective order — was “more than sufficient” to show a pattern of harassing and intimidating behavior to support conviction of aggravated stalking under the analogous standard within OCGA § 16-5-91(a)); Herbert v. State, 311 Ga. App. 396, 399 n.4 (715 SE2d 795) (2011) (holding that defendant’s actions toward the victim on a single day while 8 inside a store was sufficient evidence that defendant engaged in a pattern of harassing and intimidating behavior).5 Moreover, while the mother-in-law acknowledged at trial that Calloway never directly threatened her, she testified that his conduct made her nervous due to her post-traumatic stress disorder and the recording of her 911 call revealed that Calloway threatened to come to her house with a gun and hurt her and her daughter before killing himself. Even if he had not made the explicit threat of physical harm established by the 911 call, as this Court has held, “[a] defendant need not engage in unequivocally hostile conduct or make explicit threats in order to be convicted of stalking,” and “[e]ven behavior that is not overtly threatening can provide the requisite degree of intimidation and harassment” under certain factual circumstances such as those presented here. See Krepps v. State, 301 Ga. App. 328, 329(1) (687 SE2d 608) (2009). See also Haygood v. State, 338 Ga. App. 189, 192(1)(a) (789 SE2d 404) (2016) (notwithstanding witness’s later recantation at trial, recorded statements to 911 dispatcher and statement to responding officer provided some 5 As we did in Oliver and Herbert, we find that this case does not present the “unique circumstances” at issue in State v. Burke, 287 Ga. 377, 377–79 (695 SE2d 649) (2010), wherein an aggravated stalking charge was improperly premised solely on the violation of a protective order, which violation consisted of the defendant sending a single envelope to the victim from prison. See Oliver, 325 Ga. App. at 652(1) n.10; Herbert, 311 Ga. App. at 398–99 n.3. Burke thus does not control our disposition here. 9 evidence from which jury could infer defendant’s conduct placed witness in reasonable fear). Indeed, “[n]otwithstanding a defendant’s claims of innocent motives” in response to a stalking charge, “it is for the finder of fact to determine whether the defendant acted with the requisite degree of criminal intent in engaging in the act for which he is prosecuted.” Krepps, 301 Ga. App. at 329(1). We thus find that the evidence was sufficient to sustain Calloway’s conviction for stalking. b. Calloway argues that the evidence was insufficient to support his convictions for obstruction because the officers were not in the lawful exercise of their official duties when he failed to comply with their commands. Specifically, Calloway claims that the officers lacked probable cause to arrest him, that Officer Bailey’s command that he get on his knees was either unlawful or unreasonable depending on how the encounter is characterized, and that deployment of the taser constituted excessive force. Under OCGA § 16-10-24(a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer … in the lawful discharge of his or her official duties shall be guilty of a misdemeanor.” The determination of whether an officer was acting in the lawful discharge of his or her official duties often turns on the type 10 or “tier” of encounter between the officer and a citizen. Our Fourth Amendment jurisprudence recognizes three tiers of such encounters: a first-tier encounter involves only voluntary communications between police and citizens without any coercion or detention by law enforcement; a second-tier encounter involves a brief detention of a citizen by police to investigate the possibility that a crime has been or is being committed; and a third-tier encounter is an arrest and must be supported by probable cause. Johnson v. State, 343 Ga. App. 310, 312 n.4 (807 SE2d 101) (2017). “To meet the reasonable suspicion standard for conducting a second-tier investigatory detention, the police must have, under the totality of the circumstances, a particularized and objective basis for suspecting that a person [was or] is involved in criminal activity.” Dougherty v. State, 341 Ga. App. 120, 125 (799 SE2d 257) (2017) (punctuation omitted). “This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” Id. (punctuation omitted). Moreover, “the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Id. at 125–26 (quoting Illinois v. Wardlow, 528 US 119, 125 (120 SCt 673, 145 LE2d 570) (2000)). 11 Here, based upon the information conveyed by the mother-in-law in her 911 call and when officers arrived at her home, the officers had a particularized and objective basis for suspecting that Calloway had been involved in the crime of stalking and/or criminal trespass when they approached his vehicle and facilitated an investigatory detention by giving Calloway commands to exit the vehicle, walk backwards, and lower himself to his knees.6 In light of the information provided by the mother-in-law — that Calloway was in an altered mental state, threatened to hurt himself and others, and was potentially armed — their commands reflected commonsense judgment about the potential risks presented by the encounter. However, that second-tier encounter quickly evolved into a third-tier encounter when Calloway refused to cooperate with officers’ instructions, hurled obscene insults at officers, yelled at them to shoot him, and interfered with the officers’ performance of their duties. His actions thereby provided both probable cause for his arrest and sufficient evidence to support his conviction for misdemeanor obstruction of the four officers.7 See Taylor v. State, 326 Ga. App. 27, 30(1)(b) (755 SE2d 839) 6 In determining whether a detention is legal and whether probable cause exists for an arrest, an officer “may be entitled to rely on information received by radio dispatch or provided by other officers” if the information and source are “reasonably trustworthy,” even if the information is ultimately proven incorrect. Anderson v. State, 253 Ga. App. 338, 338–39 (559 SE2d 85) (2002). 