CHISLOM v. STATE (2026)

Whitney Chislom was tried by a jury and convicted of theft by shoplifting. On appeal, Chislom contends that the trial court erred by failing to allow her to introduce the statement of an unavailable witness. For the following reasons, we vacate the judgment and remand this case for further proceedings.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Johnson v. State, 340 Ga. App. 429, 430, 797 S.E.2d 666 (2017) (punctuation omitted).

So viewed, the evidence showed that on March 6, 2023, an asset protection officer for Walmart observed four shoppers on surveillance cameras, including Chislom, selecting a lot of relatively expensive items. Three of the four shoppers, including Chislom, went to a self-checkout register. The self-checkout register was operated using a handheld scanner. While Chislom held the scanner, she could be seen failing to scan several items and passing them to a male accomplice.

After Chislom passed all points of sale, the officer confronted her and she handed him the receipt for her items. After the officer looked at the receipt, he noticed that, at a minimum, one item he observed in her cart was not reflected on the receipt. Ultimately, the officer recovered nine items from the shopping cart that were not paid for.

Chislom was charged in an accusation with one count of misdemeanor theft by shoplifting and was convicted by a jury on that count. This appeal followed.

Chislom contends that the trial court erred by failing to allow her to introduce the statement of an unavailable witness.

After voir dire, the State made an oral motion to suppress ¹ a statement from an accomplice that it believed Chislom was going to introduce through an investigator with the solicitor's office. The State elaborated that the accomplice was not present and “unless the defense intends to produce him to testify to the statement, the State objects ․ based on hearsay.” The trial court declined to hear the motion pre-trial, explaining that it was not going to consider the issue until “it's ready.”

During trial, Chislom called the solicitor's office investigator to testify. The investigator testified that a male accomplice came to fill out a statement in his office. After identifying the written statement, Chislom moved to admit it and the State objected to hearsay. Chislom's counsel then explained that the accomplice was unavailable because he was currently in “bench warrant status” and there was no possible way for Chislom's counsel to locate him. Chislom's counsel stated that the statement was admissible under OCGA § 24-8-807 due to the accomplice's unavailability. Chislom also noted that the statement was given to an investigator for the State.

Without engaging in any analysis, the trial court simply concluded that the statement was inadmissible. After the trial court stated that it would not admit the statement, Chislom added that the statement was against the accomplice's interest. The trial court again noted that since the accomplice was not in court to testify, the statement would not be admitted.

Following the exclusion of the evidence, Chislom's counsel asked the investigator if anyone else was with the accomplice when he wrote his statement and the investigator replied that Chislom was also present. Chislom testified and, on direct examination, her counsel asked her if she and the accomplice went to the solicitor's office for the accomplice to make a statement. The trial court disallowed Chislom from testifying further about the statement, referencing its earlier ruling to exclude it.

“We review a trial court's evidentiary rulings for an abuse of discretion.” State v. Hamilton, 308 Ga. 116, 121 (3) (a), 839 S.E.2d 560 (2020). Under OCGA § 24-8-804 (b) (3), a statement against interest shall not be excluded by the hearsay rule if the declarant is unavailable as a witness. A statement against interest is defined as a statement:

(A) Which a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate a claim by the declarant against another or to expose the declarant to civil or criminal liability; and (B) Supported by corroborating circumstances that clearly indicate the trustworthiness of the statement if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability[.]

OCGA § 24-8-804 (b) (3). The term “unavailable as a witness” includes situations when a declarant “[i]s absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance.” OCGA § 24-8-804 (a) (5).

“[OCGA § 24-8-804] establishes a two-step inquiry. First, a witness must be ‘unavailable’ as that term is defined in section 804 (a). Second, the testimony of the unavailable witness must fall within one of the categories of admissible evidence enumerated in section 804 (b).” Hamilton, 308 Ga. at 122 (3) (b), 839 S.E.2d 560 (citation modified). “The unavailability of a witness, therefore, is a statutory prerequisite that a proponent of hearsay evidence has the burden of proving, and that the trial court must evaluate, before a witness's [statement] may be admitted under Rule 804 (b) (1).” Id.

Because the trial court failed to perform either step of the required analysis under OCGA § 24-8-804 (b), we cannot properly discern whether the trial court abused its discretion in excluding the accomplice's statement. Accordingly, we vacate the trial court's judgment and remand the case for the trial court to perform the required analysis under OCGA § 24-8-804 (b). See generally Holmes v. State, 304 Ga. 524, 530 (a), 820 S.E.2d 26 (2018) (vacating the grant of a new trial and remanding the case to the trial court for it to apply the appropriate evidentiary standard in its analysis of whether a statement was admissible under the residual exception to hearsay); Spratlin v. State, 366 Ga. App. 607, 610-11, 883 S.E.2d 847 (2023) (vacating the trial court's judgment and remanding the case because the trial court failed to separately analyze the admissibility of statements under the Confrontation Clause and the hearsay exceptions). If on remand, the trial court determines the evidence was properly excluded under OCGA § 24-8-804 (b), it should enter an order to that effect and reinstate Chislom's conviction. See Gallegos-Munoz v. State, 319 Ga. 803, 820 (2) (f) n.23, 906 S.E.2d 711 (2024). If, however, the trial court determines that the statement was improperly excluded, it should consider whether Chislom was prejudiced by the error and conduct further proceedings if warranted. Id.

Judgment vacated and case remanded with direction.

FOOTNOTES

1.   We note that the State referred to this motion as an “oral motion to suppress” but the motion was actually a motion in limine to exclude evidence.

Rickman, Presiding Judge.

Doyle, P. J. and Padgett, J., concur.