text:
    A98A2018.
    CORLEY v. THE STATE.
    (512 SE2d 41)
   Smith, Judge.

Lester Leshon Corley was indicted on one count of trafficking in cocaine, OCGA § 16-13-31 (a). After his motion to suppress was denied, he stipulated to the remainder of the evidence, and the trial court convicted him of possession with intent to distribute cocaine. Corley appeals the judgment of conviction and sentence, contending that the trial court erred in denying his motion to suppress. Because we find that the warrantless search of Corley’s pocket was made without his consent and cannot be justified under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), we reverse.

In reviewing a motion to suppress, “[t]he evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639) (1990).

The evidence presented at the hearing on the motion to suppress showed that Georgia State Patrol Officer William Hitchens stopped Corley at a roadblock set up to check drivers for documentation such as licenses and proof of insurance. Hitchens noticed that Corley was not wearing his seatbelt and asked him for his driver’s license. When Corley responded that he did not have his driver’s license with him, Hitchens asked him to park his car on the shoulder of the road while he verified whether Corley had a valid driver’s license. After determining that Corley had a valid license, Hitchens asked him to step out of his car while Hitchens wrote citations for failure to wear a seatbelt and have a license on his person. Hitchens asked Corley to step out of the car because it was safer for both of them to move away from the road area. Hitchens testified that he planned to release Corley after writing these citations.

Hitchens was writing the citations in the presence of Corley and another officer, Ben Forehand, when Officer Mercer joined them. Mercer recognized Corley and told the other officers that Corley had been “associated with” or “messed with” controlled substances in the past. Mercer talked with Corley about his past and asked for permission to search his car. When Corley refused, Mercer left to obtain a search warrant after talking with Corley for an additional 15-30 seconds.

Hitchens then started a pat-down search of Corley to ensure that Corley did not have any weapons in his pockets. Hitchens also wanted to make sure he would not have to react in a manner that would harm Corley should Corley reach into his pockets. During this pat-down, Hitchens felt money in Corley’s pocket and asked him to remove it because weapons are sometimes hidden behind money.

Officer Forehand testified he saw a “small lump” or “bulge” in Corley’s right front watch pocket while Hitchens was counting the money in front of Corley. Forehand pointed it out to Hitchens and asked Corley to remove the object from his pants so “[h]e could see what it was.” Corley placed his index finger in the pocket and pushed the object down further into the pocket. Forehand then stated, “Mr. Corley, I asked you to pull it out, not to shove it down further. I want to see what it is.” Corley then “raked out” a small bag of green leafy material that appeared to be marijuana and “took off running.” After providing this testimony, Forehand agreed with the prosecutor’s statement that Corley removed the marijuana voluntarily at Forehand’s request.

Forehand testified that after Corley “took off running,” the officers chased him and caught him a short distance away. Corley fought with the officers, who used pepper spray to subdue and handcuff him. After Corley was arrested and transported to jail, the officers searched his car and found a black bag containing cocaine in the glove compartment.

Corley gave a different version of his encounter with the officers. He testified that he was not asked to step out of his car until after Officer Mercer recognized him and that Officer Mercer, not Officer Hitchens, asked him to step out of his car. At Hitchens’s request, Corley walked back toward Hitchens’s patrol car. Corley further testified that Hitchens said: “[W]ell I would like to search you, and he searched me. He frisked me down. He frisked me down twice. And he took the money out of my pocket, and that’s when he began to count the money. And he said, where you going with this money? I said, my grandparents are elderly folks and I pay their bills and I’m going grocery shopping for them. He said, this money — I said they pay their bills due around the first and the middle of the month. I said, but now since my father is not there, he’s working, I take care of that. He said, well can I search you? I said, yes, sir. So he searched me. And then that’s when Mr. Forehand say well he look like he have something in his pocket. And he said you turn around. That’s what he told me. I said, you just searched me. He said, what I told you, you turn around, like that.”

Corley testified that after he was directed to turn around, he stated again that he had already been searched and asked “what’s going on?” Corley testified that Officer Lanier, who was also present, told him to turn around, stop asking questions and do what he was told to do. After being instructed to pull out the contents of his pocket, Corley complied. Corley denied running away, and he claimed the officers hit him, hog-tied him, and used pepper spray after telling him he was under arrest. After providing this testimony, Corley agreed during cross-examination that he had consented to a pat-down search by the police officers.

After hearing this evidence, the trial court entered a written order denying the motion to suppress. The order recites: “Trooper Hitchens conducted a pat down of the defendant and removed a small lump from the defendant’s watch pocket which appeared to be marijuana.” The trial court did not determine whether Corley voluntarily consented to the search of his right front watch pocket.

1. On appeal, Corley contends the trial court erred when it denied his motion to suppress because the searches of his person and his automobile were without probable cause. The State asserts that the search of Corley’s person was warranted based upon officer safety and Corley’s consent.

(a) The officers were authorized to conduct a pat-down search of Corley’s person to ensure that he was unarmed. Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991). But even if Corley’s compliance with the officer’s direction to empty his pocket is characterized as a search of Corley’s watch pocket, it cannot be justified as a frisk for weapons under Terry v. Ohio, supra. “A frisk involves the patting-down of a person’s outer clothing by a police officer. Unlike a full search, a frisk is conducted solely for the purpose of insuring the safety of the officer and of others nearby, not to procure evidence for use at a subsequent trial. It must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. In other words, an extended search, exceeding the purpose of the frisk, would be constitutionally unreasonable, and any evidence thereby obtained must be excluded.

In Terry v. Ohio, supra, the court’s emphasis upon the procedures followed by the officer indicates that a two-step process must ordinarily be followed: (1) The officer must pat down first, and (2) then intrude beneath the surface only if he comes upon something which feels like a weapon. An officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.” (Citations and punctuation omitted.) Clark v. State, 208 Ga. App. 896, 900-901 (2) (432 SE2d 220) (1993).

The record in this case contains no testimony or facts showing that any of the officers felt a bulge in Corley’s watch pocket that they believed to be a weapon. It shows only that the officers saw the bulge after completing their frisk of Corley. No evidence was presented that the appearance of the bulge led the officers to believe it was a weapon. And the record does not show that Corley acted in a manner that led the officers to believe he was hiding a weapon in this pocket before he was asked to show the officers the contents of his watch pocket. Compare Pace v. State, 219 Ga. App. 583 (466 SE2d 254) (1995) (officer authorized to reach into pocket of defendant when defendant tried to reach into his pocket several times and officer reasonably believed defendant was reaching for a weapon).

As a result, the officers were not authorized under Terry v. Ohio, supra, to intrude into Corley’s watch pocket by directing him to remove its contents. State v. Williams, 220 Ga. App. 100, 101-102 (1) (469 SE2d 261) (1996); Barrett v. State, 212 Ga. App. 745, 748-749 (443 SE2d 285) (1994).

(b) Our analysis does not end here, however, because the State contends the search was consensual. “The State has the burden of proving the validity of a consensual search and must show the consent is given ‘voluntarily.’ Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973); Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983).” Clemow v. State, 196 Ga. App. 533 (1) (396 SE2d 302) (1990). The consent is not voluntary if it is “ ‘the result of duress or coercion, express or implied.’ ” Code v. State, 234 Ga. 90, 93 (214 SE2d 873) (1975).

“Normally we would rely upon the decision of the fact finder to determine the issue of consent, and if there was any evidence to support that finding the appellate court would not reverse such finding. [Cit.]” Radowick v. State, 145 Ga. App. 231, 239 (4) (244 SE2d 346) (1978) (physical precedent only). See also Howie v. State, 218 Ga. App. 45, 46 (3) (459 SE2d 179) (1995). But in this case, the trial court did not reach the issue of Corley’s consent because the trial court erroneously found that the officer felt the lump in Corley’s watch pocket during the frisk of Corley. Since the evidence is in conflict, we could remand this case to the trial court for a finding on the issue. See, e.g., Simmons v. State, 223 Ga. App. 781, 782-783 (479 SE2d 123) (1996). Our review of the record, however, persuades us that under either version of the facts Corley did not consent to the search of his watch pocket.

We are required to scrutinize closely an alleged consent to search. Code, supra. The voluntariness of consent is determined by the totality of the circumstances; no single factor controls. McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676) (1996). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect.” Id. The “appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” (Citations and punctuation omitted.) Weeks v. State, 206 Ga. App. 431, 433 (425 SE2d 421) (1992).

The record in this case shows that none of the officers ever claimed Corley consented to a search of his person. Instead, they testified that Corley was patted down to ensure he did not have any weapons. The only mention of consent comes from Corley’s own testimony, and it is unclear whether he consented to a search before or after Officer Hitchens found the money.

The scope of his consent is also ambiguous. Corley’s response during cross-examination by the State suggests he consented to a pat-down search only. What is clear, however, is that Corley either verbally questioned the first request to empty his watch pocket or refused to comply before being ordered unequivocally to do so. We are persuaded that a reasonable person would not have felt free to decline the repeated request to empty the pocket.

After considering the totality of the circumstances of this case, we find that the State has not met its burden of showing Corley voluntarily consented to the search of his watch pocket. See Rogers v. State, 206 Ga. App. 654, 660-661 (426 SE2d 209) (1992). Corley’s acquiescence to a repeated order to show the officers the contents of his watch pocket cannot be construed as voluntary consent. It is well settled that acquiescence cannot substitute for free consent. State v. Westmoreland, 204 Ga. App. 312, 313 (2) (418 SE2d 822) (1992); Miranda v. State, 189 Ga. App. 218, 221 (3) (375 SE2d 295) (1988); State v. Avret, 156 Ga. App. 527 (275 SE2d 113) (1980).