7 While we disagree that Calloway preserved any argument that use of the taser in accomplishing his arrest constituted excessive force or that such an argument 12 (2014) (“[c]onduct constituting obstruction of law enforcement can include arguing with or refusing to cooperate with police when they attempt to investigate a crime”; defendant’s refusal to exit truck, locking truck door, threatening to call 911, and refusing to give officers his hands in order to handcuff him was sufficient to support misdemeanor obstruction conviction); Haygood, 338 Ga. App. at 193(1)(b) (officers responding to 911 call from defendant’s brother were lawfully investigating domestic disturbance and where defendant refused to cooperate with officers’ requests, yelled at them, and resisted their verbal commands, the evidence was sufficient to sustain conviction for misdemeanor obstruction); West v. State, 296 Ga. App. 58, 61–62(2) (673 SE2d 558) (2009) (officer was engaged in lawful discharge of duties in effectuating investigatory detention in response to 911 call indicating defendant was following woman and jury was authorized to find defendant guilty of obstruction where he refused officer’s repeated commands to leave the scene), overruled in part provides a basis for reversing the trial court’s judgment of conviction, we nonetheless note that by continually acting belligerently and confrontationally and in light of the information provided by the mother-in-law to 911 dispatch, the officers’ use of the taser gun to effectuate the arrest was lawful and reasonably proportionate in the context of the unstable, uncertain, and drawn-out situation that Calloway created. See Draper v. Reynolds, 278 Ga. App. 401, 402 (629 SE2d 476) (2006) (explaining that in related 42 USC § 1983 federal court ruling, the court found use of taser in making arrest did not amount to excessive force in violation of defendant’s Fourth Amendment rights (citing Draper v. Reynolds, 369 F3d 1270, 1277–78 (11th Cir. 2004)). 13 on other grounds by Worthen v. State, 304 Ga. 862, 874(3)(e) n.8 (823 SE2d 291) (2019). c. Calloway further claims the evidence was insufficient to support his conviction for disorderly conduct because the language he used was not the type of language that would tend to incite an immediate breach of the peace.8 He argues that “a stable and calm and seasoned police officer” would have heard that type of language before and that if any of these officers were “that thin-skinned[,] then they should search for another line of work … . There are good jobs to be had as a stay-at- home mom selling merchandise online.” His enumeration of error on this point is without merit. First, Calloway has failed to preserve any error related to the sufficiency of the evidence to support his disorderly conduct conviction. As pointed out, supra note 4, while Calloway’s motion for new trial stated that he was “convicted of [s]talking and 8 The disorderly conduct statute, OCGA § 16-11-39(a)(3), provides in relevant part that “[a] person commits the offense of disorderly conduct” when he or she: without provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words[.]” 14 several counts of obstruction,” neither in his written motion for new trial nor in his oral argument during the motion hearing did Calloway make any argument related to the sufficiency of the evidence to support his conviction for disorderly conduct. Furthermore, when Calloway moved for a directed verdict at the close of the State’s case, he only addressed a stalking charge related to his wife, on which charge the trial court directed a verdict of acquittal; he did not request judgment as a matter of law on the disorderly conduct charge. As such, Calloway has not preserved the issue for our review. See Shelley v. Town of Tyrone, 302 Ga. 297, 308(3) (806 SE2d 535) (2017) (“[A]n appellant may not on appeal raise questions or issues neither raised nor ruled upon by the trial court.” (punctuation omitted)). Second, even if Calloway had preserved the issue, the jury was authorized to find beyond a reasonable doubt that Calloway was guilty of disorderly conduct based on the evidence presented at trial. The testimony of the officers and the footage from their body-worn cameras showed that Calloway continually directed obscene invective at the officers and yelled vulgarities in a residential area in the middle of the night. This evidence was sufficient to sustain his conviction for disorderly conduct. See Steillman v. State, 295 Ga. App. 778, 779–80(1) (673 SE2d 286) (2009) (holding that cursing loudly at officer during encounter constituted probable cause to arrest defendant for disorderly conduct and therefore, defendant’s resistance to arrest 15 constituted misdemeanor obstruction of an officer); Person v. State, 206 Ga. App. 324, 325(1) (425 SE2d 371) (1992) (evidence was sufficient to sustain disorderly conduct conviction where defendant screamed to officer “I’m not going to any [expletive] jail and I’m not wearing any mother-[expletive] handcuffs”); Evans v. State, 188 Ga. App. 347, 347(1) (373 SE2d 52) (1988) (rejecting argument that “very routine” language to police officer was sufficiently provocative under statute and holding that evidence was sufficient to support disorderly conduct conviction where defendant called officer a “g—d— liar” and told all responding officers to “f— o— ”). 