author: Barnes, Judge. Ruffin, Judge, Pope, Presiding Judge, Eldridge, Judge,

text:
    A00A1912.
    BERRY v. THE STATE.
    (547 SE2d 664)
   Barnes, Judge.

Pursuant to the grant of an interlocutory appeal, Henry Lorenzo Berry appeals the superior court’s denial of his motion to suppress evidence seized from his car after a traffic stop. He contends the trial court erred by holding that the search did not violate Art. I, Sec. I, Par. XIII of the Georgia Constitution (1983) or OCGA § 17-5-1.

The entire incident was videotaped by a camera in the police car, and the video was shown to the court. The video and the officer’s testimony show that Berry was traveling alone at about 10:00 a.m. when he was stopped on 1-20 by a City of Conyers police officer for driving a car with a dealer’s drive-out license tag. The officer was a narcotics officer who apparently was on routine patrol with his drug dog and his partner. The video shows that the two police officers approached the car on both sides and looked in the car.

Although some comments are inaudible, the following is a transcript of the stop as shown on the videotape:

[10:05:23 a.m.]
OFFICER: Hey, how are you doing? May I see your driver’s license and insurance please? Mr. Berry, you step out here and I’ll explain why I stopped you. I don’t like standing with my back to that traffic. The reason I stopped you is that you don’t have a tag on it. How long have you had the car?
BERRY: Just rented it and went to see my son in Atlanta. OFFICER: You rented it.
BERRY: Yes sir.
OFFICER: Where you headed to?
BERRY: I’m going to [inaudible] — Did I do something wrong or something?
OFFICER: It’s because you don’t have a tag. A lot of times we get a lot of stolen vehicles this way. I mean it’s nothing for somebody to come up and take this one off, go to a car lot and put it on there and take off with it.
OFFICER: Where you coming from?
BERRY: Atlanta. See my son.
OFFICER: See your son.
OFFICER: All that rain didn’t scare you off, did it?
BERRY: No, it didn’t.
OFFICER: How long did you stay?
BERRY: Not that long, I didn’t stay long.
OFFICER: A day? Two weeks? A week?
BERRY: Not long.
OFFICER: Not long?
BERRY: Not long.
[10:06:50 a.m. — Officer calls in Berry’s driver’s license information: black male from South Carolina 001958331.]
OFFICER: You have a regular car of your own?
BERRY: Uh, yes sir.
OFFICER: What is it?
BERRY: Just a pickup.
OFFICER: You got a pickup —. It wasn’t in good shape to drive down here?
BERRY: [Nodded head.]
OFFICER: I’m going to run a quick check on your license to make sure everything is all right.
OFFICER: Wherebouts does your son live at in Atlanta?
[10:07:38 a.m.]
BERRY: Uh, uh, Decatur.
[10:07:43 a.m.]
OFFICER: Decatur.
OFFICER: Everything all right; he wasn’t sick now was he? BERRY: Well, I always gotta check on him.
OFFICER: How old is he?
BERRY: 22.
OFFICER: 22.
OFFICER: He going to school down there?
BERRY: No, he’s working.
OFFICER: Working. [Officer looks at paperwork.]
OFFICER: They only charged you 80 bucks to rent it? BERRY: $75, that’s with tax.
OFFICER: That’s the tax was it?
BERRY: Yes, officer.
OFFICER: That ain’t bad.
OFFICER: When did you come down?
BERRY: Early this morning.
OFFICER: Early this morning?
OFFICER: I’m just trying to kill time while we are waiting on the [inaudible].
OFFICER: Is he a good boy? Does he stay in trouble a lot or —?
BERRY: Well, that’s why I got to check on him.
OFFICER: You gotta check on him. He never been in —. BERRY: He don’t have a job right now. You got any children, got any children, you know how it is.
OFFICER: I gotta two and a half month old.
BERRY: You ain’t getting there yet.
OFFICER: I ain’t there yet.
BERRY: You ain’t there yet.
OFFICER: All right, you don’t have any guns or knives or weapons or anything? You don’t mind if I pat you down right quick for my safety? You don’t have to put your hands up. You’re fine.
[The officer pats down Berry. At 10:09:22 a.m., the officer walks to the front of the car and apparently copies down the vehicle identification number. While he is doing this, the other officer comes from the front of the car and stands by Berry. After copying the VIN, the first officer walks around the car looking in the windows. The officer calls in the VIN at 10:09:57 a.m. and resumes questioning.]
OFFICER: Mr. Henry, how often you travel back and forth?
BERRY: Not much. Whenever my son in trouble.
OFFICER: Whenever he’s in trouble.
BERRY: Yeah. I have a sister that lives in [inaudible], but this time I came to see my son.
OFFICER: You came to see your son.
OFFICER: Um, I-20’s a big interstate, runs right here through the City of Conyers. We got a big problem with people with guns, drugs, narcotics, dead bodies, and stuff like that. You don’t have anything illegal in your vehicle?
BERRY: No.
OFFICER: Would you mind if I take a quick search of your vehicle?
BERRY: No, not my vehicle.
OFFICER: Well, I mean it’s rented to you. So, I mean, that’s why I’m asking you.
BERRY: Not really no. I haven’t did anything, you know?
OFFICER: You saying I can or can’t?
BERRY: Well, I don’t, you know, it’s up to you, but I said no. I say no.
OFFICER: OK, you say no, OK. That’s fine. That’s your right to say no, OK?
BERRY: OK.
[10:11:10 a.m.]
OFFICER: All right, Mr. Henry, Mr. Berry, what I’m going to do is, I’m going to ask you to step back here with this officer. I have a narcotics-trained canine in my car. I’m going to walk him around your car real quick and if he doesn’t hit, we’re going to send you on your way. OK.
[10:11:20 a.m.]

After the dog alerted at several places on the car, the officer searched the car and opened a plastic bag he had seen earlier in the passenger compartment. It contained about eight pounds of marijuana. Berry was arrested and charged with violation of the Georgia Controlled Substances Act: possession of marijuana with intent to distribute.

Although the officer later testified that the rental contract appeared to have been altered, the videotape does not show that he ever questioned Berry about it. At some point, however, the officer confirmed that the contract was valid (the rental agency had made the alterations) and the car was not stolen. The officer testified that he saw no contraband in plain view, but did see a large black garbage bag behind the passenger’s seat. He did not smell marijuana.

Subsequently, Berry moved to suppress the marijuana found in the rented car, the trial court denied the motion, and Berry sought and obtained authority to bring this interlocutory appeal from that order.

The trial court’s order states:

Henry Lorenzo Berry was stopped while driving on Interstate 20 by a City of Conyers Police Officer, Ken Morgan. Officer Morgan operated the canine (K-9) unit. The defendant was stopped for driving a car with a dealer drive out paper tag. After the stop, Officer Morgan requested his driver’s license and insurance, including information on the car. Defendant produced his license and the rental contract. It should be noted that the rental contract on the car appeared to have been altered by the use of a photocopy machine. While the Officer was running a check on the items, he engaged the Defendant in a conversation. It did not appear to be a traditional rental contract form. The discussion between the officer and Defendant was amiable; however, the Defendant’s answers were contradictory. The entire stop was videotaped and played for the Court during the hearing on the Defendant’s Motion to Suppress. While the license and VIN number of the vehicle were being confirmed, the Officer requested to search the Defendant’s vehicle. The Defendant refused to give consent. After this refusal, the Officer used his dog to conduct a “free air search” around the vehicle. The dog alerted and a search ensued whereby contraband was found in the back floorboard of the Defendant’s rental vehicle. The officer lawfully stopped the vehicle driven by the Defendant because the vehicle did not have a state-issued tag. While the inquiry of the Defendant’s itinerary was ongoing, the Officer noticed the nervousness of the Defendant. According to the Officer, 1-20 is increasingly becoming a transportation lane for illegal drugs and narcotics. This case is distinguishable from Smith v. State, 216 Ga. App. 453 [ (454 SE2d 635)] (1995) because the Officer did not conduct the “free air search” based solely on a hunch. Furthermore, the inquiry did not relate to a drug inquiry but was simply about the Defendant’s travel plans. The questions were not unconstitutionally intrusive when balanced against the danger of drug running on the interstate. An officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told motorists they are free to go. Simmons v. State, 223 Ga. App. 781, 782 [(479 SE2d 123)] (1996). The traffic stop was ongoing in this matter and the Defendant had not been given permission to leave. The investigation was appropriate which gave rise to meet the reasonable suspicion standard. Jorgensen v. State, 207 Ga. App. 545, 546 [(428 SE2d 440)] (1993). Therefore, the Defendant’s Motion to Suppress is hereby denied.

