Sagar Sharma v. State

THIRD DIVISION
DILLARD, P. J.,
GOBEIL and PIPKIN, 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

June 8, 2026

In the Court of Appeals of Georgia
A26A0376. SHARMA v. THE STATE.

DILLARD, Presiding Judge.

After trial, a jury convicted Sagar Sharma on one count of child molestation and

one count of sexual battery on a child under the age of 16 years. On appeal, Sharma

challenges his convictions and the denial of his motion for new trial. More precisely,

he contends the trial court erred in denying his right to be present at a critical stage of

the proceedings—a hearing on whether to admit evidence of his prior acts, during

which it ruled his counsel had express permission to waive his presence. For the

following reasons, we affirm Sharma’s convictions and the denial of his motion for

new trial.
Viewed in the light most favorable to the jury’s verdict,1 the record shows that

sometime in late 2015 or early 2016, N. C. and her parents—all of whom are

immigrants from India—moved to New York City and then to Alabama, where they

met Sharma. Knowing the family was looking for a place to live (as well as seeking

employment), Sharma offered both of N. C.’s parents jobs at a convenience store he

owned in Crawfordville, Georgia. Sharma also told N. C.’s family they could live in

a nearby home he owned. N. C.’s family accepted Sharma’s offer and moved to

Crawfordville. Initially, N. C.’s family stayed in the same home with Sharma and his

family, but the Sharma family later moved to Macon.

Despite residing in Macon, Sharma returned to Crawfordville once a week and

worked in the store’s office. In March 2016, when N. C. was 14 years old, Sharma

helped her with her studies (particularly English). As a result, Sharma spent a lot of

time with the child. Eventually, Sharma started sending N. C. sexually suggestive text

messages. Later on, during their tutoring sessions, Sharma began rubbing N. C.’s legs

and hugging her. On one occasion, Sharma tried to get N. C. to remove her clothes as

1
See, e.g., Libri v. State, 346 Ga. App. 420, 421 (816 SE2d 417) (2018) (noting
when a conviction is appealed, we view the evidence in the light most favorable to the
verdict, and the appellant no longer enjoys a presumption of innocence).
2
he hugged her. And on all of those occasions, Sharma warned N. C. not to tell anyone

about his actions, threatening that “things would not be good for her and her family”

if she did so.

Over the course of the next month, N. C. became emotionally withdrawn and

often cried in class such that her teachers noticed and asked her what was wrong. N.

C. told one of her teachers that she wanted to die and did not want to be touched by

anyone; but she did not disclose why she felt this way. N. C.’s parents were promptly

notified about her comments, but she did not disclose Sharma’s conduct to them. In

fact, Sharma drove N. C.’s father to the school that day to pick up his daughter; and

later, after picking up N. C. and then dropping her father off at the store to return to

work, he again warned her not to tell anyone about his actions.

A few weeks later, in early April 2016, Sharma and N. C. were alone in her

family’s home when he took off his shirt, removed N. C.’s shirt, and began touching

her breasts and hugging her. While this was happening, N. C.’s mother arrived home

and was surprised to find the door locked. As she knocked on the door and attempted

to unlock it, she saw Sharma buttoning up his shirt and leaving the room where her

daughter was located. Immediately, N. C.’s mother confronted Sharma. N. C. and her

3
family then returned to Alabama, where they eventually informed law enforcement

that Sharma had sexually abused N. C.

On August 28, 2017, the State charged Sharma, via indictment, with one count

of child molestation and one count of sexual battery against a child under the age of

16 years. And a few months later, the State filed a notice of intent to present evidence

of Sharma’s other acts under OCGA § 24-4-404(b), § 24-4-413, and § 24-4-414.

Sharma filed an objection, and the trial court scheduled a hearing on the matter.

The hearing was held on May 25, 2018. Shortly after the hearing began, the

State’s prosecutor stated that the purpose of the hearing was to determine whether

evidence of Sharma’s prior acts was admissible. A colloquy then took place between

the trial court and Sharma’s counsel, Cheryl Gracey:

The Court: Are you ready, Ms. Gracey?

Ms. Gracey: I am, Your Honor. And my client is not present. I advised
him of this hearing and told him that he has the right to be here, and he
declined to be here today.

The Court: He’s waived his appearance?