3. Calloway also claims the trial court erred in declining to charge the jury on spoliation in connection with missing video from one officer’s body-worn camera.9 In doing so, Calloway concedes that “[t]he law in Georgia does not support” his position, but argues that failing to change the law as set forth in Howard v. State, 307 9 “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29) (2007) (punctuation omitted). When a party in a civil case destroys or fails to preserve such necessary evidence, among the possible sanctions is “a jury instruction that allows an adverse inference that the lost or destroyed evidence would have been harmful” to the party whose conduct resulted in the destruction or failure to preserve the evidence. MARTA v. Tyler, 360 Ga. App. 710, 711(1) (860 SE2d 224) (2021). Setting aside the doctrine’s inapplicability in a criminal case, see infra, Division 3, the record does not establish that any video from the fourth officer’s bodycam ever existed, let alone that the State destroyed or failed to preserve any such video. 16 Ga. 12 (834 SE2d 11) (2019), overruled in part on other grounds by Johnson v. State, 315 Ga. 876 (885 SE2d 725) (2023), moves prosecutors and law enforcement officers “closer to a lack of accountability and a lack of transparency.” In Howard, our Supreme Court reiterated that “a typical spoliation charge … is improper in a criminal case, even when requested by a defendant,” because such a charge would be violative of a defendant’s right to be convicted by evidence establishing guilt beyond a reasonable doubt. ... The charge, if given, would be more applicable to defendant than to the state and would apply to all the evidence on all counts, including the defendant’s failure to testify. This, undeniably, would fly in the face of justice and the right of defendant to remain silent as well as having an eroding effect on the state’s burden of proving the defendant guilty beyond a reasonable doubt. Howard, 307 Ga. at 19(3). See also Radford v. State, 251 Ga. 50, 53(7) (302 SE2d 555) (1983) (affirming trial court’s refusal to give spoliation charge requested by defendant). We are without authority to overrule or modify the Court’s decisions deeming a spoliation charge improper in criminal cases. Our state constitution mandates that the decisions of the Supreme Court of Georgia “shall bind all other courts as precedents.” Ga. Const. of 1983, Art. 6, § 6, ¶ VI. Thus, as an intermediate appellate court, we are bound by Supreme Court of Georgia decisions and are not at liberty to 17 decline to follow rules of law established in clear terms by those decisions. Kingwood Int’l Resort v. McMurry, 379 Ga. App. 169, 173(1)(a) (928 SE2d 282) (2026). Accordingly, we are foreclosed from adopting the rule urged by Calloway and this enumeration is without merit. 4. Calloway also contends that the trial court erred by failing to conduct a “thirteenth juror” analysis that included making credibility determinations and weighing the evidence. We disagree and conclude that the trial court fulfilled its role as the “thirteenth juror” in denying Calloway’s motion for new trial on general grounds. Under OCGA §§ 5-5-20 and 5-5-21, a trial court may reverse a conviction, on a motion for new trial, if the conviction is “contrary to evidence and the principles of justice and equity,” OCGA § 5-5-20, or “decidedly and strongly against the weight of the evidence,” OCGA § 5-5-21. As our Supreme Court has held, when these so-called general grounds are properly raised in a timely motion for new trial, the trial judge must exercise a broad discretion to sit as a thirteenth juror, and sitting as the thirteenth juror requires the judge to consider matters typically reserved to the jury, including conflicts in the evidence, witness credibility, and the weight of the evidence. Saunders v. State, 323 Ga. 136, 142(2) (924 SE2d 259) (2025) (citation modified). As an appellate court, however, “we do not independently review the record as 18 a thirteenth juror. The decision to grant or refuse to grant a new trial on the general grounds is vested solely in the trial court.” Ward v. State, 316 Ga. 295, 299(3) (888 SE2d 75) (2023) (punctuation omitted). And we “presume, in the absence of affirmative evidence to the contrary, that the trial court did properly exercise such discretion.” Id. (punctuation omitted). Upon review of the transcript of the motion for new trial hearing and the trial court’s order denying the motion for new trial, it is readily apparent that the trial court indeed exercised its discretion as the thirteenth juror to independently evaluate the evidence as the factfinder and determine whether a new trial was warranted on general grounds. Accordingly, Calloway’s claim of error is not subject to review on appeal. See Saunders, 323 Ga. at 142(2). Judgment affirmed. McFadden, P. J., and Epps, J., concur. 19