1. In reviewing the trial court’s decision “we must determine whether the officer’s action in pulling [Berry] over was justified at its inception, and whether the detention was reasonably related in scope to the circumstances which justified the interference in the first place.” (Citation and punctuation omitted.) Smith v. State, supra, 216 Ga. App. at 454.

2. Our Supreme Court has established three guiding principles to guide us in reviewing a trial court’s order on a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations and punctuation omitted; emphasis in original.) Tate v. State, 264 Ga. 53, 54 (440 SE2d 646) (1994). In this instance, Berry did not testify, and no other witness contradicted the testimony of the officer. Yet, conflicts in the evidence exist because the officer’s characterizations of the events are not always consistent with the events as shown on the videotape. The trial court, however, either did not note these inconsistencies or elected not to address them. To the extent the trial court’s findings of fact rely upon the officer’s testimony which is inconsistent with the objective events recorded on the videotape, we find them clearly erroneous. See Lyons v. State, 244 Ga. App. 658 (535 SE2d 841) (2000) (facts discernible in videotape not in dispute).

A significant discrepancy exists between the officer’s testimony that he had not completed his investigation of the drive-out tag when he conducted the search with his dog and his statement on the videotape that Berry would be free to go after the dog checked his car.

3. Our initial consideration is whether the traffic stop was authorized. The evidence shows, and the trial court found, that Berry was stopped because he had a drive-out tag on the car. The evidence also shows that the stop was not connected with enforcement of the vehicle registration laws. Instead, the officer testified that he stopped Berry to investigate whether the car was stolen merely because he did not have a state-issued tag on the car. The officer said, “a lot of times we get a lot of stolen vehicles this way. It’s nothing for somebody to come up and take this one off, go to a car lot and put it on there and take off with it.”

This is an impermissible basis for a traffic stop. If the officer’s rationale for this stop were sufficient to authorize an investigative traffic stop, a stop of any or all motor vehicles on an interstate highway would be authorized because they are often used to transport drugs. Our law is more restrictive than that. Instead, the critical issue to the validity of a traffic stop is whether the officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Cit.]” (Punctuation omitted.) Postell v. State of Ga., 264 Ga. 249, 250 (443 SE2d 628) (1994). “What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citation and punctuation omitted.) State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994).

Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). See also United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). 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.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). “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.” Terry v. Ohio, supra at 22, n. 18.

(Emphasis supplied.) Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

Here, the officer had no “particularized and objective basis for suspecting [Berry] of criminal activity.” Instead, the officer had a mere inclination or hunch that any car with a drive-out tag might be stolen. Under these circumstances, the officer was not authorized to pull over Berry. Therefore, the trial court erred by denying his motion to suppress on this basis.

To the extent that Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989), can be read to authorize a traffic stop because of the possibility that a drive-out tag might be implicated in car theft, it is disapproved and overruled.

4. In addition, even if the initial stop had been authorized, we find that Berry’s further detention to conduct the dog search was not reasonable. Smith v. State, supra, 216 Ga. App. at 454. At the hearing, the officer testified that the reasons for the search were: Berry’s nervousness, his uncertainty about whether his son was working or not, the fact that he was driving a rental car, the rental contract, Berry’s looking down the interstate before answering some questions, Berry’s failure to remember that his son lived in Decatur, the plastic garbage bag in the backseat, and the long trip from South Carolina only to stay a few hours.

From the evidence discussed above, we are satisfied that this case is controlled by our decisions in Migliore v. State of Ga., 240 Ga. App. 783 (525 SE2d 166) (1999); State v. Blair, 239 Ga. App. 340 (521 SE2d 380) (1999); Simmons v. State, supra, 223 Ga. App. 781; and Smith v. State, supra, 216 Ga. App. 453. These cases found searches unreasonable under almost identical circumstances.

The videotape plainly shows that when the officer decided to conduct the search with his dog, he had abandoned his investigation of Berry’s drive-out tag, and he informed Berry that he could leave after the dog walked around the car. Since the dog search was in no way connected to any problem with the license tag, the officer must have had a reasonable suspicion that Berry was transporting drugs. Simmons v. State, supra, 223 Ga. App. at 782. We find that the trial court’s determination that the officer had such reasonable suspicion is also clearly erroneous.

None of the reasons the officer relied on showed that Berry might be in possession of drugs. Further, even if Berry were nervous, as if most citizens would not be when stopped by the police, “[r]easonable suspicion to detain and investigate for illicit drug activity does not arise from nervousness. . . .” Migliore v. State of Ga., 240 Ga. App. at 786.

An officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told [the] motorists they are free to go. To meet the reasonable suspicion standard, an officer’s investigation during
a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.

(Citations and punctuation omitted.) Parker v. State, 233 Ga. App. 616, 617-618 (1) (504 SE2d 774) (1998).

In the absence of specific articulable facts supporting a reasonable suspicion of criminal conduct, we must conclude, contrary to the trial court’s holding, that the officer’s dog search of the automobile was based on merely his “hunch” that drugs might be found in the garbage bag he saw in the car. State v. Blair, supra, 239 Ga. App. at 342.

Because the trial court specifically noted that the officer’s “inquiry did not relate to a drug inquiry but was simply about [Berry’s] travel plans,” we are obliged to point out that the questions asked by the officer are part and parcel of the questioning routinely done by officers in the course of these traffic stops. Without such questioning, which is rarely if ever directed toward the reason for the initial stop, the officers would have no basis for later testifying about inconsistent or evasive responses, discrepancies in the travel plans, variations between the responses by the driver and passengers, or unwarranted nervousness. See, e.g., State v. Blair, supra, 239 Ga. App. at 340 (conflicting explanations and nervousness); State v. Hall, 235 Ga. App. 412, 415 (509 SE2d 701) (1998) (inconsistent responses); Roundtree v. State, 213 Ga. App. 793 (446 SE2d 204) (1994) (inconsistencies regarding the purpose and duration of trip and increasing nervousness). Indeed, it is the rare traffic stop drug case in which responses by the driver or passenger to an officer’s seemingly innocuous questions are not relied upon by the officer to later justify a search of the vehicle.

Because the officer illegally detained Berry so that he could conduct a search with his dog, this case is distinguished from Pitts v. State, 221 Ga. App. 309 (471 SE2d 270) (1996); State of Ga. v. Montford, 217 Ga. App. 339 (457 SE2d 229) (1995); Roundtree v. State, supra, 213 Ga. App. 793, and other cases that found free air searches to be authorized.

If during an investigatory stop the officer, without an articulable suspicion, proceeds to ask questions unrelated to the reason for the stop, the officer goes beyond the permissible scope of the investigation, and the further detention of the car driver exceeds that permitted by Terry v. Ohio and its progeny. To give deterrent effect to the exclusionary rule, a court must suppress evidence obtained through an excessive detention and investigation.

(Footnotes omitted.) Almond v. State, 242 Ga. App. 650, 652 (1) (530 SE2d 750) (2000).

Accordingly, the judgment of the trial court must be reversed and the case remanded to the trial court with direction to grant Berry’s motion to suppress.

Judgment reversed with direction.

Blackburn, C. J., concurs. Ruffin, Miller and Phipps, JJ., concur and concur specially. Pope, P. J., Andrews, P. J., Johnson, P. J., Smith, P. J., and Ellington, J., concur in Division 3 and concur specially. Eldridge and Mikell, JJ., dissent.

Ruffin, Judge,

concurring specially.

I concur with the majority opinion. I write separately to elaborate on my views of (1) why Watson v. State should be revisited and overruled, and (2) why the dissent’s analysis of the officer’s investigation is flawed. The inquiry is, as defined by the United States Supreme Court in Terry v. Ohio, “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”

1. Were the officers’ actions in this case and in Watson justified at their inception?

The relevant facts in Watson are identical to the facts in this case. There, as here, an officer conducted a brief investigative stop of an automobile after noticing that the vehicle displayed drive-out tags. In this case, as in Watson, the officer justified the stop based upon his experience that many cars with drive-out tags are stolen. In Watson, we found that this constituted an “objective manifestation that the persons stopped may be engaged in criminal activity” and therefore concluded that the stop was authorized.

Both the majority and dissent in this case begin their inquiry on common ground. It is undisputed that such stops implicate the Fourth Amendment proscription against unreasonable searches and seizures. We also agree that because the detention was not supported by probable cause, the stop must have been “justified by specific and articulable facts which, taken together with rational inferenees from those facts, reasonably warrant [the] intrusion.”