Ms. Gracey: Yes, sir.

4
The Court: I would ask you to put that in writing, have him sign it, and
file it as part of the record; all right?

Ms. Gracey: I will.

The hearing proceeded, and the State argued for the admission of an incident in which

Sharma inappropriately touched a former employee when she was 20 years old. At the

conclusion of the hearing, the trial court ruled the evidence was admissible, and it

issued an order to that effect, which noted that Sharma waived his right to be present.

On May 29, 2018, the case was called for trial, but Sharma did not appear. The

trial court issued a bench warrant for Sharma’s arrest; but after four months, he

remained a fugitive, leading his then-counsel (Gracey) to withdraw. Sharma remained

a fugitive for the next five years, until July 2023, when friends of N. C.’s family saw

him at a wedding in Alabama and immediately alerted law enforcement.

Finally, on January 3, 2024, Sharma’s trial began, during which N. C., her

mother, N. C.’s school teacher, law enforcement, and a forensic interviewer with a

child-advocacy center testified. A former convenience-store employee also testified

that Sharma touched her in a sexually inappropriate manner. At the trial’s conclusion,

5
the jury found Sharma guilty on the charges of child molestation and sexual battery

against a child under the age of 16 years.

Sharma filed a motion for new trial. In doing so, he argued, among other things,

that he was denied the right to be present at the hearing to determine the admissibility

of the prior-acts evidence—claiming he had not authorized his counsel to waive his

presence. The trial court then conducted a hearing on Sharma’s motion, in which his

former counsel, Gracey, testified in detail about her recollection of the prior-acts-

evidence hearing. After the hearing, the trial court denied Sharma’s motion. This

appeal follows.

In his sole enumeration of error, Sharma contends the trial court erred in

denying his right to be present at the hearing on whether to admit evidence of his prior

acts, arguing his former counsel lacked express permission to waive his right to be

present. We disagree.

The Supreme Court of Georgia has long held that the Georgia Constitution

“guarantees criminal defendants the right to be present, and see and hear, all the

proceedings which are had against him on his trial before the court.”2 Indeed, the right

2
Champ v. State, 310 Ga. 832, 839(2)(b) (854 SE2d 706) (2021) (punctuation
omitted). See Hurston v. State, 310 Ga. 818, 823(2)(b) (854 SE2d 745) (2021) (noting
6
to be present is “a fundamental right and a foundational aspect of due process of

law.”3 Importantly, the right to be present “attaches at any stage of a criminal

proceeding that is critical to its outcome if the defendant’s presence would contribute

to the fairness of the procedure.”4 And our Supreme Court has defined a “critical

stage” of a criminal proceeding as “one in which the defendant’s rights may be lost,

defenses waived, privileges claimed or waived, or one in which the outcome of the

case is substantially affected in some other way.”5 Importantly, violations of this due-

that our Supreme Court “has long recognized that a criminal defendant has a state
constitutional right to be present during all critical stages of the proceedings against
him” (quotation marks omitted)). See also Ga. Const. Art. I, Sec. I, Par. XII (“No
person shall be deprived of the right to prosecute or defend, either in person or by an
attorney, that person’s own cause in any of the courts of this state.”).
3
Hampton v. State, 282 Ga. 490, 491–92(2)(a) (651 SE2d 698) (2007). See
Tennessee v. Lane, 541 U.S. 509, 523(IV) (124 SCt 1978, 158 LE2d 820) (2004) (“The
Due Process Clause [of the Fourteenth Amendment] and the Confrontation Clause
of the Sixth Amendment ... both guarantee to a criminal defendant ... the right to be
present at all stages of the trial where his absence might frustrate the fairness of the
proceedings.” (punctuation omitted)).
4
Huff v. State, 274 Ga. 110, 111(2) (612 SE2d 785) (2001) (punctuation
omitted). Accord Ramirez v. State, 345 Ga. App. 611, 615(2) (814 SE2d 751) (2018).
5
Hardy v. State, 306 Ga. 654, 660(2)(b) (832 SE2d 770) (2019) (quotation
marks omitted). Accord Brewner v. State, 302 Ga. 6, 10(II) (804 SE2d 94) (2017).
7
process right are “presumed prejudicial, and, absent a waiver by the defendant,

require a new trial.”6

Here, Sharma argues the trial court denied his right to be present at the pre-trial

hearing to determine the admissibility of the prior-acts evidence, when it found he

provided his former counsel with express permission to waive his right to be present.