Decided February 8, 1999.

Larsen & Larsen, W. W. Larsen, Jr., for appellant.

Richard A. Malone, District Attorney, Jennifer E. Hildebrand, Assistant District Attorney, for appellee.

Our decisions in Aranda v. State, 226 Ga. App. 157, 159 (2) (486 SE2d 379) (1997); Harris v. State, 205 Ga. App. 813, 814 (423 SE2d 723) (1992); and Conley v. State, 180 Ga. App. 662, 663-664 (350 SE2d 45) (1986), do not alter this result. In each of those cases, unlike this one, the accused first explicitly gave consent for a search of his person; no evidence was presented that the defendant withdrew this consent or did anything that signaled a withdrawal before the contraband was revealed. In contrast, Corley first acted in direct disobedience of the officers’ request to empty his pocket before reluctantly complying.

2. The illegal search of Corley’s watch pocket tainted all evidence obtained as a result of this search. Phillips v. State, 167 Ga. App. 260, 261-262 (1) (a) (305 SE2d 918) (1983). Because this illegal search resulted in his arrest and the search of his car for inventory purposes incident to that arrest, the trial court erred when it denied Corley’s motion to suppress the cocaine found in his car. See generally Lackey v. State, 246 Ga. 331, 333 (2) (271 SE2d 478) (1980); Phillips, supra. The trial court erred when it convicted Corley based upon evidence that should have been suppressed and excluded from evidence. See Kelleher v. State, 187 Ga. App. 811 (2) (371 SE2d 450) (1988).

Judgment reversed.

Johnson, C. J., and Barnes, J, concur.

       We are therefore not dealing with a search incident to a custodial arrest for a traffic offense. Compare Baker v. State, 202 Ga. App. 73, 75 (1) (413 SE2d 251) (1991) (“Appellant’s custodial arrest for traffic violations being lawful, the inventory search pursuant to that custodial arrest was valid and appellant’s motion to suppress was properly denied. [Cits.]”).

       The State does not assert that the search was warranted by the “plain feel” doctrine established in Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) (1993), and there is no evidence in the record that warrants the application of this doctrine. See Williams, supra.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A2377.
    ATTAWAY v. THE STATE.
    (511 SE2d 635)
   Ruffin, Judge.

Ryan Attaway was charged with driving under the influence of alcohol. He moved to suppress evidence arising from his traffic stop, contending that the police officer had no articulable suspicion for the stop. The trial court denied the motion and granted Attaway’s request for a certificate of immediate review. We granted Attaway’s application for interlocutory appeal and reverse the trial court’s ruling.

“While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Corporal David Martin of the Fayette County Sheriff’s Department testified that, shortly before midnight on September 3, 1997, he received a radio call from the dispatcher to be on the lookout for a small red vehicle, possibly with a white driver. According to Martin, the dispatcher said that a caller had reported that the vehicle had circled around a subdivision several times on Misty Forest Drive. About ten or fifteen minutes later, Martin saw a small red vehicle turn off of Misty Forest Drive. Martin followed the car for between a quarter and a half mile, then decided to stop the car because it was on a road leading out of the subdivision. Martin did not observe any violations of law while following the vehicle, but testified that he stopped the vehicle because it matched the dispatcher’s description and because there had been many previous reports of vandalism in the area. He testified that he wanted to see if the driver had any valid reason to be in the neighborhood. Martin testified that, after stopping the vehicle, he smelled alcohol on the driver, Attaway.

“[Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The U. S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.” (Citations and punctuation omitted.) Hughes v. State, 269 Ga. 258, 259-260 (497 SE2d 790) (1998).

It is not necessary to consider whether the original call to the sheriff’s office came from an “anonymous tipster” or a “concerned citizen,” since Attaway’s conduct as described by the caller and observed by Martin did not justify an investigative stop. In Hughes, the Supreme Court reversed the denial of a motion to suppress in circumstances similar to the present case. The officer in that case stopped an individual because his conduct in driving through a neighborhood conformed to a “pattern” of behavior indicative of drug or prostitution transactions. Id. at 260. However, the Court held that “there is no objective manifestation that a person is, or is about to be, engaged in criminal activity merely because the person is a white man in a black neighborhood late at night, who picks up a black man at a location police consider a high-crime area, and who then drives slowly in a circular fashion through the neighborhood. While such behavior might justify an officer in closely observing the individuals engaged in that behavior, it is not alone sufficient to indicate that the individuals are or might be engaged in illegal activity so as to provide a reasonable, articulable suspicion to stop those individuals.” Id. at 261.

Decided February 8, 1999.

Ballard & Ballard, Scott L. Ballard, for appellant.

Steven L. Harris, Solicitor, for appellee.

In this case, there was even less basis for suspecting criminal activity on Attaway’s part. Assuming that Attaway’s car was in fact the one reported to police, the only arguably suspicious behavior by Attaway was driving around a subdivision several times late at night. No evidence was introduced that such activity violated any local ordinance or other applicable law, or that there was any other basis for the stop. While the police officer testified that there had been past incidents of vandalism in the area, the police received no information that Attaway had committed any such acts. Although, as in Hughes, the police might have been justified in closely observing Attaway’s actions, his behavior did not provide a “particularized and objective basis for suspecting [him] of criminal activity sufficient to justify an investigatory stop.” (Citations and punctuation omitted.) Id. at 260. Accordingly, the trial court’s denial of Attaway’s motion to suppress must be reversed. See Bonner v. State, 233 Ga. App. 215 (504 SE2d 27) (1998) (reversing denial of motion to suppress where officer observed no illegal activity but testified that driver had been “acting suspicious”).

Judgment reversed.

Pope, P. J., and Beasley, P. J., concur.


author: Beasley, Presiding Judge.

text:
    A98A2430.
    INGRAM v. RUFF et al.
    (511 SE2d 549)
   Beasley, Presiding Judge.

Ruff and his siblings brought this dispossessory action against Ingram. They are the grandchildren of Anna Ruff Castleberry and the stepgrandchildren of George Castleberry. Defendant is a son of Castleberry’s second wife, Maria Ingram Castleberry.

George Castleberry died testate in Hancock County in December 1969. He was predeceased by his first wife and survived by his second. Although he fathered no children, he assisted in rearing plaintiffs.

The benefits which Castleberry conferred upon his widow Maria under his will consisted of a bequest of $300 and a life estate in the parties’ marital residence. His will aiso contained an election clause directing that the benefits awarded to the widow were to be accepted by her in lieu of, and as a bar to, a year’s support. Plaintiffs were named as the remaindermen of the widow’s life estate, and Castle-berry’s brother was appointed sole executor.

In January 1970, the executor petitioned to probate the will in common form. After the will was probated, widow Maria filed a petition for year’s support on grounds that the benefits she received under the will were inadequate. The executor was served with a copy of this petition. Plaintiffs were not served. In April, the widow was awarded as year’s support an automobile valued at $100, fee simple title to the marital residence valued at $2,050, and $500 cash.

In January 1971, the executor sought discharge as executor of the will, stating he had delivered to the devisees named therein the lands devised and to the legatees the personal property bequeathed. In March, the court of ordinary issued letters of dismission.

The widow occupied the subject property until she died intestate in 1994. Her estate has not been administered. Claiming the property as heir at law of his mother because she was awarded fee simple title in the year’s support proceeding, defendant has taken possession of and refuses to vacate the premises. Plaintiffs claim fee simple title as remaindermen under the will of their stepgrandfather.

Plaintiffs moved for summary judgment on grounds that the year’s support award should be set aside in that: (1) as devisees under their stepgrandfather’s will, their due process rights were violated because they were not given personal notice of the year’s support proceeding; and (2) the widow was barred from instituting such proceeding by accepting benefits under the will. Defendant filed a cross-motion for summary judgment or to dismiss, contending that service on the executor was sufficient to satisfy due process in the year’s support proceeding and that the award is not subject to being set aside. The court granted plaintiffs’ motion and denied defendant’s. We allowed interlocutory appeal from the denial of defendant’s motion for summary judgment or to dismiss. He enumerates as error the denial of his motion and the grant of plaintiffs’.

Decided January 28, 1999

Reconsideration denied February 9,1999

H. Wilson Haynes, Jr., for appellant.

Joel D. Burns, for appellees.

1. Service of the application for a year’s support on the executor of decedent’s will satisfied due process requirements.

In Allan v. Allan, relied on by plaintiffs and the trial court, the holding of the Supreme Court was that “the statutory year’s support scheme which allows a final judgment to be obtained by a widow awarding her the decedent’s property in an unrepresented estate upon notice only by publication to persons who have a legally protected interest in the property is constitutionally impermissible.” The Allan Court, however, concluded that “[i]f the estate has a representative, [OCGA § 53-3-6] requires that notice of the application for year’s support be given to that person. That notice satisfies the requirements of due process. The representative’s obligation is to protect the interests of all interested persons. [Cit.]” Therefore, under Allan, plaintiffs’ due process rights were not violated. Moreover, Allan cannot be used to collaterally attack prior year’s support awards, such as the one in this case, as Allan is not to be applied retroactively.

2. The year’s support award is not subject to being set aside by reason of the election clause in Castleberry’s will.

It is true that where a testator makes provision for his wife in lieu of a year’s support, and she accepts such provision after her husband’s death, the right to a year’s support is barred. But it appears from the record that the widow received money and land from Castle-berry’s estate as a year’s support rather than as benefits under his will. Secondly, a motion to set aside a judgment must be brought within three years from its entry unless it is void for lack of personal or subject matter jurisdiction. Since the year’s support award is not void on jurisdictional grounds, it cannot now be set aside by plaintiffs.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

       Although defendant could have directly appealed the grant of plaintiffs’ motion for summary judgment and enumerated as error the denial of his motion, he also had the option of filing an application for interlocutory appeal. Southeastern Security Ins. Co. v. Empire Banking Co., 268 Ga. 450 (490 SE2d 372) (1997).