The facts here, and in Watson, did not warrant such intrusion. The videotape in this case shows that it was the mere presence of the drive-out tag on Berry’s car, coupled with the officer’s experience that “a lot of times” these tags appear on stolen vehicles, that precipitated the stop. Thus, the officer decided to “run a quick check” on Berry’s license “to make sure everything [was] alright,” and he called in the vehicle identification number (VTN) on the car.

There is no evidence of record which indicates whether the officer in this case and his department have a policy of stopping all cars displaying temporary tags or whether they merely spot check such cars to determine whether they are stolen. Both scenarios are troubling. Assuming the officer stops all such cars, I question how many cars he must stop to find one stolen car. Aside from the officer’s statement that temporary tags appear on stolen cars “a lot of times,” there is no evidence indicating the rate of incidence. However, common sense dictates that the percentage of stolen cars on the road displaying temporary tags is very small and that the number of vehicles displaying temporary tags which will be stopped in order to find one stolen vehicle will be, in comparison, very large. Under these circumstances, the contribution to crime prevention will be marginal at best.

The second scenario presented above, that the officer and his department merely spot check cars displaying temporary tags to determine whether they are stolen, is equally disturbing. There is nothing indicating how the officer would decide which cars to stop, and the United States Supreme Court has counseled against the “grave danger” and “evil” presented by “[t]his kind of standardless and unconstrained discretion.”

Although I do not dispute that states have a legitimate interest in preventing car theft, that alone is insufficient to justify the intrusion at issue. “[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” The hypothesis at work under both scenarios presented above is that “stopping apparently [compliant] drivers is necessary only because the danger presented by some drivers is not observable at the time of the stop.” That hypothesis did not survive the United States Supreme Court’s balancing test in Delaware v. Prouse, and I can discern no reason why it should survive here. Indeed, this Court has previously held that such stop is impermissible, and my research of cases from several jurisdictions did not reveal a single court which upheld a stop under the circumstances.

For these reasons, I agree with the majority that Watson should be overruled and agree with Presiding Judge Pope that Burtts v. State should be overruled. I disagree with the dissent that the officer was justified in stopping Berry. Probable cause is not satisfied by a policeman’s proclivity to pry.

2. Were the officers’ actions in this case reasonably related in scope to the circumstances which justified the interference in the first place? The majority answers with a nonnegotiable “no.” The dissent, with equal passion responds with a dubious “yes.” For reasons which follow, I cannot enter that door of doubt with the dissent.

In light of my conclusion in Division 1 that the stop was not justified at its inception, I would usually dispense with considering whether the scope of the officers’ investigation was impermissibly broad. However, because I believe the dissent has misconstrued Terry and its progeny, and because it recommends overruling Smith v. State, I believe it is necessary to comment on these matters.

In Terry, the Court addressed the constitutionality of an investigative stop and recognized that “the scope of the particular intrusion, in light of all the exigencies of the case, [is] a central element in the analysis of reasonableness.” Indeed, the Court advised that “[t]he scope of the search must be ‘strictly tied to and justified by the circumstances which rendered its initiation permissible.” Thus, the Court framed the inquiry as “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”

Fifteen years after its decision in Terry, the Court, with no less fervor, continued to circumscribe the scope of warrantless searches in Florida v. Royer In Royer, the Court reiterated that “the search must be limited in scope to that which is justified by the particular purposes served by the exception.” In other words, the Court explained, “[t]he scope of the detention must be carefully tailored to its underlying justification.” Although the “scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case,” the Court in Royer made it clear that

an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.

Based on these principles, this Court found the stop in Smith v. State was impermissibly broad. In Smith, the officer stopped the defendant, Smith, to investigate why his car was weaving. Upon being satisfied that Smith was not driving under the influence of alcohol, the officer probed into whether Smith possessed any narcotics. We held that “[a]t the point the officer initiated this later probe, he went beyond the permissible scope of the investigation and his further detention of Smith went beyond that permitted by Terry and its progeny.” The reasons underlying our decision are clearly supported by Terry and its progeny. The scope of the officer’s detention was not carefully tailored to investigate why Smith was weaving. The investigative methods used, interrogating Smith about whether he possessed drugs, were totally unrelated to his driving and could not confirm or dispel the officer’s suspicion that Smith was driving under the influence of alcohol. Likewise, the period of detention was unnecessarily long because the officer delved into these other matters.

The circumstances in the instant case are even more compelling. The officer had no reason to stop Berry in the first place. Moreover, the officer’s investigative method was not the “least intrusive means reasonably available to verify or dispel [his] suspicion” that the car was stolen, and Berry’s detention lasted “longer than [was] necessary” to determine whether the car was stolen.

The video reveals that the officer focused his investigation on virtually everything except whether the car was stolen. The officer took Berry’s driver’s license at the beginning of the stop and proceeded to ask him questions about where he came from, the weather, and Berry’s son. The officer displayed particular interest in Berry’s son, investigating where he lived, whether he was sick, his age, whether he was in school or working, and whether he had ever been in any trouble. It is not until after the officer interrogated Berry on all these unrelated personal matters, that the officer even bothered to copy the VTN on the suspected stolen vehicle and call it in, a task that took only 35 seconds. And, after completing this brief task directed toward determining whether the car was stolen, the officer resumed his totally unrelated interrogation into Berry’s private life, now focusing his investigative efforts on searching Berry’s personal belongings. The invective of the dissent notwithstanding, we judges should be able to distinguish between the particular and the peculiar.

If the officer had a reasonable, articulable suspicion that the car was stolen, his investigative methods should have been tailored to verify or dispel his suspicion. Interrogation about Berry’s family matters and travel itinerary, even if seemingly benign to the casual observer, constituted a substantial and unnecessary intrusion into Berry’s personal security. Berry was not free to leave, and there is nothing indicating that his participation in this interrogation was consensual. Had the officer “diligently pursue [d] [his] investigation” into whether the car was stolen, and limited his investigation into that matter, the detention would have been brief, and Berry would have been spared the unnecessary intrusion into his personal affairs. Terry is instructive:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

The officer had no such authority in this case. An unlawful arrest is the contraband of liberty. To curtail our liberty is to steal our liberty, and to steal our liberty is to steal our future as well as our freedom. Accordingly, I concur with the majority.

I am authorized to state that Judge Miller and Judge Phipps join in this special concurrence.

Pope, Presiding Judge,

concurring specially.

I concur in Division 3 of the majority opinion, that the initial traffic stop was not valid, but would limit the opinion to that topic because it controls the outcome of the case.

I disagree with the dissent’s statement that no question regarding the propriety of the initial stop is before us. Berry moved to suppress, in part, on the grounds that “[t]he police had no articulable suspicion for the stop.” The trial court ruled on this issue stating that the stop was valid because Berry “did not have a state-issued tag.” The principle underlying waiver of an argument is that the movant may have waived an argument if he has not given the court an opportunity to rule on the issue. See Morgan v. Kiff, 230 Ga. 277 (196 SE2d 445) (1973), overruled on separate grounds, Jacobs v. Hopper, 238 Ga. 461, 463 (233 SE2d 169) (1977). Because the trial court did in fact rule on the issue, it clearly had the opportunity. Berry enumerated as error the trial court’s denial of the motion to suppress. And the validity of the initial stop is part of the analysis of whether an officer’s subsequent questioning and detention are justified. United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605) (1985); Smith v. State, 216 Ga. App. 453, 454 (454 SE2d 635) (1995).

I fully concur in the majority opinion’s conclusion that the initial stop was not valid under the Fourth Amendment. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A traffic stop is reasonable where the police have “probable cause to believe that a traffic violation has occurred,” Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996), or reasonable suspicion that the car’s occupants are involved in criminal activity. United States v. Hensley, 469 U. S. 221 (105 SC 675, 83 LE2d 604) (1985). Here, the arresting officer had neither.

Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), is instructive. There, the Supreme Court declared unconstitutional random stops of individual cars for the purposes of checking the driver’s license and the car’s registration, holding:

except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

Id. at 663. The same reasoning applies here. A South Carolina dealer tag, which is not required to show the expiration date, standing alone, does not provide an articulable suspicion that the tag has expired. State v. Butler, 343 S.C. 198, 201-206 (539 SE2d 414, 416-418) (App. 2000). And, there is no testimony in the record in this case about the tag to suggest that it was not validly and properly displayed or that it looked old, torn, or faded.

Relying on Prouse, the South Carolina Court of Appeals held that the Fourth Amendment prohibited South Carolina officers from stopping cars solely on the basis of having a South Carolina dealer tag. Id. As stated in Butler: “We cannot sanction the random stop of any and every car bearing a temporary tag, leaving in the hands of law enforcement officers the freedom to detain whomever they desire without having to justify why they chose to stop one motorist over another.” Butler, 343 S.C. at 204. Two other states have reached similar results. See State v. Childs, 242 Neb. 426 (495 NW2d 475) (1993); State v. Chatton, 11 Ohio St.3d 59 (463 NE2d 1237) (1984).