But Sharma’s contention begs the question of whether this was the type of proceeding

to which he even had a right to be present. As discussed above, this pre-trial hearing

did not involve witness testimony, but only legal arguments about the admissibility of

prior-acts evidence to which he would have made no meaningful contribution. As a

result, the discussion of the State’s motion to admit such evidence in Sharma’s

absence did not violate his constitutional right to be present.7 And we will affirm the

6
Brewner, 302 Ga. at 9(II). Accord Sammons v. State, 279 Ga. 386, 387(2) (612
SE2d 785) (2005).
7
See Hardy, 306 Ga. at 659–60(2)(b)–(c) (holding that discussion of
codefendant’s pretrial motions in defendant’s absence did not violate his
constitutional right to be present during all critical stages of the proceedings against
him given that such motions involved only legal arguments to which defendant would
have made no meaningful contribution); Brewner, 302 Ga. at 10(II) (explaining that
pre-trial hearings and bench conferences concerning purely legal issues, such as the
admissibility of evidence, ordinarily do not implicate the right to be present); Campbell
v. State, 292 Ga. 766, 770(4) (740 SE2d 115) (2013) (concluding that pre-trial
discussion of legal motions regarding excluding cross-examination of witnesses on
8
trial court’s denial of a motion for new trial under the “right for any reason” rule if

“the ultimate judgment was correct.”8

But even if we agreed that Sharma had a right to be present at the hearing on the

admissibility of prior-acts evidence, this right was violated. Indeed, the right to be

present at a critical stage of a criminal proceeding “belongs to the defendant, who is

free to relinquish that right if he or she so chooses.”9 And a defendant may relinquish

his right to be present if “he personally waives it in court; if his counsel waives it at

his express direction; if his counsel waives it in open court while he is present; or if his

counsel waives it and he subsequently acquiesces to the waiver.”10

certain topics was not a critical stage of trial requiring defendant’s presence to ensure
a fair hearing, and thus, defendant’s absence did not violate his constitutional right to
be present during trial). But see McClarity v. State, 234 Ga. App. 348, 354–55(4) (506
SE2d 392) (1998) (holding that, before enactment of the “new” evidence code, that
a defendant had the right to be present at a hearing under former Uniform Superior
Court Rule 31.3(B) to determine admissibility of similar-transaction evidence, but
noting that “nothing indicate[d] a waiver” on defendant’s part).
8
Gilmore v. State, 369 Ga. App. 305, 311(5) (893 SE2d 449) (2023) (quotation
marks omitted).
9
Ramirez, 345 Ga. App. at 616(2) (punctuation omitted). See Brewner, 302 Ga.
at 11(II) (explaining that “the right to be present belongs to the defendant, and he is
free to relinquish it if he so chooses” (quotation marks omitted)).
10
Hurston, 310 Ga. at 823(2)(b). Accord Ramirez, 345 Ga. App. at 616(2).
9
Here, the record shows that Sharma’s counsel, Gracey, waived his right to be

present at the pre-trial hearing at his express direction. As noted above, at the start of

the hearing, Gracey informed the trial court that Sharma was aware of the hearing and

his right to be present but decided to waive that right and not attend. The trial court

then directed Gracey to draft a document acknowledging that waiver and to have

Sharma sign it; and she responded that she would do so.

At the hearing on Sharma’s motion for new trial, Gracey testified that although

she had no specific recollection—from seven years ago—of communicating with

Sharma about waiving his right to be present at the hearing, based on the transcript

from that hearing, she believed she must have discussed the matter with him. And

when pressed on this point by Sharma’s appellate counsel, Gracey responded:

“[B]ased on the transcript and what I typically do in cases, I feel confident that I had

a conversation with him.” When further pressed, Gracey adamantly replied: “I don’t

remember having a conversation, but I know it had to have happened because I

wouldn’t have told the Judge that he waived his appearance if he didn’t.” She added

that, unlike her actions at the prior-acts-evidence hearing, normally if she expects a

client to appear and they do not, she calls her office and directs staff to contact the

10
client immediately; but the records of Gracey’s communications with her staff from

that day did not show Sharma’s absence was unexpected. Later in the hearing, Gracey

stated that she had, in fact, drafted a waiver of appearance, as the trial court directed;

and the State’s prosecutor then introduced that unsigned document into evidence.