       236 Ga. 199 (223 SE2d 445) (1976).

       (Footnote omitted.) Id. at 206.

       Id. at n. 1.

       Id. at 208.

        Samples v. Samples, 107 Ga. App. 788, 790 (2) (131 SE2d 584) (1963).

       See OCGA § 9-11-60; Murphy v. Murphy, 263 Ga. 280 (430 SE2d 749) (1993).


author: Andrews, Judge.

text:
    A98A1671.
    In the Interest of C. S. et al., children.
    (511 SE2d 895)
   Andrews, Judge.

Patricia Smith, the biological mother of C. S., J. S. and N. S., appeals from the juvenile court’s order finding that her children were deprived and accepting the recommendation of the Department of Family & Children Services (Department) that reunification services were not appropriate. Finding no reversible error, we affirm the judgment of the juvenile court.

1. The mother argues on appeal that there was insufficient evidence to support the juvenile court’s determination that reunification should not be attempted. OCGA § 15-11-41 (i) provides that, “There shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that: (1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; (3) Any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-81; or (4) Any of the circumstances set out in paragraph (4) of subsection (b) of this Code section exist, making it unnecessary to provide reasonable efforts to reunify.”

Here, caseworkers testified to ten to thirteen years of involvement with the family. The children were finally removed permanently after Smith called a juvenile investigator from the sheriff’s department and told her she wanted C. S., who was 12 at the time, out of her home. Smith said she had argued with C. S., and the investigator’s notes showed that Smith had thrown C. S. down on the floor and spanked her “real hard.” Smith said that she wanted to sign a complaint against C. S. and have her taken to the Youth Detention Center (YDC). Although Smith was “adamant” in wanting C. S. out of the house, the investigator did not think C. S. belonged in the YDC and talked Smith into keeping the child until she could be placed in the Children’s Home.

The investigator said her next encounter with Smith was when she was called to the middle school after school personnel discovered bruises on J. S., C. S.’s younger sister, who was 11 at the time. J. S. said her mother had thrown her on the floor and hit her with a plastic stick. At this point, the investigator went to Smith’s home to remove the children. When she arrived, C. S., J. S. and N. S., their two-year-old half-brother, were at home alone. The house was very dirty with things all over the floor and holes in the walls. The children were not clean.

When Smith arrived, she did not seem upset that the two girls were leaving, but when she realized N. S. was also being taken away, she began screaming and hollering at the girls that it was all their fault that she was losing the baby.

An investigator with the Clayton County Department testified that in August 1985, when J. S. was barely a year old, she was admitted to the hospital for malnourishment, anemia, and failure to thrive. J. S. remained in the hospital for three weeks, and Smith never called to inquire how she was.

C. S. was living with relatives at the time, and the Department removed J. S. from the home and devised a case plan for reunification; however, Smith’s cooperation was “zero to minimal.” The Department also assigned a family service worker to the home to help show proper parenting and housekeeping skills. This woman worked with Smith for two years, but Smith showed no improvement in interacting with the children or in housekeeping.

When C. S. was two and a half years old, she was put in a Head Start program. Smith agreed to pay $3 a week, and the Department would pick C. S. up and take her home. Records showed Smith sent her only about one day a week. At about this same time, when C. S. was two, the Department received unconfirmed allegations of child abuse.

The Department returned J. S. to her mother in October 1986. In January 1987, the Department received a fourth referral and again took J. S. out of the home. The investigator also testified that the children were absent or tardy numerous times and this ongoing truancy became such a problem that Smith was arrested because of it.

A counselor from the middle school said that when she first saw C. S., she was very withdrawn and would not communicate. But, in the past year C. S. had shown real improvement. She said C. S. told her that her mother beat her and she was also worried about her younger sister.

A caseworker testified that despite repeated attempts to convince Smith that she needed to make sure C. S. went to school, Smith refused to do so. C. S. had 27 absences in the 1996-1997 school year; however, since C. S. was placed in foster care she had not been absent from school and her verbal skills and attitude in general had, improved. She stated that C. S. had not asked to go back to her mother.

The caseworker said J. S. was also improving tremendously in foster care and her grades were better. J. S. also did not mention going back to her mother’s home. Neither J. S. nor C. S. ever said they missed their mother and had “flourished” and “improved” in foster care.

Another counselor who had worked with the girls and Smith testified that in her opinion the girls did much better when they were not living with their mother and ought to remain out of the home.

The psychologist who evaluated the mother and both girls testified, stating that Smith had borderline personality disorders with moderate to severe psychosocial problems. He said that she denied responsibility, blamed other people and her children for problems and was not motivated to change. In his interviews with C. S. and J. S., they consistently described their mother as physically and verbally abusive. Both were very clear that they did not want to live with their mother. The psychologist stated that he did not believe the mother could give the two girls the environment or type of home they needed. He also said that as N. S. grows older, he would be, at significant risk of undergoing the same treatment as C. S. and J. S. and he did not believe any of the children should live with Smith.

Another Department caseworker testified and said Smith attended six out of eighteen parenting classes, had almost finished her anger management classes, and, other than that, had not completed her case plan. She did not complete individual counseling as required by the case plan, did not pay the child support required, and did not make significant progress on any other requirements of the plan. The caseworker said nonreunification was recommended based on the number of times the girls had to be removed from the home.

Smith testified and said she wanted all her children back home. She admitted not complying with the case plan in the past, but said she was starting counseling and the anger management classes had helped her with her parenting skills.

When asked how she expected to support three children when she did not work, Smith replied, “I’m hoping to get a job.”

The court found that the family’s problems had been going on for ten to thirteen years and only in the past few weeks had Smith attempted to comply with any of the Department’s requests. The children had been taken out of the home and put back several times, and the psychologist and all the caseworkers who testified recommended the children not be put back in Smith’s home. Therefore, based on the numerous allegations of abuse, the length of time the problems had existed, and Smith’s failure to attempt to make any changes, the court found it was in the best interest of the children to be settled in a stable environment and granted the nonreunification plan.

There was sufficient clear and convincing evidence from which the court could conclude that reunification services should not be provided. On appeal, “This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of R. N, 224 Ga. App. 202 (480 SE2d 243) (1997). Here, the evidence showed that the children were deprived due to Smith’s lack of parental care and the deprivation was likely to continue and cause serious harm to the children. There was evidence that Smith unjustifiably failed to comply with previous reunification plans, and the Department had to remove C. S. and J. S. from Smith’s home numerous times. OCGA § 15-11-41 (i). The court did not err in approving the nonreunification plan.

2. Smith also argues that the Department failed to comply with certain procedural requirements of OCGA § 15-11-41. OCGA § 15-11-41 (c) provides that when the Department removes a child from the home, they must submit a written report to the court within 30 days. The contents of the report are to be determined at a meeting held by the Department with the citizens review panel and the parents. The parents shall be given written notice of the meeting at least five days in advance. OCGA § 15-11-41 (c).

Smith admits the written report was filed within 30 days, but contends that because it was withdrawn, it was as though it was never filed. Smith does not support the statement with any argument or citation to authority, and we find none.

Smith also argues that she was not given the requisite five days notice of the meeting. This argument was never made in the juvenile court and, therefore, cannot be raised on appeal. In the Interest of C. A., 225 Ga. App. 46, 48 (482 SE2d 534) (1997).

Next, Smith claims the Department redrafted the report to the court on the same day they mailed her notice of the meeting and then sent the report to the court before the scheduled meeting. There is no evidence of this in the record. An appellant has the burden of showing error by the record. Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998). Arguments made in briefs do not add evidence to the record and cannot be considered. Brown v. Thomas, 191 Ga. App. 679, 680 (382 SE2d 656) (1989).

Smith also argues the meeting was held outside the 30-day period provided by statute. The transcripts show the meeting was reset several times due to various conflicts, once because the guardian ad litem was ill and also apparently due to conflicts of Smith’s own counsel. Although the procedural requirements of the juvenile court code have been held to be mandatory, such requirements can be waived. Sanchez v. Walker County Dept. of Family & Children Svcs., 237 Ga. 406, 408 (229 SE2d 66) (1976). Smith has not shown that it was the Department’s fault that the hearing was held outside the statutory time frame. Counsel may agree to reset or postpone hearings. See id. There was no error.

3. In her last enumeration of error, Smith claims the trial court’s order contained findings of fact which were not supported by the evidence. There is no merit to this enumeration.

Smith mistakenly claims the court found all of the children were removed from the home previously. The order does not state that fact. In addition, the juvenile court correctly found there was no relative placement available at the time without further evaluations.

Decided February 9, 1999.

Linda R. Wells, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Edea M. Caldwell, for appellee.

There was also sufficient evidence to show N. S. was a deprived child. The Code defines a “deprived child” as “a child who: (A) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. . . .” OCGA § 15-11-2 (8) (A). The evidence at the hearing describing the home life of all three children and Smith’s failure to comply with the Department’s requests was sufficient for the juvenile court to find that N. S. was a deprived child as defined by the statute.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.


author: Smith, Judge.

text:
    A98A1696.
    JOYNER v. SCHIESS.
    (512 SE2d 62)
   Smith, Judge.

This appeal arises out of the trial court’s dismissal of Montine Joyner’s medical malpractice action against Robert Schiess. The issue is whether Schiess waived his defense of insufficiency of service. Under the facts of this case, we hold that the trial court correctly concluded that Schiess did not waive the defense, and we affirm the dismissal of Joyner’s action.