Similarly, the officer’s knowledge that dealer tags are sometimes used by car thieves on stolen cars is not reasonable suspicion that Berry was driving a stolen car. Thieves sometimes steal cars with regular license plates on them, but no one would suggest it would be permissible to allow the police to stop every car with a legitimate license plate in order to check to see whether the car may have been stolen.

However, having determined that the stop was invalid, we need go no further. If the initial stop is invalid, none of the fruits of the stop are admissible. Accord State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994). We need not reach the question of whether the continued detention and investigation were warranted.

Lastly, I would note that in addition to Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989), it is also necessary to overrule Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994), to the extent that it authorizes stops on this basis alone.

I am authorized to state that Presiding Judge Andrews, Presiding Judge Johnson, Presiding Judge Smith, and Judge Ellington join in this special concurrence.

Eldridge, Judge,

dissenting.

The uncontested initial stop was valid; the valid stop was ongoing and was not prolonged in order to conduct the free-air K-9 search; and the free-air K-9 search did not violate the Fourth Amendment. So, I respectfully dissent.

1. The propriety of the initial stop based on an invalid license tag is not before us, because the issue went undisputed in the court below. The trial court’s finding that “the officer lawfully stopped the vehicle driven by the defendant because the vehicle did not have a state-issued tag” provides nothing for this Court to review when no one ever claimed below that such stop was not lawful. There is no issue when nobody argues one. Thus, the State did not get to put forward any grounds to uphold a stop based on the failure to display a valid tag, and the trial court did not get to rule on such issue. To base a reversal on a trial court’s specific ruling that was neither challenged below nor enumerated as error before this Court is, in my view, to violate a basic principle of appellate review. I continue to maintain that resolution of our cases based upon issues that were not in dispute below and thus not addressed by the State or the trial court is fundamentally unfair. While we have under certain circumstances reached issues unaddressed by either party in order to affirm a judgment as right for any reason, it does not follow that undisputed issues should be reached in order to find a trial court wrong for any reason.

(a) The trial court found that the uncontested initial stop was valid. As such finding is supported by the facts and the law, it is entitled to our deference.

The officer in this case testified that he stopped Berry’s car because “[t]he vehicle did not have a valid tag on it.” The officer testified that he could not determine from the face of the South Carolina drive-out tag whether it had expired or not:

[Defense Counsel:] Drive-out tags are valid in Georgia, correct?
[Officer:] Up to a certain point.
[Defense Counsel:] And at that time you didn’t know whether he was within that period of time or not?
[Officer:] Exactly.

The videotape supports this testimony, and it is undisputed the South Carolina paper drive-out tag did not display any dates. Thus, this is a proper basis for a stop in Georgia because here we have a comprehensive statutory scheme governing the registration of vehicles, making it a misdemeanor to operate a newly acquired vehicle without a valid license plate, and providing specific statutory authority for enforcement of these laws.

OCGA § 40-2-20 (a) (l) states that every person must register and obtain a license plate for a new or used vehicle within 30 days of its purchase, and “[a]ny person who fails to register a new or used motor vehicle within 30 days of its purchase as required in subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding $100.” And OCGA § 40-2-8 (b) (2) (A) states that

[i]t shall be a misdemeanor to operate any vehicle required to be registered in the State of Georgia without a valid numbered license plate properly validated[;] provided, [however], that the purchaser of a new vehicle or a used vehicle may operate such vehicle on the public highways and streets of this state without a current valid license plate during the period within which the purchaser is required ... to register such vehicle.

(Emphasis supplied.)

In order to enforce such laws, our statutory scheme specifically provides that the operation of a newly acquired vehicle not bearing a valid Georgia plate is a misdemeanor, and the operator must prove upon request that the vehicle falls within the 30-day registration period, in which case the operator is exempt from the penalties for such misdemeanor:

The purchaser and operator of a vehicle shall not be subject to the penalties set forth in this Code section during the period allowed for the registration. If the owner of such vehicle presents evidence that such owner has properly applied for the registration of such vehicle, but that the license plate or revalidation decal has not been delivered to such owner, then the owner shall not be subject to the above penalties.

Thus, to enforce our registration laws, this Code section gives an officer the specific authority to check whether a paper temporary tag without an expiration date — or a vehicle driven with no tag at all — is in compliance with our laws, and it puts the burden on the driver of such newly acquired vehicle to “present evidence” of compliance in order to avoid the penalty.

In this case, it was impossible for the officer to know if Berry’s vehicle was in compliance with OCGA §§ 40-2-20 and 40-2-8 without effectuating a stop. The South Carolina paper temporary tag bore no markings so as to show compliance with registration laws. The officer had specific statutory authority to inquire and ask Berry to demonstrate compliance with registration laws. Clearly, it cannot be argued that the fact the tag was out-of-state somehow exempted it from Georgia law. If that was the case, the convenient attachment to any vehicle of an out-of-state drive-out tag could frustrate enforcement of OCGA §§ 40-2-20 and 40-2-8.

Reliance on State v. Butler is misplaced because South Carolina (as well as the two other states whose cases are cited by the special concurrence) does not have Georgia’s statutory scheme which specifically permits an officer to inquire into the validity of temporary tags and to ask an operator to “present evidence” that the operator has properly applied for a license plate.

Simply as a matter of common sense, the Georgia General Assembly would not have enacted our detailed laws, with (1) criminal penalties attached for failure to comply, and (2) the provision that upon inquiry the operator of a newly acquired vehicle must present evidence of compliance, if that body had not intended to have the laws enforced.

It must be recognized that whether the above law is applied uniformly or not is not before us. Likewise, the constitutionality of this statutory scheme is not before us. What is before us is the fact that the statute authorizes the steps that occurred in the instant case. Here, the trial court found that the initial stop was proper because Berry did not have a valid license tag. Berry’s South Carolina temporary dealer’s drive-out paper tag did not display any markings to demonstrate it was a “valid tag” in compliance with Georgia law, and the officer had specific statutory authority to ask the operator to “present evidence” that such newly acquired vehicle was in compliance with Georgia law. Thus, the initial stop was proper, and reversal on this ground is not warranted.

(b) State v. Butler and the two states whose cases have been cited by the special concurrence have completely different statutory provisions which do not provide specific statutory authority for an officer’s enforcement of state registration laws. Thus, these foreign cases have no application to the instant case and provide no basis for overruling our prior decision in Burtts v. State, as urged by the special concurrence.

(c) Likewise, Watson v. State has no application to this case and should not be overruled herein, as urged by the majority. Berry’s car was not stopped because drive-out tags are often used to conceal stolen vehicles. The officer developed such suspicions after the proper stop, when he saw that Berry’s rental contract and the drive-out tag were issued by different companies. The instant case provides the wrong venue to overrule Watson, and Watson provides the wrong vehicle to reverse the instant case.

2. The trial court found that the valid stop was ongoing during the free-air K-9 search and the valid stop was not prolonged in order to conduct the search. Such finding, supported by evidence, should be upheld.

Georgia State Patrol Officer Morgan testified that in order to determine if the paper tag was valid, he checked Berry’s rental contract. He called in the vehicle identification number (VIN) on Berry’s car when the rental contract stated that the vehicle was from “Robert’s Rental,” but the paper drive-out tag stated that the vehicle was from “Hartsog’s Rental.” Such conflict, coupled with the officer’s knowledge that drive-out tags are commonly used to conceal auto theft, provided reasonable articulable suspicion to briefly detain Berry for a VIN check of his rented vehicle.

Thereafter, while the officer and Berry were waiting for information on the VIN check, the on-the-scene K-9 performed the free air search of the car. Berry did not testify or offer any evidence to contradict this fact.

Contrary to the cases cited by the majority wherein the traffic stop investigation at issue had clearly been completed and the defendant was unlawfully detained further, the traffic investigation in this case was clearly ongoing; only two minutes had elapsed between the call-in of the rental car’s VIN at 10:10 a.m. and the free air search by the drug dog at 10:12 a.m.; and the free air search did not prolong the lawful detention.

The majority claims reversal is warranted because of a comment on the videotape by Officer Morgan to Berry that if the drug dog did not “hit” on anything, the officer would “send you on your way.” From this “send you on your way” comment — made in order to placate what the videotape shows and the trial court found was an obviously unnerved Berry — the majority infers that the officer “abandoned” the VIN check.