Contrary to Sharma’s contention, this record shows that he gave Gracey

permission to waive his presence at the prior-acts-evidence hearing. Indeed, even

though Gracey did not recall “reaching the agreement with [Sharma], [her] testimony

concerning [her] standard practice and procedure authorized the trial court to

conclude that such an agreement had been reached.”11 The trial court did not err,

then, in crediting Gracey’s testimony and concluding that she waived Sharma’s right

to be present at the prior-acts-evidence hearing at his express direction.12

11
Ramirez, 345 Ga. App. at 617(2). See Jackson v. Hopper, 243 Ga. 41, 41–42
(252 SE2d 467) (1979) (holding that defense counsel’s testimony of his general policy
in advising defendants was sufficient to support finding that the defendant in that case
had been similarly advised, even though counsel had “no independent recollection”
of his conversation with the defendant (punctuation omitted)); Williams v. State, 334
Ga. App. 311, 312–13 (779 SE2d 91) (2015) (finding that defense counsel’s testimony
regarding his general practice when interacting with clients was sufficient to show how
counsel interacted with the specific defendant in that case).
12
See Ramirez, 345 Ga. App. at 617–18(2) (holding that defendant expressly
waived his right to be present at critical stage of proceeding based on former defense
counsel’s testimony that although he did not remember defendant agreeing he did not
11
The record also shows that Sharma acquiesced to the waiver. As the Supreme

Court of Georgia has explained, “[a]cquiescence may occur when counsel makes no

objection and a defendant remains silent after he or she is made aware of the

proceedings occurring in his or her absence.”13 And the question is whether the

defendant had “sufficient information concerning the proceeding occurring in his

absence to fairly construe his silence in this regard as acquiescence.”14

Here, regardless of whether Sharma knew the outcome of the prior-acts-

evidence hearing in 2018, given his flight—before his trial in 2024—he knew the State

intended to call his former employee as a witness. Sharma was also present during his

trial when the State called this witness, when the trial court provided the jury with a

preliminary instruction as to the limited purpose of the witness, and when the witness

actually testified. Yet, at no point did he object to this testimony based on the

need to attend bench conferences, counsel would not have misrepresented this fact
to the court if it had not occurred). See also Hampton, 282 Ga. at 492(2)(a)
(concluding that defendant waived right to be present during interviews with
individual jurors when defendant expressly directed his counsel to waive his right to
be present).
13
Hurston, 310 Ga. at 823(2)(b) (quotation marks omitted). Accord Burney v.
State, 299 Ga. 813, 820(3)(b) (792 SE2d 354) (2016).
14
Hurston, 310 Ga. at 824(2)(b) (punctuation omitted).
12
argument that its admissibility had been determined in his absence. Rather, the first

time he claimed that his right to be present at the prior-acts-evidence hearing had been

violated was in his amended motion for new trial, which was filed nearly a year and a

half after the jury rendered its verdict. Given these circumstances, Sharma acquiesced

to his absence from the 2018 prior-acts-evidence hearing.15

For these reasons, we affirm Sharma’s convictions and the denial of his motion

for new trial.

Judgment affirmed. Gobeil and Pipkin, JJ., concur.

15
See id. at 824–25(2)(b) (holding that defendant acquiesced to his counsel’s
waiver of his right to be present during the court’s meeting with witness, who
expressed fear to testify in court, given that defendant was present when witness failed
to enter the courtroom, when the court announced it would meet witness in a
conference room, and when witness testified in court, and thus, defendant’s right to
be present during trial was not violated); Scudder v. State, 298 Ga. 438, 439–40 (782
SE2d 638) (2016) (explaining that defendant acquiesced to his absence when the trial
court spoke with a witness in chambers about her refusal to testify, because the
defendant knew that he had been excluded from the meeting and the nature of the
discussion but did not object or ask for the transcript of the meeting to be provided to
him); Adams v. State, 316 Ga. App. 1, 6(2) (728 SE2d 260) (2012) (concluding that
defendant acquiesced to trial court’s ex parte decision to excuse a juror given that trial
court explained its decision and neither defendant nor his counsel objected).
13