Joyner filed a medical malpractice action against Schiess and three other defendants on March 4, 1996, arising out of alleged injuries that recurred during May 1994. Service was attempted on Schiess on March 7, 1996, but was not made on him personally. Instead, the summons and complaint were left with another individual “in charge of the office and place of doing business of said Corporation in this County.” Schiess, however, was sued individually, not as a corporation, and Joyner therefore was required to serve Schiess “personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.” OCGA § 9-11-4 (d) (7).

In his answer, Schiess asserted insufficiency of service of process as a defense. Also, in August 1996, in his verified response to Joyner’s interrogatory asking Schiess to explain the legal basis for his defense, Schiess stated that the individual to whom the summons and complaint were given was not authorized to accept service. In October 1997, Schiess moved to dismiss, contending that Joyner was guilty of laches by her failure to exercise due diligence, as required by OCGA § 9-11-4 (c). This motion to dismiss was filed before entry of a pretrial order. In response, Joyner did not maintain that Schiess’s motion was legally insupportable on the merits, but instead asserted that Schiess waived his defense by committing acts constituting general appearances. The trial court granted Schiess’s motion, concluding that waiver had not occurred.

The trial court correctly dismissed the complaint. Service was not perfected on Schiess as required by OCGA § 9-11-4 (d) (7), and Schiess did not waive the defense of insufficiency of service. Although Schiess may have participated in discovery and made certain motions in the trial court, he preserved the defense by specifically raising it in his answer. Roberts v. Bienert, 183 Ga. App. 751, 753-754 (2) (360 SE2d 25) (1987). Furthermore, he reasserted the defense in his responses to Joyner’s interrogatories. See Garrett v. Godby, 189 Ga. App. 183 (1) (375 SE2d 103) (1988). And he did not waive the defense after raising it. “After a party has properly raised such a defense, it will only be found waived if the party later engages in conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of its conduct is possible. [Cit.]” Heis v. Young, 226 Ga. App. 739, 740 (3) (487 SE2d 403) (1997). See also Marsh v. Wright Mem. Mortuary, 197 Ga. App. 736-737 (1) (399 SE2d 232) (1990). As in Heis, Schiess “engaged in no such conduct.” Id. at 740 (3). Unlike cases such as Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622 (396 SE2d 790) (1990) (physical precedent only) and Ga. Power Co. v. O’Bryant, 169 Ga. App. 491 (313 SE2d 709) (1984), Schiess did not waive his “procedural defenses by participating in substantial litigation on the merits, or by consenting to a pretrial order that did not list the procedural defense as a remaining issue.” Heis, supra at 740 (3).

Relying on Tate v. Leres, 59 Ga. App. 6 (200 SE 325) (1938), Joyner argues that Schiess committed several acts, constituting general appearances, that amounted to a clear relinquishment of his right to raise his insufficiency of service defense. She claims that waiver occurred when Schiess participated in consent motions to extend discovery and requested a continuance of mediation. She also argues that Schiess waived the defense by demanding, in his answer, a pretrial conference and a jury trial. Finally, she maintains that under the totality of these circumstances, waiver occurred.

These acts, whether considered individually or in their totality, did not constitute waiver. We first note that Tate is not controlling. In Tate, plaintiff filed a trover action, but no return of service was filed. Id. at 6. The case proceeded to trial, and a jury returned a verdict against defendant. Id. Defendant moved to set aside the verdict based on the defect in service. Id. Stating the rule that a general appearance waives all defects in process, id. at 10, this court concluded that defendant waived his defense because his counsel made a general appearance by requesting a continuance of the case prior to trial. Id. at 10-11. But Tate, unlike Roberts, supra, is not a case in which the defendant properly raised insufficiency of service as a defense in his answer. Schiess clearly raised the defense and then reasserted it in discovery responses. Furthermore, after properly raising the defense, Schiess did not act in a manner so clearly showing his intent to relinquish his defense that no other explanation is possible. His demands for a pretrial conference and for a jury trial were simply made in his answer, which served to preserve at an early stage of litigation any rights regarding these possible future events. As in Marsh, supra, in which we held that defendant did not waive his defense by filing a cross-claim, a motion to transfer, and a motion to join a necessary party, Schiess merely sought an affirmative action from the trial court by making these preliminary demands, not “affirmative relief for a claim.” Id. at 737 (1).

As for Schiess’s participation in consent motions for extension of discovery periods and requests for continuance of mediation, the explanation for Schiess’s conduct is clear: to gain time to pursue necessary discovery. And “[participation in discovery after the defense of insufficiency of service has been properly raised in an answer to a complaint does not constitute a waiver of the defective service. [Cit.]” Garrett, supra at 185 (2). Since participation in even extensive discovery is not necessarily a waiver of a properly asserted defense, id., it follows that seeking a continuance for discovery purposes does not constitute waiver of such a defense.

Bigley v. Lawrence, 149 Ga. App. 249 (253 SE2d 870) (1979), relied upon by Joyner, is distinguished from this case. Bigley states that a consent judgment extending a temporary restraining order constitutes waiver. Id. at 250. But here, the parties did not enter into a consent judgment. They merely asked that discovery be extended. Moreover, unlike Bigley, this is not a case in which the defendant filed a motion for summary judgment on the merits without first raising an issue as to insufficiency of service. Id. at 249. See also Roberts, supra at 753 (2). As discussed above, Schiess preserved his defense by raising it in his answer, and none of Schiess’s acts referred to by Joyner showed a manifest decision by Schiess to relinquish his defense. The trial court therefore correctly concluded that waiver of the defense did not occur.

Decided February 9, 1999

Gary P. Bunch, for appellant.

Hall, Booth, Smith & Slover, Mark A. Inman, Ashley D. Phillips, Timothy H. Bendin, for appellee.

We note that in response to Schiess’s motion to dismiss, Joyner submitted an affidavit in which her counsel stated that Schiess’s attorney told him that he did not intend to pursue the insufficiency of service defense. Such a statement was clearly hearsay, completely lacking in probative value. See, e.g., American Erectors v. Hanie, 157 Ga. App. 687, 689 (2) (278 SE2d 196) (1981) (full concurrence to Division 2); Skinner v. Humble Oil &c. Co., 145 Ga. App. 372, 374 (2) (243 SE2d 372) (1978). This statement therefore could not serve as evidence that Schiess waived his defense. Schiess’s defense of insufficient service was not waived, and the trial court properly dismissed Joyner’s complaint.

Judgment affirmed.

Johnson, C. J, and Senior Appellate Judge Harold R. Banke concur.

       Joyner also argues that Schiess waived the defense by objecting, during the hearing on his motion, to her dismissal of other defendants without prejudice. We do not even consider this argument, for it is not supported by any evidence of record. And unsupported assertions of fact in appellate briefs will not be considered by this court on appeal. See, e.g., Davis v. Gamble, 151 Ga. App. 155 (259 SE2d 159) (1979).


author: McMurray, Presiding Judge.

text:
    A98A1879.
    VEGA v. THE STATE.
    (512 SE2d 65)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of trafficking in cocaine in violation of the Georgia Controlled Substances Act. Defendant now challenges the denial of his motion for new trial and motion in limine to suppress cocaine that was found in his gym bag during a roadside search of a car in which he was a passenger. The facts relevant to these assertions, construed most favorably toward the trial court’s findings and judgment (Morgan v. State, 195 Ga. App. 732, 734 (3), 735 (394 SE2d 639)), reveal that defendant was a passenger in Jonnie Chesley’s car when it was stopped for displaying an expired Florida license plate. Officer A. L. Mitchum of the DeKalb County Police Department testified that he arrested Chesley because she could not produce a valid driver’s license or proof of insurance and because an on-the-scene computer check of Chesley’s name and birthday revealed that Chesley was driving with a suspended Florida driver’s license. Officer Mitchum testified that, after securing Chesley in his patrol car, he directed defendant and another passenger out of Chesley’s car, searched the car and found “a black gym bag that was located in the [car’s] rear passenger seat . . .” that contained cocaine. Officer Mitchum testified that he opened the gym bag and found a substance which field-tested positive for cocaine; that defendant then admitted owning the gym bag; that he searched the gym bag while “conducting a search pursuant to [Chesley’s] arrest . . .” and that he did not turn Chesley’s car over to her passengers because “the combination of the expired license plate, no insurance, the vehicle was going to be impounded anyway.” Held:

Defendant contends the search of Chesley’s car cannot be justified because there was nothing which authorized his arrest prior to Officer Mitchum’s search.

Since Chesley was lawfully arrested for operating a car without a driver’s license and for not having proof of insurance (Wilder v. State, 192 Ga. App. 891, 892 (386 SE2d 685)), Officer Mitchum “did not exceed the permissible scope of a search incident to arrest under the Fourth Amendment, the Georgia Constitution or OCGA § 17-5-1. [To this extent, we must recognize] the broad scope of authority granted to police officers in conducting searches of automobiles pursuant to the search incident to arrest exception. In this situation, the authority to search extends to the entire passenger compartment of the automobile and any closed containers therein. See New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981); State v. Elliott, 205 Ga. App. 345 (422 SE2d 58) (1992).” (Emphasis omitted.) Bagwell v. State, 214 Ga. App. 15, 17 (446 SE2d 739).

Defendant cites Bowen v. State, 210 Ga. App. 348, 349 (1) (436 SE2d 76), and State v. Corley, 201 Ga. App. 320 (411 SE2d 324), contending the warrantless search of his gym bag was invalid absent probable cause or his consent. We do not agree. Bowen and Corley are distinguishable from the case sub judice because the warrantless searches in those cases were not conducted pursuant to lawful arrests. Because defendant’s gym bag was found in Chesley’s car just after she was lawfully arrested, it was subject to being searched incident to that arrest. Wilder v. State, 192 Ga. App. 891, 892, supra.