However, Berry did not offer evidence or ever contend that the officer abandoned the VIN check. And Officer Morgan testified at both the preliminary hearing and at the hearing on the motion to suppress that Berry was not free to leave until the VIN information came back on the radio:

[Defense Counsel:] Now, Officer Morgan, do you remember appearing at a committal hearing on October 6th here in Rockdale County Magistrate Court with me and Mr. Berry? . . . Do you remember telling me that you were not going to let Mr. Berry go until you got the information back over the VIN check?
[Officer:] Yes.

Moreover, in the videotape the officer specifically told Berry that he needed to check the VIN because it is so easy to remove a paper drive-out tag like the one on Berry’s vehicle, go to an auto lot, put the paper tag on another vehicle, and drive the car away.

From this evidence, it would seem unreasonable to infer that Officer Morgan no longer cared what the VIN check would show and had abandoned his investigation of whether the rental car was stolen. While the majority finds that this Court has repeatedly held,

[a] significant discrepancy exists between the officer’s testimony that he had not completed his investigation of the drive-out tag when he conducted the search with his dog and his statement on the videotape that Berry would be free to go after the dog checked his car,
[i]t was the duty of the trial court to resolve all of these discrepancies in evidence and determine the credibility of the witnesses. On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgments made.

And it may be true, as the majority posits, that findings of fact which specifically conflict with facts recorded on videotape should give way to the videotape. But to me, it would be a true mistake to extend this objective principle by holding — as the majority opinion suggests — that an officer’s subjective thought processes later testified to at a suppression hearing must be articulated on the videotape or a “conflict” between tape and testimony ensues, and the tape prevails. Instead,

on these issues, the trial court’s ruling was in part dependent upon [the officer’s] credibility and the weight the trial court put upon the evidence. We must therefore defer to the findings of the trial court, as issues of disputed fact, the veracity of a witness, and the weight of the evidence are within its province.

In this case, the trial court resolved any discrepancies and specifically found that at the time of the search the “traffic stop was ongoing in the matter and the Defendant had not been given permission to leave.” The free air search by the K-9 was conducted and completed within two minutes of the officer’s VIN call-in and while both the officer and Berry were clearly waiting for a reply thereto. As such, the valid traffic stop was not prolonged, and there was no detention other than that which encompassed the proper stop.

3. The free air K-9 search did not violate the Fourth Amendment. The Fourth Amendment is not offended by requesting consent to search a vehicle for drugs during the course of a valid traffic stop, as was done in this case. “Having already effected a valid stop of the vehicle, the trooper certainly did not violate the appellant’s] Fourth Amendment rights merely by requesting such consent. Accord Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1972).” Likewise, a drug enforcement K-9 has a right to be on the public roadway, and a driver has no reasonable expectation of privacy in the airspace surrounding his car: “exposure . . . in a public place, to a trained canine [does] not constitute a ‘search’ within the meaning of the Fourth Amendment.” Thus, during the course of a valid traffic stop, a free air search, which does not prolong a legitimate detention, does not violate the Fourth Amendment: “police could have conducted the free-air search while the officer was issuing warnings for the traffic offenses.”

Further, this Court’s holding in Smith v. State is not applicable in this case, since the brief traffic stop was ongoing and was in no way prolonged in order to conduct the free air K-9 search.

Moreover, with regard to Smith v. State, such case was wrongly decided to the extent that it holds — as the special concurrence urges — mere questioning on an unrelated topic constitutes a violation of Terry. As the Eleventh Circuit held this year:

a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. . . . [T]he issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop. . . . Therefore, only unrelated questions which unreasonably prolong the detention are unlawful; detention, not questioning, is the evil at which Terry’s prohibition is aimed. Questions which do not extend the duration of the initial seizure do not exceed the scope of an otherwise constitutional. . . stop.

In this case, Berry’s motion to suppress was properly denied, and the judgment of the court below should be affirmed.

I am authorized to state that Judge Mikell joins in this dissent.

Decided March 30, 2001.

James S. Purvis, for appellant.

Richard R. Read, District Attorney, Heather C. Waters, Dabney Y. Kentner, Assistant District Attorneys, for appellee.

       190 Ga. App. 696 (379 SE2d 817) (1989).

       392 U. S. 1, 20 (88 SC 1868, 20 LE2d 889) (1968). See also United States v. Sharpe, 470 U. S. 675 (105 SC 1568, 84 LE2d 605) (1985).

        Watson, supra, 190 Ga. App. 696.

       (Citations and punctuation omitted.) Id. at 696-697.

       See Delaware v. Prouse, 440 U. S. 648, 653 (99 SC 1391, 59 LE2d 660) (1979).

       (Punctuation omitted.) McSwain v. State, 240 Ga. App. 60, 61 (522 SE2d 553) (1999) (quoting Terry, supra, 392 U. S. at 21).

       Of course, the officer’s investigation went far beyond this documentation check. I address the issues raised by his other conduct in Division 2 of this special concurrence.

       See Prouse, supra, 440 U. S. at 659-660 (considering the marginal contribution of stopping all drivers to find only one unlicensed driver).

       See id.

       Id. at 661-662.

       Id. at 653-654.

       Id. at 661.

       See id.

       See State v. Aguirre, 229 Ga. App. 736 (494 SE2d 576) (1997).

       See, e.g., United States v. Wilson, 205 F3d 720 (4th Cir. 2000); State v. Butler, 343 S.C. 198 (539 SE2d 414) (App. 2000); State v. Childs, 242 Neb. 426 (495 NW2d 475) (1993); State v. Chatton, 11 Ohio St.3d 59 (463 NE2d 1237) (1984).

       211 Ga. App. 840 (440 SE2d 727) (1994).

       According to a study conducted by the National Insurance Crime Bureau (NICB), a not-for-profit insurance organization committed to combating vehicle theft and insurance fraud, the ten most commonly stolen vehicles in the United States in 1999 were: 1. Honda Accord, 2. Toyota Camry, 3. Oldsmobile Cutlass, 4. Chevrolet full-size pickup, 5. Honda Civic, 6. Toyota Corolla, 7. Jeep Cherokee, 8. Chevrolet Caprice, 9. Ford Taurus, Í0. Chevrolet Cavalier. See NICB, Top Stolen Cars (November 14, 2000), http://www.nicb.org/services/ top_stolen_cars.html. If we continue to subscribe to the law established by Watson and Burtts, and relied upon by the dissent here, perhaps retailers of these top-ten stolen cars should include a disclaimer on the window sticker providing that “any person observed driving the vehicle may be detained by police at any time because this model car is stolen a lot of times.” Seemingly absurd, under Watson and Burtts an officer could stop a person driving one of these cars based upon his specific knowledge that the particular car is often stolen. See Watson, supra.

       216 Ga. App. 453 (454 SE2d 635) (1995).

        Terry, supra, 392 U. S. at 19, n. 15.

       Id.

       Id. at 20.

       460 U. S. 491 (103 SC 1319, 75 LE2d 229) (1983).

       Id. at 500.

       Id.

       Id.

       Supra, 216 Ga. App. at 454-455.

       Id. at 455.

        Royer, supra, 460 U. S. at 500.

        Sharpe, supra, 470 U. S. at 685.

       (Punctuation omitted.) Terry, supra, 392 U. S. at 9.

       The fact that under South Carolina law no expiration date need be shown on the tag makes Butler more applicable to our decision, not less so.

        Barber v. State, 236 Ga. App. 294, 297, fn. 1 (512 SE2d 48) (1999) (defendant waived issue raised in written motion by not addressing it at hearing); Roberson v. State, 228 Ga. App. 416, 420 (3) (491 SE2d 864) (1997).

        State v. Blackwell, 245 Ga. App. 135, 148 (2) (b) (iii) (537 SE2d 457) (2000) (Eldridge, J., dissenting).

       As reflected in Ga. L. 1998, p. 1182, § 4, applicable to the instant case.

       OCGA § 40-2-20 (c).

       OCGA § 40-2-8 as reflected in Ga. L. 1998, p. 1181, § 3, as applicable to the instant case, was significantly amended in Ga. L. 2000, p. 523, § 1, to provide for mandatory temporary licensing which displays the expiration date of the temporary licensing period.

       (Emphasis supplied.) OCGA § 40-2-8 (b) (3).

        Jordan v. State, 223 Ga. App. 176, 177 (1) (477 SE2d 583) (1996).

       343 S.C. 198 (539 SE2d 414) (App. 2000).

       Compare Ga. L. 1980, p. 746, and Ga. L. 1981, p. 716, § 4. See also Ga. L. 1993, p. 1260, amending OCGA § 40-2-8 “so as to require Georgia residents to maintain proof of vehicle registration in such motor vehicle at all times.”

        Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994).

       190 Ga. App. 696 (379 SE2d 817) (1989).

        Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

       Compare State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999); Migliore v.

        State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999); Simmons v. State, 223 Ga. App. 781-782 (479 SE2d 123) (1996); see also State v. Kwiatkowski, 238 Ga. App. 390 (519 SE2d 43) (1999).

       The officer never told Berry that he “would be free to go after the dog checked his car.”

        Moon v. State, 194 Ga. App. 777 (1) (392 SE2d 19) (1990).

        Lyons v. State, 244 Ga. App. 658, 661 (535 SE2d 841) (2000).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Kan v. State, 199 Ga. App. 170, 171 (1), (2) (404 SE2d 281) (1991).

        Pupo v. State, 187 Ga. App. 765, 766 (2) (371 SE2d 219) (1988); accord Taylor v. State,
        230 Ga. App. 749, 751 (1) (c) (498 SE2d 113) (1998).

        United States v. Place, 462 U. S. 696, 706-707 (103 SC 2637, 77 LE2d 110) (1983); O’Keefe v. State, 189 Ga. App. 519, 526 (376 SE2d 406) (1988); Boggs v. State, 194 Ga. App. 264-265 (390 SE2d 423) (1990); State v. Hall, 235 Ga. App. 412, 415 (509 SE2d 701) (1998).

        State v. Jones, 245 Ga. App. 763, 767 (538 SE2d 819) (2000).

       216 Ga. App. 453, 454 (454 SE2d 635) (1995).

       Notably, the officer’s questions relating to “personal matters” that concern the special concurrence were asked while the officer was “killing time” waiting for the driver’s license information to come back over the radio and did not prolong the detention. Berry answered willingly, and the video shows the exchange was agreeable to both parties.

       (Citations and punctuation omitted; emphasis supplied.) United States v. Purcell, 236 F3d 1274, 1279-1280 (11th Cir. 2001).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A0550. A01A0551.
    LAVJI v. THE STATE. ALJAWAVY v. THE STATE.
    (547 SE2d 628)
   Johnson, Presiding Judge.

Feroz Lavji, Hussain Aljawavy, and Mohammed Hemidi were indicted for armed robbery, and Hemidi was also indicted for possessing a firearm during the commission of a crime. Lavji and Aljawavy were tried together before a jury, while Hemidi was tried separately before another jury.

The jury in Hemidi’s case found him guilty of both armed robbery and possessing a firearm. He has previously appealed from his convictions. And we have affirmed those convictions.

The jury in Lavji and Aljawavy’s case also found them guilty of the armed robbery. Lavji and Aljawavy have filed separate appeals. Because Lavji and Aljawavy were tried together, we shall consider their appeals together in this opinion.

Lavji and Aljawavy both challenge the sufficiency of the evidence supporting their convictions, and Aljawavy further challenges the court’s jury charge. The challenges are without merit, and we therefore affirm the convictions of Lavji and Aljawavy.

1. Both Lavji and Aljawavy argue that the evidence mandates a finding that they did not willingly participate in the robbery, but were forced to participate by the gun-wielding Hemidi. Given the evidence in the record, we find the argument to be unpersuasive.

Viewed in the light most favorable to the verdict, the evidence shows that at about 1:00 on a January morning in 1998, Lavji, Aljawavy, and Hemidi drove to a gas station in Lavji’s wife’s car. The car’s license tag had been removed and replaced with a car dealer’s drive-out tag.

The three men waited in the parked car near the side of the gas station until a police officer, who had been inside the station’s store, left the area. After the officer left, the three men moved their car to the front of the gas station, got out of the car, and entered the store.

Once inside, Hemidi pulled a gun out of his clothes, jumped over the cash register counter, put the gun to the head of cashier Ernest Williams, forced Williams to his knees, and threatened to kill him.

Meanwhile, Lavji and Aljawavy stole various items from the store, including cigarettes, toy trucks, and coins. Lavji also pulled down the store’s security camera. As Lavji and Aljawavy ransacked the store, Hemidi led Williams into a bathroom and told him to count to 100.

While Hemidi was still in the bathroom, Lavji and Aljawavy left the store and got into their car. Police officers, who had been contacted by an eyewitness, arrived in time to see the two men in the car and Hemidi in the store. The police arrested Hemidi at the crime scene. But Lavji and Aljawavy sped away from the station.

One of the officers chased Lavji and Aljawavy. During the chase, Lavji and Aljawavy drove at high speeds, went the wrong way on a divided road, struck a curb, and crashed. They attempted to flee from the scene of the wreck on foot, but were apprehended by the officer.

Inside the getaway car, the police found cigarettes, rolled coins, and toy trucks, all of which had been taken from the gas station. They also found a mask, loose bullets, a holster, and the car’s license tag.

Both Lavji and Aljawavy gave statements to the police about the robbery. Neither of them claimed in their statements that they had been forced to participate in the robbery by Hemidi. But at trial, Lavji and Aljawavy both testified that Hemidi had waved the gun at them and ordered them to steal the items.

It is the function of the jury, not this court, to resolve conflicts in the evidence and to determine the credibility of the witnesses. In carrying out those functions, the jury in this case was authorized to disbelieve Lavji and Aljawavy’s claim that they had been forced to commit the robbery and to conclude instead that they participated freely in the crime. There was sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that Lavji and Aljawavy are guilty of armed robbery.

2. Aljawavy claims that the trial court erred in failing to give his requested charges that presence at the crime scene together with flight is not conclusive proof of guilt and that flight together with a connection between the defendant and others committing the crime is also insufficient to support a conviction.

While the court did not charge the jury on flight, it did charge the jury on mere presence at the crime scene, mere association with others involved in the crime, parties to a crime, conspiracy, and conduct after the crime. These instructions covered the same relevant legal principles as the requested charges, and the evidence shows that Aljawavy did more than merely flee, so there was no harmful error in the trial court’s decision.

Decided March 30, 2001.

Sara M. Yeager, for appellant (case no. A01A0550).

Zell & Zell, Glenn Zell, for appellant (case no. A01A0551).

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

3. Aljawavy contends that the court erred in its jury charge on the concept of reasonable doubt by including the statement that if “you are unable to say with reasonable certainty that he is guilty, then you should acquit him.” Aljawavy objects to the use of the phrase “reasonable certainty.”

The Supreme Court of Georgia has held that in the context of a court’s entire charge on reasonable doubt, it is not reasonably likely that the jury interpreted the court’s reference to reasonable certainty as allowing a conviction on evidence meeting a lower standard of proof than beyond a reasonable doubt. Having reviewed the court’s entire charge in the instant case, we find that the court fully and accurately charged the jury on reasonable doubt and its use of the phrase “reasonable certainty” in the context of the entire charge does not constitute reversible error.

Judgments affirmed.

Ruffin and Ellington, JJ, concur.

        Hemidi v. State, 245 Ga. App. 417 (537 SE2d 804) (2000).

        Scott v. State, 243 Ga. App. 383, 384 (1) (a) (532 SE2d 141) (2000).

        Hemidi, supra at 418 (1).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hemidi, supra at 418-419 (1).

       See Evans v. State, 233 Ga. App. 85, 86 (1) (503 SE2d 344) (1998) (court’s failure to charge on flight not error because court charged on mere presence and mere association, and evidence showed Evans did more than merely flee).

        Baldwin v. State, 264 Ga. 664, 665-666 (1) (449 SE2d 853) (1994).

       See Rivers v. State, 225 Ga. App. 558, 563 (5) (484 SE2d 519) (1997).


author: Smith, Presiding Judge.

text:
    A00A1810.
    McDONALD v. THE STATE.
    (548 SE2d 361)
   Smith, Presiding Judge.

Richmond McDonald was indicted on charges of child molestation and criminal attempt to commit aggravated child molestation. He was convicted on the child molestation charge. McDonald’s motion for new trial, as amended, was denied, and he appeals, raising several enumerations of error. Because we conclude that the trial court admitted pornographic materials unconnected with the crimes with which McDonald was charged in violation of the rule set out in Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999), we reverse.

The 12-year-old victim in this case alleged that McDonald molested her while she and Laura Scott, who is her cousin and also McDonald’s girlfriend, spent the night at McDonald’s apartment. McDonald testified, denying the allegations.

The State introduced extensive documentary evidence, including printouts of e-mail messages and portions of e-mail messages exchanged between McDonald and the victim, who resided in Florida. Those messages alluded to the events that may have occurred on the night of the alleged molestation. But while these messages were inculpatory to some extent, standing alone, they did not clearly show that McDonald had committed the offenses charged in the indictment.