The trial court did not err in denying defendant’s motion to suppress and his motion for new trial.

Decided February 9, 1999.

Daniel E. Gavrin, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Lawrence Delan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       Because the search of defendant’s gym bag was valid pursuant to a lawful arrest, we do not address defendant’s assertion that the search of Chesley’s car was pursuant to the unauthorized impoundment other car. Compare Gooden v. State, 196 Ga. App. 295, 297 (395 SE2d 634).


text:
    A98A2005.
    THE STATE v. GALLUP.
    (512 SE2d 66)
   McMurray, Presiding Judge.

Defendant was charged with possession of marijuana with intent to distribute, after police seized three large plastic bags containing approximately thirty pounds of marijuana from a refrigerator discovered in a self-storage bin rented by defendant. Defendant conceded that, in the course of investigating vandalism and possible burglary, Investigator James Vick of the Albany Police Department had a right to enter Unit 61 but argued the officer had no right to open the closed refrigerator found therein.

The facts are undisputed: This seizure was conducted pursuant to a warrant. But that warrant was issued based upon information obtained by an earlier warrantless opening of a closed and operating refrigerator in a storage unit rented by defendant, one of eighty-three other such units vandalized by unknown persons in a single night.

When Christy Brown, co-owner of Mann’s Moving & Storage, arrived at the scene some time after 8:15 a.m. on August 4,1997, everything was in disarray. Someone had taken “some type of crowbar device and a mallet ... to get the lock mechanism off . . .” each damaged unit. Almost all the units, including Unit 61, were left open, that is, with the roll-top doors ajar. It was Investigator Vick who called Brown’s attention to Unit 61, containing the refrigerator. Brown confirmed her standard rental contract does not expressly forbid renters from plugging refrigerators into the electrical outlet for the overhead light, but the agreement does contain a clause whereby “ ‘[t]he occupant agrees that the property will not be used for any unlawful purpose. . . .’” The agreement also gave the owner permission, “ ‘with or without notice to occupant, [to] enter the leased space for purposes of inspection, to make repairs or alterations, or in any case of fire or other emergency.’ ” Brown considered this event to be an emergency.

When Investigator Vick entered Unit 61, he was looking for “[ajnything that would identify the owner and any physical evidence such as latent prints. . . . The first thing [he] saw was a four wheeler. [Investigator Vick] had just recently worked a case [involving stolen] four wheelers ... [so he] bent and got the VIT number which is on the Ford and ran it[, but it turned out not to be stolen property], [He] also noticed a small, compact, 3 foot refrigerator. . . . [Investigator Vick] went into the refrigerator . . . [l]ooking for anything that would identify the victim. Possibly prescription medications with the victim’s name on it. Anything. . . . [He] saw what appeared to be 3 pounds of marijuana . . . [i]n a plastic baggie. . . . When [he] saw [this, Investigator Vick] closed the refrigerator. [He] saw Christy Brown down at the exact opposite end of the storage unit from where [he] was. She was talking to some of her co-workers. [Investigator Vick] called her down ... to the unit and advised her that she might want to look into the unit[, specifically] referring to . . . [t]he refrigerator.” Investigator Vick sealed Unit 61 and notified his superior. When narcotics investigators arrived, Investigator Vick turned the matter over to them.

Investigator Vick confirmed he had no reason to believe anything was missing from Unit 61 when he inspected it; there “were very few items in that unit and they were very large items. Four wheeler, a desk and a refrigerator. . . . [Investigator Vick understood that he] needed to get in touch with [the renter] to find out if he had lost anything.” He also understood “[t]here would be no need to take an inventory of what was still in the unit.” Officer Kenneth Dwayne Johnson, an investigator with the Albany Dougherty Drug Unit, was the affiant in support of the search warrant. He confirmed his personal knowledge was obtained when Investigator Vick “pointed out something to [him, namely] 3 large ziplock bags of marijuana . . . located inside the refrigerator.”

Pursuant to OCGA § 5-7-1 (a) (4), the State appeals from the trial court’s order granting defendant’s motion to suppress. Held:

1. The trial court ruled that defendant had a reasonable expectation of privacy in the contents of the refrigerator and that opening the refrigerator by Inspector Vick was a search, i.e., a quest for information by a state agent, that “was not supported by a warrant!, nor] based on a plain view observation from a lawful vantage point [because that act exceeded] the scope of his legitimate presence within Unit 61.” The trial court further ruled that the inevitable discovery rule was inapplicable, and that no other basis existed for authorizing this warrantless search not based upon probable cause to believe the refrigerator contained contraband. The State’s first enumeration contends the trial court erred in granting the motion to suppress because “the evidence seized was in plain view.”

(a) “While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where [, as here,] the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474).

(b) “The Georgia constitutional provisions regarding search and seizure, Art. I, Sec. I, Par. XIII, are substantially the same as the Fourth Amendment provisions of the U. S. Constitution. [Cit.]” Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664). “Thus, the constitutional protection has been held to extend to people, houses, automobiles, boats, the area within the curtilage of a house, apartments, hotel rooms, public telephone booths, offices, desks, and a coin-operated locker in a bus station.” (Footnotes omitted.) Daniel, Ga. Criminal Trial Practice (1997), § 4-2. Consequently, we disagree with the State’s contention that defendant had a diminished expectation of privacy in the closed container (refrigerator) in the once-locked storage unit he rented. See, e.g., State v. Stewart, 191 Ga. App. 750 (382 SE2d 677), judgment adhered to after remand, 203 Ga. App. 829 (418 SE2d 110).

(c) We agree with the trial court that the marijuana contained in an operating, closed refrigerator was not in the plain view of Investigator Vick. “[I]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. The plain view exception to the warrant requirement is based on the analysis that the particular item of incriminating evidence has not been discovered as the result of a search. Plain view is best understood not as an independent exception to the Warrant Clause but simply as an extension of whatever prior justification might exist for an officer’s access to an object or situation. The plain view doctrine does not give an officer carte blanche to pick up any article his eyes might light upon, but where he is lawfully on the premises and while properly there sees in plain view what may be evidence relating to, and instrumentalities of, a crime in the immediate vicinity . . ., the preservation of the evidence may be justified under the exigent circumstances rule.” (Citations, punctuation and emphasis omitted.) Galbreath v. State, 213 Ga. App. 80, 82 (2), supra. But the “plain view” doctrine comes into play only after the police are legally in a position to view the contraband. Au v. State, 258 Ga. 419 (369 SE2d 905).

In the case sub judice, the lawful extent of Investigator Vick’s presence in Unit 61 was limited by the nature of the emergency, namely, to investigate vandalism and possible burglary. A limited intrusion is “justified by an officer’s reasonable belief that (1) the building’s owner or [lawful] occupants [such as defendant] would not object to the intrusion, and (2) circumstances are sufficient to give the officer an ‘articulable suspicion’ that unauthorized persons are [still] on the premises [or that perishable evidence may be lost]. [Cits.]” Banks v. State, 229 Ga. App. 414 (2), 417 (493 SE2d 923). The presence of the refrigerator was odd, but not itself illegal nor a material breach of the rental agreement. There was nothing suspicious or dangerous about that refrigerator that would authorize a non-consensual warrantless search. The marijuana was not in anyone’s view until Investigator Vick opened the refrigerator door. But by opening the door, Investigator Vick exceeded, in our view, the lawful scope of his permission to be in Unit 61 to investigate vandalism and burglary. We are not persuaded by the State’s argument that Investigator Vick was exercising a legitimate community “caretaker” function, since he had no intention of impounding the refrigerator for safekeeping or taking an inventory of items still remaining in the unit. Compare Newman v. State, 216 Ga. App. 73, 74 (1) (453 SE2d 117). The State failed to show that Investigator Vick was, under Georgia law, entitled to open the closed refrigerator. The trial court correctly ruled that the “plain view” doctrine was inapplicable to justify the initial non-consensual warrantless search.

2. The State next contends that exigent circumstances at the time authorized a warrantless search, because Investigator Vick was “called to the scene of eighty [-some possible] burglaries!, where one] section of the security fence . . . was down[; the] doors of the units were in various states of disrepair [; property] from many of the units was scattered out between the buildings [; and] the officer had a duty to assist in . . . securing this property before looters and or the elements exacerbated the situation.”

The presence of contraband without more does not give rise to exigent circumstances. Davis v. State, 262 Ga. 578, 582 (2) (422 SE2d 546). This investigation commenced around 8:15 a.m., apparently long after the marauders departed. Securing the entire property would be good police work, emergency or no, simply to maintain the status quo while renters are notified to come examine their units and determine whether anything was stolen. But opening the refrigerator door without the owner’s consent would not enable the officer to determine whether anything was missing. “ ‘We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment [and perforce Art. I, Sec. I, Par. XIII of the Georgia Constitution (1983)] [do] not bar police officers from making warrantless entries and searches when they reasonably believe that a person is in need of immediate aid. Similarly, when police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. . . .’ [Cit.]” Gilreath v. State, 247 Ga. 814, 818 (1), 820 (279 SE2d 650). But the circumstances presented in this case do not rise to the level of emergency involving immediate threats to life or limb. There is in Georgia no “good faith” exception to our statutory exclusionary rule, OCGA § 17-5-30. Gary v. State, 262 Ga. 573 (422 SE2d 426). In our view, the trial court correctly determined that no exigent circumstances justified the warrantless non-consensual search of defendant’s closed refrigerator in his vandalized storage unit.

Decided February 9, 1999.