1. Over McDonald’s objection, the State also introduced, and the trial court admitted, several graphic pornographic images retrieved and copied from Scott’s computer. The admission of these images constitutes one subject of McDonald’s appeal. Many of the images did not depict children but instead depicted sexual activity involving adult women. Other images were referred to as “banners,” defined by expert testimony as an advertisement across the top or bottom of the computer screen “like a commercial on the internet.” And some of the images were referred to as “thumbnails.” One expert stated that “thumbnails” are sometimes found on web pages and defined the term as “a smaller picture of a picture” that, if clicked on, would “download a larger version of the picture.” According to this expert, if only the “thumbnail” image appeared on a hard drive, this would indicate that no one ever clicked on the small image to download the larger one.

We agree with McDonald that many of the pornographic materials were erroneously admitted. The images were not relevant and were not admissible simply to show his lustful disposition. In Simpson, supra, the Supreme Court of Georgia limited the admissibility of sexual materials or paraphernalia found within a defendant’s possession. The Court held that such evidence is

inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Id. at 774 (1).

Here, several images depicting sexual activity involving adults were introduced for the sole purpose of showing McDonald’s lustful disposition and were not linked to the crimes for which he was charged. The images were not shown to the victim, nor were they emailed to her. Under the rule set out in Simpson, the admission of such images was error. See also Tyson v. State, 241 Ga. App. 288, 291-292 (2) (526 SE2d 603) (1999) (full concurrence as to Division 2); Frazier v. State, 241 Ga. App. 125, 126-127 (1) (524 SE2d 768) (1999). And while the State did present inculpatory evidence against McDonald, we cannot conclude that the error in admitting the images was harmless. As in Frazier, supra, no physical evidence was. offered. Also, McDonald

waived his constitutional right not to testify on his own behalf and denied having committed the charged acts. Thus, the jury was required to decide between the credibility of the State’s inculpatory evidence and the credibility of [his] exculpatory testimony. As a matter of Georgia law, the harmless error or overwhelming evidence analysis does not apply under these circumstances.

(Citations and punctuation omitted.) Id. at 127. Because we cannot conclude with any certainty that the admission of the images had no prejudicial effect, McDonald is entitled to a new trial.

On retrial, pornographic images related to the crime for which McDonald is charged may be admissible under Simpson, provided the State lays a proper foundation. Some question did exist during the trial of this case as to whether the State properly showed a connection between McDonald and the pornographic materials. It is not clear, for example, whether the “thumbnails” and “banners” admitted info evidence were ever opened or downloaded by McDonald. And evidence also was introduced that at least one other person, Scott’s former husband, had access to the computer before Scott and McDonald began dating. Scott’s ex-husband had purchased the computer in October 1995, and McDonald testified that he did not have access to the computer before February 1998.

We find no merit in the State’s argument that Simpson should not be applied retroactively to this case. The Supreme Court in Simpson modified a rule of evidence, which was procedural, and the new rule therefore may be applied retroactively. “[A] new rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final.” (Citation and footnote omitted.) Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992). See also Smith v. State, 268 Ga. 860, 861 (2) (494 SE2d 322) (1998). While this case was not on direct review when Simpson was decided, the case was not yet final at that time. Simpson was decided after McDonald was convicted but before he was sentenced and before he was required to file a notice of appeal. The rule announced in Simpson is applicable to this case.

2. We address here other arguments raised by McDonald that are likely to recur on retrial. He correctly contends that the State was erroneously permitted to ask the victim questions concerning her previous sexual experience. Over McDonald’s objection, the victim testified that before her experience with McDonald, no one had ever placed his hands underneath her shirt and felt her breasts or performed any of the other acts allegedly performed by McDonald. Such testimony was not admissible. See Herndon v. State, 232 Ga. App. 129, 132 (2) (499 SE2d 918) (1998).

3. McDonald argues that the State failed to comply with OCGA § 24-9-83 when it cross-examined him about a recorded conversation he had with an investigator. It is not disputed that the conversation was transcribed into a 22-page transcript. The State asked McDonald numerous questions concerning statements he made during the conversation without showing the statements to McDonald or reading the statements in his hearing, in contravention of OCGA § 24-9-83. That Code section requires that if a witness is to be impeached by a previous contradictory statement and the statement is in writing and in existence, it “shall be shown to him or read in his hearing.”

4. Finally, we address McDonald’s contention that the trial court erred in refusing to allow expert testimony concerning the creation of “false memories” in children. We note simply in this regard that such testimony may be permissible, provided that the party seeking to present the testimony shows that the expert’s opinion is based on facts within his or her personal knowledge or other facts admitted into evidence. Barlow v. State, 270 Ga. 54, 55-56 (507 SE2d 416) (1998). Compare Lane v. State, 223 Ga. App. 740, 744 (7) (479 SE2d 350) (1996) (proffered testimony not based on expert’s personal knowledge or facts admitted in evidence and trial court did not abuse discretion in excluding testimony).

5. We are unable to discern whether McDonald’s remaining enumerations will recur on retrial, and we therefore do not address them here.

Judgment reversed.

Johnson, P. J., and Phipps, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, the State relies heavily on an alleged “confession” or admission against penal interest made by McDonald to the victim’s mother to argue that error in admitting the pornographic images was harmless. Several months after the alleged incident, the mother confronted McDonald while Laura Scott and McDonald were visiting in her home. She testified that she told McDonald she knew about e-mails he had exchanged with the victim and told him to “tell me what happened.” According to the mother, McDonald responded by saying, “I believe the term is heavy petting.” She testified that McDonald also admitted he touched the victim under her blouse on her bare skin, exposed himself to the victim, and kissed her.

While admitting that the victim’s mother confronted him, McDonald denied ever using the term “heavy petting” and indicated that he was shocked and surprised by her behavior. He testified that she was yelling and would not allow him to talk and that while she was making accusations against him, he was shaking his head and saying, “uh uh” but that he “really didn’t actually say anything and if I said anything, she wouldn’t have heard it anyway.” He stated that she “did not give me a chance to say anything.” He denied ever placing his hands under the victim’s clothing, touching her breasts or vaginal area or otherwise touching any of her private parts, or kissing her.

The evidence against McDonald is troubling. This 21-year-old man did, for example, exchange questionable e-mails with the 12-year-old victim. And as argued by the State, in those cases in which we concluded that error was harmful, the evidence did not show an admission against interest by a defendant. But any such alleged admission, as well as other potentially inculpatory evidence in this case, does not render harmless the error in admitting the pornographic images.

Here, as in Frazier v. State, 241 Ga. App. 125 (524 SE2d 768) (1999), the State did present “a substantial amount of inculpatory evidence.” Id. at 126. In Frazier, a child molestation case, the State was permitted to introduce similar transaction evidence showing that the defendant had molested another child. But despite this damaging evidence, we concluded that the admission of pornographic materials unrelated to the crime for which the defendant was charged was not harmless. The defendant presented alibi witnesses, the State offered no physical evidence, and the defendant testified on his own behalf. We concluded that under these circumstances, “the jury was required to decide between the credibility of the State’s inculpatory evidence and the credibility of [the defendant’s] exculpatory testimony.” (Citation and punctuation omitted.) Id. at 127.

The facts here are somewhat different from those in Frazier, as correctly argued by the State. No alibi witnesses testified, for example, and McDonald allegedly admitted to the mother that he touched the victim on her bare skin under her shirt, kissed the victim, and exposed himself to her. No inculpatory statement appears to have been made in Frazier.

But in Higginbotham v. State, 207 Ga. App. 424 (428 SE2d 592) (1993), the defendant did make an inculpatory statement in which he admitted his participation in a robbery. Id. at 425 (2). At trial, where, incidentally, a co-indictee identified him as a participant in the robbery, he recanted that earlier, inculpatory statement. Id. at 427 (4). We found that the trial court’s erroneous admission of evidence of another crime was not harmless under these circumstances. Even though the defendant had previously admitted to the crime, we concluded that we could not state “with any degree of certainty that the erroneous admission of the ‘other crimes’ evidence did not have any prejudicial effect on the jury’s determination as to appellant’s credibility and, consequently, on the jury’s determination as to his guilt.” Id.

By way of analogy here, even assuming that McDonald made inculpatory admissions to the victim’s mother, he denied these admissions at trial, and as in Higginbotham and Frazier, the jury was required to choose between the credibility of the State’s inculpatory evidence and the credibility of the exculpatory evidence presented by McDonald. We consequently cannot conclude with any certainty that the graphic images unrelated to the crime for which McDonald was charged did not have a prejudicial impact on the jury’s determination of McDonald’s “credibility and, consequently, on the jury’s determination as to his guilt.” Frazier, supra, 241 Ga. App. at 127 (1), citing Higginbotham, supra, 207 Ga. App. at 427 (4). A new trial is required.