Kenneth B. Hodges III, District Attorney, Robert E. Perrine, Jr., Assistant District Attorney, for appellant.

Donaldson, Bell & Pickett, George P. Donaldson III, Reginald J. R. Bell, Jr., for appellee.

3. Our affirmance based upon principles of Georgia law renders it unnecessary to determine whether this search would be authorized under a federal constitutional analysis.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2035.
    ESQUIVEL v. THE STATE.
    (512 SE2d 61)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of a sole count of aggravated child molestation. He appeals from the judgment of conviction, enumerating as error the overruling of his motion for new trial on the special ground of ineffective assistance of counsel. Held:

“In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that defense counsel’s performance was deficient, and (2) that the defense was prejudiced by the deficient performance, i.e., show a reasonable probability that but for the trial counsel’s [un]professional errors, the result of the proceeding would have been different. [Cit.]” Etheridge v. State, 210 Ga. App. 96, 97 (435 SE2d 292).

Here, defendant lists 19 specifications where trial counsel’s performance allegedly fell below the level of reasonably effective assistance that members of the Bar in good standing are presumed to render. See Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245). Defendant did not urge that trial counsel was unprepared. Rather, he argues only trial counsel’s stated “desire [not] to follow standard defense trial interrogation,” i.e., to avoid the use of term “alleged” in describing victims or characterizing their testimony. Trial counsel defended his tactic, precisely because that term was “standard defense terminology, [which trial counsel] wanted to avoid ... at all costs.” Trial counsel explained he wanted to avoid antagonizing an intelligent jury with defense jargon. He had a theory that “defendant had been set up by his wife, who was divorcing [defendant], and she had essentially planted concepts in the minds of her children and . . . planted evidence that [his] client had molested . . . children.”

Decided February 9, 1999.

Gaines C. Granade, for appellant.

Daniel J. Porter, District Attorney, Pamela D. South, Assistant District Attorney, for appellee.

“The decisions on which witnesses to call, whether and how to conduct cross-examinations, which jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1), 79 (447 SE2d 74). In the case sub judice, it is not necessary to address specifically and individually each and every one of defendant’s numerous instances of challenged trial tactics. It is sufficient to note that strategic choices made after thorough investigation are virtually unchallengeable. Stephens v. State, 265 Ga. 120, 121 (2), 122 (453 SE2d 443). We have reviewed the transcript of the hearing where trial counsel defended his decisions and find ample evidence to support the trial court’s conclusion that defendant failed to show ineffective assistance under the standards of Strickland v. Washington, 466 U. S. 668, 690 (104 SC 2052, 80 LE2d 674). Consequently, the denial of defendant’s motion for new trial on this special ground is affirmed. Smith v. State, 256 Ga. 483 (351 SE2d 641).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2047.
    DWYER v. McCOY et al.
    (512 SE2d 70)
   Andrews, Judge.

L. David Dwyer sought a declaratory judgment as to the validity of two agreements concerning real property which he leased for the operation of a business. The first agreement was a lease under which Dwyer leased the property for a ten-year term from Ruby Smith. Ruby Smith held only a life estate in the property given to her in a deed from her father which provided that after Smith’s death the remainder interest in the property vested in Smith’s children, Barbara Smith McCoy and Edgar H. Smith, Jr. Dwyer sought a declaration that the lease remained valid after Ruby Smith died three years into the lease term. The second agreement at issue granted Dwyer a right of first refusal to purchase the leased property in the event it was sold. The right of first refusal agreement, which referred to the deed granting the life estate and remainder interest, was signed by Dwyer, Ruby Smith, and Edgar Smith, but not by Barbara McCoy. Dwyer sought a declaration that this agreement also remained valid at least as to the obligation of Edgar Smith. As an alternative to a declaration enforcing the agreements, Dwyer sought damages for breach of the agreements and other damages to his lease interest. Named as defendants in the action were McCoy, individually and as executrix of the estate of Ruby Smith, and Edgar Smith.

The trial court granted a motion for summary judgment brought by McCoy, individually and as executrix of the estate of Ruby Smith, and Dwyer appeals.

1. In granting summary judgment, the trial court correctly concluded that the lease agreement between Ruby Smith and Dwyer was void upon the death of Ruby Smith. The deed under which Ruby Smith held an interest in the leased property granted her only a life estate and at her death granted the remaindermen, Barbara McCoy and Edgar Smith, the right to possession and title to the property. Lanier v. Register, 163 Ga. 236 (135 SE 719) (1926). Because she held only a life estate in the leased property, Ruby Smith could not have granted Dwyer a longer term of possession in the property than she had. Id.; Williams v. Durham, 77 Ga. App. 840, 841-842 (50 SE2d 373) (1948). After the death of Ruby Smith, the lease was void and gave no title or interest in the property to Dwyer. Johnson v. Grant-ham, 104 Ga. 558, 560 (30 SE 781) (1898); Phillips v. Sexton, 243 Ga. 501, 504 (255 SE2d 15) (1979).

2. Contrary to Dwyer’s contention, the trial court did not err in finding that Dwyer was a tenant at will as to the property. After the death of Dwyer’s lessor, Ruby Smith, who held only a life estate in the property, Dwyer became a tenant at sufferance without any title or interest in the property. Fallin v. Rule, 194 Ga. App. 865, 866 (392 SE2d 314) (1990). Dwyer’s tenancy at sufferance was converted to a tenancy at will after McCoy, who acquired Edgar Smith’s interest in the property, gave Dwyer express permission to remain in possession of the property and pay rent as a tenant at will. Solon Automated Svcs. v. Corp. of Mercer Univ., 221 Ga. App. 856, 860 (473 SE2d 544) (1996).

3. The trial court also correctly concluded that the right of first refusal to purchase agreement was unenforceable because it was signed only by Ruby Smith and Edgar Smith, but not by Barbara McCoy. As stated in Division 1, supra, Ruby Smith held only a life estate in the property, and at her death the property vested in the remaindermen, Barbara McCoy and Edgar Smith. Under the deed vesting the property in McCoy and Edgar Smith, each received an undivided interest in the whole property. Under the right of first refusal to purchase agreement, Dwyer sought the right to purchase the interests of all the owners of the property, and signature lines were provided for each owner’s signature. Nothing in the agreement indicated that Dwyer intended to purchase any individual interests or that McCoy or Edgar Smith intended to sell their interests individually. The clear intent of the parties was that the agreement was to be signed by all the owners before it became binding on those who signed it. It follows that, in the absence of McCoy’s signature, the agreement was incomplete and unenforceable. Turnipseed v. Jaje, 267 Ga. 320, 324-325 (477 SE2d 101) (1996); Abernathy v. Grant, 232 Ga. 880, 882 (209 SE2d 210) (1974).

4. Based on the holdings in Divisions 1 and 3, supra, that the lease agreement was void and the right of first refusal to purchase agreement was unenforceable, the trial court correctly granted summary judgment against Dwyer on his claims for breach of these agreements.

5. The trial court erred, however, in granting summary judgment against Dwyer on a claim for damages to his lease interest as a result of Ruby Smith’s death prior to the expiration of the lease term. Although this claim was not explicitly set forth, the complaint may be reasonably construed under the liberal pleading requirements of the Civil Practice Act as making this claim against McCoy, as the executrix of the estate of Ruby Smith. OCGA § 9-11-8 (f). In effect, Dwyer contended that Ruby Smith’s statement that she “owned” the property when she leased it to him without revealing she held only a life estate was a misrepresentation that, coupled with her death prior to the end of the agreed lease term, caused a breach of the implied covenant of quiet enjoyment in the lease.

“A covenant for quiet enjoyment of the premises is necessarily implied in every lease [and goes] to the extent of engaging that the landlord has a good title and can give a free and unencumbered lease of the premises for the term stipulated. . . .” Adair v. Allen, 18 Ga. App. 636 (2) (89 SE 1099) (1916). As stated in Division 1, supra, where a life tenant leases the premises and then dies before the lease term expires, the unexpired term of the lease is void. In that case, the lessee may recover damages from the life tenant’s estate for breach of the covenant of quiet enjoyment, as long as the lessee did not have actual knowledge that the lessor held only a life estate. See In re Hunt’s Estate, 197 NYS 633 (Surr. Ct. 1923); In re O’Donnell, 147 NE 541 (N. Y. App. 1925); Dupree v. Worthen Bank &c. Co., 543 SW2d 465 (Ark. 1976); 171 ALR 489, 491 (1947), Annotation, Death of Life Tenant as Affecting Rights Under Lease Executed by Him.

The lease at issue does not reflect that Ruby Smith held a life estate in the premises, and Dwyer testified that he learned she had a life estate in the property only after she died. The record shows that, with the permission of McCoy, Dwyer remained in possession of the property after the death of Ruby Smith. However, he was allowed to retain possession and pay rent, not for the remainder of the ten-year term of the original lease, but only as a tenant at will of McCoy. Dwyer contends his business was damaged because, as a tenant at will subject to loss of possession on short notice, it is no longer reasonable for him to use the property and make the business improvements he was entitled to make under the ten-year term of the original lease. Under the circumstances, Dwyer’s loss of the ten-year term under the lease with Ruby Smith and his continued possession as a tenant at will under McCoy’s paramount title amounted to a constructive eviction sufficient to allow him to seek damages from Ruby Smith’s estate for breach of the implied covenant of quiet enjoyment. See In re O’Donnell, 147 NE at 542-543; 1 Tiffany, Law of Real Property, § 92 (3rd ed. 1939); 19 Encyclopedia of Ga. Law, Landlord & Tenant, § 40 (1993 rev.). Dwyer’s continued possession of the property, though merely as a tenant at will, is a factor to be considered in reduction of the damages. In re O’Donnell, 147 NE at 543.

In dismissing this claim, the trial court found that Dwyer could not show that the alleged misrepresentation caused the damages he claims because he was deemed to have constructive knowledge of the deed giving Ruby Smith a life estate in the property, which was recorded on May 30, 1950, in the Gwinnett County real property records at deed book 95, page 409. We disagree with this conclusion. Dwyer was not required to conduct a search of the real property records to discover prior to executing the lease that Ruby Smith held only a life estate in the property. Rather, in the absence of actual knowledge that the lessor held only a life estate in the property, Dwyer was entitled to rely on the terms of the lease and the implied covenant of quiet enjoyment as representing that the lessor had sufficient title to lease him the property for the term stipulated. Adair, 18 Ga. App. at 636.

Decided February 9, 1999.

McCrimmon & McCrimmon, Edward W. McCrimmon, for appellant.

Glass, McCullough, Sherrill & Harold, Paul M. Baisier, Miller & Martin, William A. DuPre IV, John W. England, for appellees.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Ruffin, J., concur.

       We find no merit in Dwyer’s arguments that the record does not adequately show the existence of the recorded deed and that it does not reflect that Barbara McCoy and Edgar Smith were the remaindermen under the deed giving a life estate to Ruby Smith with remainder “at her death to her children.” In responding to McCoy’s summary judgment motion, Dwyer relied on Exhibit 1 to McCoy’s motion to support his argument that “[t]he life estate under which McCoy and Edgar [Smith] claim as remaindermen is a deed from [Ruby] Smith’s father to [Ruby] Smith and ‘at her death to her children.’ ” Exhibit 1 relied upon by Dwyer was a copy of the deed recorded on May 30, 1950, in the Gwinnett County real property records at deed book 95, page 409. Moreover, the right of first refusal to purchase agreement as to the property asserted by Dwyer refers to the deed to Ruby Smith from her father recorded on May 30, 1950, at deed book 95, page 409 of the Gwinnett County real property records. Under these circumstances, the existence and content of the recorded deed were clearly acknowledged by Dwyer. As to the remaindermen under the deed, McCoy deposed that she and her brother, Edgar Smith, as the children and heirs of Ruby Smith, were the remaindermen.


text:
    A98A2095.
    JONES v. THE STATE.
    (511 SE2d 883
   McMurray, Presiding Judge.

Defendant was charged in an indictment with armed robbery, kidnapping, and two counts of aggravated assault during the holdup of a convenience store. Viewed in the light most favorable to the jury’s verdicts, the evidence revealed the following:

Defendant was captured on videotape as he entered a Speedway convenience store at Lee Road and Interstate 20 in Douglas County, Georgia, at approximately 3:00 a.m. Donald William Florville, the 65-year-old cashier, was working the store alone. Defendant “slapped his chest like this (indicating). He said you see I’ve got a bulge here and that bulge is a gun. And he says if I have to use it I will. And he said now I tell you what I want you to do. He said I want you to empty both cash registers and put the money in a paper bag and hand it to me. . . . [Florville] went over to the other register and started taking the money out and putting it in . . . one of those brown paper bags . . . [a]nd [defendant] kept hollering ... to hurry up, hurry up. . . . [W]hen [defendant] said he had the gun, he then slipped his hand underneath his light jacket he had on and when he slapped the bulge as he calls it [,] he wasn’t hitting skin. He was hitting something hard, such as a holster or a weapon. Then when he stuck his hand up underneath the jacket he gripped. [Based on Florville’s 11 years experience as a military policeman, he] took it that [defendant] was gripping the round edge of a pistol and [Florville] believed [defendant] had a pistol.” Defendant left with more than $400. Florville never actually saw defendant display a gun.

Deputy Timothy Bearden of the Douglas County Sheriff’s Office happened to be parked across the street from this convenience store. His curiosity was aroused when defendant drove in and backed his vehicle into a parking space. “As [defendant] started to come out of the store he took about one step and broke off into a run to his vehicle. . . . [D]ue to [his ten years of] law enforcement experience [Deputy Bearden had] a pretty good idea that a robbery probably just took place,” so he pursued defendant’s vehicle. When Deputy BeaYden called in the license plate, he was advised to use caution because an armed robbery at that convenience store had just been reported and the deputy was pursuing the suspect vehicle. Defendant exited 1-20 at Thornton Road “and at that time [Deputy Bearden] saw [defendant’s] brake lights come on. He [defendant] struck another deputy patrol vehicle that was on Thornton Road. He hit them T-boned, and when [Deputy Bearden] exited [his] vehicle . . . there was a lot of smoke and steam. [He] couldn’t exactly see the vehicles, and that’s when [Deputy Bearden] heard a couple of shots being fired [so he] took cover at that time.” When defendant drove back onto 1-20, Deputy Bearden stayed behind and checked on Deputy Partin, who was injured in the crash.

Douglas County Sheriff’s Deputy Damon Partin was on Thornton Road in a marked patrol vehicle when the dispatcher reported an armed robbery at the convenience store as well as Deputy Bearden’s report that he was following the suspect’s vehicle on the interstate going east toward Atlanta. As he got on the ramp to enter the interstate, Deputy Partin saw defendant exit at Thornton Road followed by Deputy Bearden and a uniformed officer in a marked patrol car. Deputy Partin “turned around and came back up the ramp with [his blue] lights on. When [he] got to the top of the ramp . . . [defendant’s] maroon station wagon came straight through the intersection and hit [Deputy Partin’s] car [which was] stopped at the intersection. . . .” The patrol car was not positioned as if to blockade defendant’s path. “There are several lanes [at this intersection] and [Thornton Road] is six lanes wide.” Defendant was in the middle lane. But Deputy Partin could not move his vehicle out of defendant’s way; defendant “was moving too quickly. [Deputy Partin] didn’t really know which way [defendant] was going. [The deputy] just stopped, and there was quite a distance ... on the left side. . . . There was a little bit of room [on the other side], but at the speed [defendant] was going [Deputy Partin] thought [defendant] was going to go around [him].” Stunned after the impact, Deputy Partin never fired his gun.

The jury acquitted defendant of Count 2, kidnapping, but found him guilty of Count 1, armed robbery, and Counts 3 and 4, aggravated assault against the pursuing deputies. The trial court subsequently granted defendant’s motion for a directed verdict of acquittal involving Count 3. Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. The State sought to introduce 13 prior instances where defendant participated in an armed robbery. After the hearing mandated by Uniform Superior Court Rule 31.3, the trial court admitted 12 instances of defendant’s prior convictions for armed robbery as probative of defendant’s “identity, modus operandi, bent of mind, and [as] very relevant to the issue of. . . whether or not a weapon was in fact used or not.” These evidentiary rulings are enumerated as error.

(a) Defendant first contends his prior convictions for armed robbery (several based on guilty pleas) were not admitted for a proper purpose. “A rote recitation of any and all permissible purposes will not suffice.” Rodriguez v. State, 211 Ga. App. 256, 258 (4) (a) (439 SE2d 510). Likewise, “[a] vague ‘finding' of an unspecified ‘proper, specific purpose’ is wholly inadequate to apprise the defendant of the . . . grounds upon which such evidence is admissible.” Id. at 259. But in the case sub judice, the trial court did enunciate explicit bases for admitting defendant’s prior convictions. While the trial court found multiple bases, they are neither vague nor a mere rote recitation of any and all permissible purposes.

(b) “Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct. In order for any independent acts to be admissible it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime. While [USCR] 31.3 speaks of similar transactions, the issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case.” (Citations and punctuation omitted.) Cole v. State, 216 Ga. App. 68, 69 (1), 70 (453 SE2d 495).

The trial court in this case correctly concluded that defendant’s history of guilty pleas to armed robbery was substantially relevant to the appropriate limited purpose of proving modus operandi or course of conduct, specifically whether a gun was in fact used in this instance. See Hodnett v. State, 269 Ga. 115, 118 (5) (498 SE2d 737) (unrelated shooting relevant to show course of conduct and bent of mind to carry handgun); Haywood v. State, 256 Ga. 694, 696 (2) (353 SE2d 184) (unrelated shooting relevant to show bent of mind and propensity to use gun); Sport v. State, 253 Ga. 689 (1), 690 (324 SE2d 184) (unrelated shooting demonstrated bent of mind and propensity to use pistol).

(c) The trial court’s reasoning that defendant’s long list of armed robbery convictions is probative of the perpetrator’s identity is in error. “A much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” (Citations and punctuation omitted.) Cole v. State, 216 Ga. App. 68, 69 (1), 70, supra. The State failed to prove that defendant’s repeated guilty pleas to armed robbery offered characteristics so unusual and nearly identical in method as to earmark this offense as the handiwork of any particular person. Robbing a convenience store at gunpoint is not in the nature of a signature so as to be proof of the perpetrator’s identity. Id. But we must test for harm as well as error. In this case, defendant took the stand and admitted the robbery (while denying the threat of a gun). Consequently, the admission of “extrinsic acts” evidence under the erroneous identity theory is clearly harmless in this instance, because it is highly probable the error did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

2. The trial court gave a preliminary instruction, informing the jurors that their consideration of extrinsic acts evidence was limited to whether it proved “identity and [the] state of mind element charged in the indictment.” Defendant objected, contending these instructions exceeded the limited purposes for which the court admitted evidence of defendant’s repeated armed robberies. The trial judge repeated this charge, again enumerating identity and state of mind as the proper limited purposes for which the similar crimes evidence was admitted.

(a) On appeal, defendant first argues the admission of similar transactions evidence without accompanying limiting instructions is harmful as a matter of law, relying on Lunberry v. State, 231 Ga. App. 706 (500 SE2d 625), and Belt v. State, 227 Ga. App. 425 (489 SE2d 157), rev’d, State v. Belt, 269 Ga. 763, 764 (505 SE2d 1). There is no longer any “per se” error involving limiting instructions regarding similar transactions. In State v. Belt, 269 Ga. 763-764, the Supreme Court of Georgia reaffirmed the rule that, when evidence is admitted for one purpose, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admitted, in the absence of a request to so instruct the jury. Defendant requested no clarification in the case sub judice.

(b) True, the limiting instruction as given in this case injected the abstractly correct but factually extraneous notion of state of mind while ignoring the authorized purpose of course of conduct or bent of mind. But this reference to state of mind could not possibly have misled the jury into reaching a guilty verdict by some theory not supported by the evidence. Consequently, the trial court’s limiting instruction given contemporaneously with the admission of similar transactions evidence, while not a model of clarity, was not error requiring a new trial. Hightower v. State, 210 Ga. App. 386, 387 (3), 388 (436 SE2d 28).

3. Evidence that a crack pipe with suspected cocaine residue was found in a fanny pack discovered in the car defendant abandoned was introduced at trial over defendant’s objection that this introduced prejudicial facts not contained in the case on trial. On appeal, defendant contends this amounted to the improper introduction of unnoticed similar crimes evidence, without the necessary pretrial hearing mandated by USCR 31.3. This contention is without merit.

“Evidence discovered in [defendant’s vehicle], implicating him in [an uncharged drug offense], was evidence of the res gestae and as such is expressly excluded from the procedural requirements applicable to separate but similar crimes. [USCR] 31.3 (E); Grace v. State, 262 Ga. 746, 747 (1) (425 SE2d 865). Substantively, the State is entitled to present evidence of the entire res gestae and such evidence is not rendered inadmissible despite the fact that the character of the accused is incidentally implicated. Chambers v. State, 250 Ga. 856, 859 (2) (302 SE2d 86).” Galbreath v. State, 213 Ga. App. 80, 83 (3), 84 (443 SE2d 664).

4. Defendant enumerates the general grounds as to his conviction for armed robbery, arguing the offense requires that an offensive weapon or an item with the appearance of an offensive weapon be used during the theft, and the evidence fails to establish this. We disagree on both the law and the evidence.

“OCGA § 16-8-41 (a) provides that a person commits the offense of armed robbery when, with the intent to commit theft, he takes property of another by use of an offensive weapon, or any réplica, article, or device having the appearance of such weapon. The statute includes concealed offensive weapons provided there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred. The question is whether the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used, regardless of whether the victim actually saw the weapon. In the case at bar, the evidence authorized a finding that [defendant] robbed [Florville] using a replica, article, or device having the appearance of an offensive weapon [as charged in the indictment], regardless of what it was, so as to create a reasonable apprehension on the part of [Florville] that it was [in fact] an offensive weapon.” (Citations and punctuation omitted.) Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280).

Decided February 9, 1999.

Jill L. Anderson, Lee W. Fitzpatrick, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2168.
    MITCHELL et al. v. STATE OF GEORGIA.
   Smith, Judge.

Rodrick Mitchell and Seneka Kinnemore appeal from an order granting forfeiture of certain personal property seized when Mitchell was stopped at a routine roadblock and subsequently arrested and charged with violating the Georgia Controlled Substances Act, OCGA § 16-13-30. The items seized were the 1964 Chevrolet Impala that Mitchell was driving when stopped; a handgun found in the car; and jewelry, two pagers, and $998 in cash found on Mitchell’s person. Mitchell and Kinnemore filed claims and answered the petition, with Kinnemore claiming ownership of the car and Mitchell claiming ownership of the remaining items. After hearing evidence, the trial court entered an order of forfeiture. Mitchell and Kinnemore appeal from this order, raising two enumerations of error.

1. Mitchell and Kinnemore contend that forfeiture of the items seized amounted to an excessive fine within the meaning of the Eighth Amendment to the U. S. Constitution. In Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994), the Supreme Court of Georgia adopted the three-factor analysis proposed in United States v. 6625 Zumirez Drive, 845 FSupp. 725 (C.D. Cal. 1994), as the minimal inquiry that must be made in analyzing a claim under the excessive fines provision of the Eighth Amendment. Thorp, supra at 717-718 (3). These factors are: (1) the inherent gravity of the offense, as compared with the harshness of the penalty; (2) whether the property seized was close enough to the offense to render it “guilty”; and (3) whether the criminal activity involving the property seized was extensive, in terms of time or space. Id.

Application of these factors requires the trial court to make mixed findings of law and fact, which this Court must accept unless they are clearly erroneous. Evans v. State of Ga., 217 Ga. App. 646, 647 (458 SE2d 859) (1995). Although both counsel brought this issue to the trial court’s attention, it does not appear that the trial court made findings regarding, or even specifically mentioned, these criteria. We must therefore remand this case for further proceedings in the trial court. Since a hearing was conducted, no further evidentiary hearing is necessary, unless the trial court deems it so. The trial court’s order is vacated, and the court is directed to enter a new order including findings of fact and conclusions of law on the factors required by Thorp. Either party shall be entitled to appeal the trial court’s new order within 30 days of its entry. See Art. VI, Sec. I, Par. IV, Ga. Const. of 1983. Evans, supra at 647.

2. Kinnemore claimed that she owned the car and was entitled to its return as an “innocent owner,” under OCGA § 16-13-49 (e). The trial court found that notwithstanding Kinnemore’s claim, the true owner of the car was Mitchell. On appeal, Mitchell and Kinnemore argue that the evidence does not support this finding by the trial court. We do not agree.

OCGA § 16-13-49 (e) sets forth what an owner or interest holder must establish in order to prevent forfeiture as an “innocent owner.” The owner or interest holder must show that he or she is not accountable for the conduct giving rise to the forfeiture and did not know or have reason to know of that conduct; that he or she did not stand to profit from that conduct, other than by having an interest in “an arm’s length commercial transaction”; and did not hold the property jointly with the person whose conduct gave rise to the forfeiture (if the property was a “conveyance for transportation”). In addition, the owner or interest holder must show that he or she does not now hold the property for the benefit of such person and, if the interest was acquired from such person, it was as a bona fide purchaser for value without knowingly taking part in illegal conduct, and the interest was acquired either before the completion of the conduct giving rise to the forfeiture or after its completion and as a bona fide purchaser for value without knowingly taking part in an illegal transaction, before the notice of seizure and without cause to believe it would become the subject of a forfeiture. OCGA § 16-13-49 (e) (1) through (5).

In a condemnation action, once the State has presented a prima facie case for forfeiture, the claimant has the burden of establishing by a preponderance of the evidence that she is an innocent owner. State of Ga. v. Ledford, 217 Ga. App. 272 (456 SE2d 757) (1995). OCGA § 16-13-49 (o) (5) and (p) (6) provide that forfeiture actions are tried by the court without the intervention of a jury. On appeal, the trial court’s findings of fact will not be reversed unless clearly erroneous, and due regard must be given to the trial court’s opportunity to judge the credibility of the witnesses who appeared before it. This means that we will not disturb a trial court’s findings if any evidence exists to support them. Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

The trial court concluded that “the car actually belongs to Roderick [sic] Mitchell, and that Seneka Kinnemore is a strawman whom the defendant seeks to use in order to avoid the loss of his car as a result of its use in the transportation of such substances as marijuana and cocaine.” This finding is supported by evidence.

Kinnemore testified that she knew Mitchell smoked marijuana. She testified, in fact, that she knew he smoked it while driving because he had done so in her presence. She was also aware that he previously had been arrested for possessing cocaine. This evidence undermines Kinnemore’s claim of innocence, since she knew that the conduct giving rise to the forfeiture was likely to occur.

Moreover, a narcotics investigator for the Douglas County Sheriff’s Department testified that he ran the tag on the car Mitchell was driving, and it came back registered to a third person. The investigator testified that when he informed Mitchell, Mitchell responded that he had bought it from that third person, for $1,800, but “changed his story and said that it was his girlfriend’s car” when the investigator told Mitchell he planned to seize it.

Kinnemore testified that she was Mitchell’s girlfriend, and that she bought the car from a different third party in Rockmart and immediately registered it. She identified a handwritten bill of sale. As the trial court noted in its order, the bill of sale includes a line drawn in for the name of the purchaser and the blank is filled in with what appears to be Kinnemore’s signature. The remainder of the bill of sale is in a different handwriting from that used by the seller on the seller’s signature line.

The court noted that during the entirety of the hearing, Kinnemore remained outside the courtroom other than when she was testifying, and that its conclusion regarding the ownership of the car was based upon Kinnemore’s demeanor and on Mitchell’s original answer to law enforcement officers regarding the owner of the car. Because we find that this evidence supports the trial court’s finding that Mitchell was the true owner of the car, we cannot disturb that finding.

Decided February 9, 1999.

J. Alfred Johnson, Shondra J. Pruitt, for appellants.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Johnson, C. J., and Barnes, J., concur.

       The record reflects only that Mitchell was charged with violating the Controlled Substances Act. But both appellants and the State agree that Mitchell was charged with possessing less than one ounce of marijuana, possession of cocaine with intent to distribute, and possession of a firearm during commission of a crime.

       Mitchell, Kinnemore, and their attorney failed to appear at the originally scheduled hearing set on the petition. Their attorney subsequently moved to set aside the forfeiture order entered at that time, arguing that an oversight on his part caused the failure to appear. After a hearing, the trial court granted the motion to set aside. Having heard the State’s witnesses at the previous hearing, the trial court ordered the hearing to resume with the defense witnesses.