Decided March 6, 2001

Reconsideration denied April 2, 2001.

Gardner & Gardner, Milton F. Gardner, Jr., for appellant.

Fredric D. Bright, District Attorney, Dawn M. Baskin, Assistant District Attorney, for appellee.

We note that Hite v. State, 208 Ga. App. 267 (430 SE2d 125) (1993) (physical precedent only), relied on by the State, is not controlling here. That case does not involve the admission of unrelated, highly prejudicial pornography, which the Supreme Court of Georgia prohibited in Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999). Moreover, the evidence here was not overwhelming, but it was in Hite.

Motion for reconsideration denied.


author: Blackburn, Chief Judge.

text:
    A00A1929.
    MAGNOLIA COURT APARTMENTS, INC. v. CITY OF ATLANTA et al.
    (545 SE2d 643)
   Blackburn, Chief Judge.

In this case involving the allegedly wrongful condemnation and demolition of apartment buildings found unfit for human habitation, Magnolia Court Apartments, Inc. appeals the dismissal with prejudice of its case for money damages against the City of Atlanta and Dale S. Haygood, Chief Demolition Officer of the City of Atlanta. Magnolia contends that the trial court erred by finding that (1) ante litem notice was required before suit could be filed against the City and (2) there was no evidence that Haygood, who was sued in her official capacity, acted with wilfulness, malice, or corruption. Magnolia instructed the clerk of the court to specifically exclude the transcript of the trial court’s hearing on these issues from our review. Magnolia has otherwise failed to support its enumerations of error with citations to the record and case law in the five-sentence brief which it filed. We therefore affirm.

Since there is no transcript of the hearing, we are left with the pleadings, orders, and briefs of the parties. While not proper evidence, they reflect that on May 25, 1995, the City’s In Rem Review Board issued an order to demolish the apartments unless they were repaired and made habitable within 60 days. On June 2, 1995, Magnolia filed a complaint against the City and Haygood, requesting (1) a temporary or permanent injunction against the demolition and (2) compensation of $1 million for the pending demolition. Magnolia, however, did not request a hearing on its complaint, and demolition began, per the In Rem Board’s order, on August 2, 1995. Magnolia then moved for a hearing on its injunction, and the City agreed to a voluntary ten-day temporary injunction from August 10 to August 20, 1995. On August 20, 1995, the City resumed its demolition of the apartments until they had been completely razed to the ground. Magnolia again moved the trial court to consider its request for an injunction, and, on January 17, 1996, the trial court found such request to be moot because the apartments had already been demolished.

Thereafter, on August 16,1996, Magnolia filed a motion for summary judgment on its remaining claim that it should be compensated by the City for the demolition of its apartments. This motion was denied, and Magnolia’s claim for damages or compensation went to trial.

At the beginning of the trial, the defendants made a motion to dismiss Magnolia’s case, contending that Magnolia failed to provide the City with ante litem notice pursuant to OCGA § 36-33-5 and that Magnolia had no claim against Haygood, who had approved the demolition in her official capacity. The trial court granted the motion to dismiss, and Magnolia now appeals.

Although the hearing regarding the City’s motion to dismiss would be the main source of information to decide the issues in this case, Magnolia, in its notice of appeal, specifically asked that the transcript of this hearing be excluded from the record on appeal.

In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). Thus where the transcript is necessary, as in the case sub judice, and appellant omits it from the record on appeal . . . , the appellate court must assume the judgment below was correct and affirm.

(Punctuation omitted.) Reid v. Royal Creek Apts. Here, Magnolia has chosen to exclude from our review the transcript which contains material at the very heart of this appeal. As such, we must assume that the trial court was correct in its rulings. Id.

Decided February 16, 2001

Reconsideration denied April 2, 2001

Moreton Rolleston, Jr., for appellant.

Bernard R. Thomas, Sr., Susan R Langford, for appellees.

Moreover, Magnolia has wholly failed to support its enumerations of error filed with this Court. The argument contained in Magnolia’s brief, which contains a grand total of five sentences, makes no references to the record or transcript (which it purposefully excluded) in support of the enumerated errors, thereby violating Court of Appeals Rule 27. Magnolia merely contends that the order of the trial court was erroneous and expects this Court to scour the record to gamer evidence on its behalf and to perform the legal research for it. “ ‘It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.’ ” Bergmann v. McCullough. Because Magnolia has made no effort to shoulder its burdens, there is nothing for us to review.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Reid v. Royal Creek Apts., 239 Ga. App. 536, 537 (521 SE2d 210) (1999).

        Bergmann v. McCullough, 218 Ga. App. 353, 355-356 (3) (461 SE2d 544) (1995).


author: Phipps, Judge.

text:
    A00A1944.
    WITHINGTON v. VALUATION GROUP, INC.
    (547 SE2d 594)
   Phipps, Judge.

Richard Withington was a salesman and independent contractor for Valuation Group, Inc. (VGI), a tax consulting firm, from 1992 to 1998. He sued VGI in 1998, claiming that it had underpaid his commissions and breached his contract by terminating it without prior notice, among other things. After hearing Withington’s evidence, the trial court directed a verdict for VGI on the grounds of accord and satisfaction. We find that the evidence does not demand a verdict for VGI because a jury would be authorized to find that there was no bona fide dispute between the parties that could provide a basis for an accord and satisfaction. We therefore reverse.

The independent contractor agreement between VGI and Withington required VGI to pay Withington a monthly commission based on payments it received from clients that Withington had originated. The commission was equal to 25 to 30 percent of cash receipts, depending upon the type of work performed by VGI and the date Withington secured the client. A February 3, 1997 contract amendment provided for commissions based on a percentage of gross revenues “net of expenses for travel, legal fees, temp fees & filing fees.” Handwritten on the amendment, with an arrow pointing to the expenses provision, is the phrase “(extraordinary and mutually agreed upon in advance).” Termination of the contract by either party required 360 days prior written notice.

Although Withington brought in approximately $3,000,000 in business in six years, on November 13, 1997, VGI gave him written notice that his progress was unsatisfactory and that he must meet a 30-day sales effort for the contract to remain in force. On April 3, 1998, the president and vice-president of VGI met with Withington and told him, “we would like for you to leave,” although they agreed he could stay through the end of April to work on existing prospects. Withington told them he would leave, but he later realized that VGI had not given him the 360 days notice the contract required.

A few days after the April 3, 1998 meeting, a tornado severely damaged VGI’s offices, and the company moved to temporary facilities. Afterward, VGI no longer provided Withington with office space, and, although Withington worked on preexisting prospects out of his home, he did not bring any new business to VGI.

In August 1998, VGI deposited a monthly commission payment of $44,622.40 into Withington’s account, and the related commission statement showed that the bulk of it was attributable to VGI’s receipt of $161,713.67 from Inbrand Corporation. Withington learned from his Inbrand contact that Inbrand had actually paid VGI $194,000. Withington then discovered that First Image had paid VGI $12,694.92 in July, although his commission statement showed a payment of $11,844.92. Withington pointed out these discrepancies to a VGI officer, who explained that the differences were due to expenses.

Withington subsequently received a commission statement which showed corrected receipts from Inbrand and First Image, but VGI did not tender any additional commissions on those accounts. A VGI officer told Withington that VGI had placed a fifteen percent “hold back” on the two accounts in the event that VGI had to refund money to the clients. Withington testified that VGI had not previously placed any “hold back” on his commissions. Instead, if VGI refunded a client’s fee, they would make a corresponding deduction in Withington’s subsequent commission checks.

On September 21, 1998, Withington’s attorney sent a certified letter to the president of VGI, maintaining that VGI owed $8,960.04 on the Inbrand and First Image accounts and that his contract contained no hold back provisions. On September 22, 1998, Withington composed a handwritten letter and delivered it to VGI’s offices. In it, he claimed VGI had miscalculated his commission. After reading the handwritten letter, an officer of VGI told Withington, “I told you we would pay you. Stop harassing us.” He advised Withington that he was no longer welcome in VGI’s offices.

VGI did not respond directly to the September letters, but submitted a proposed “Separation Agreement” to Withington’s attorney. Withington responded with a letter demanding payment of overdue commissions and damages for the “unlawful termination” of his contract and stating that no expenses should have been deducted from his commission payments without his approval, among other things. In turn, VGI sent Withington an undated document entitled “This Letter Is For Settlement Purposes Only,” accompanied by a check dated October 1, 1998, payable to Withington, in the amount of $14,558.53. The back of the check was endorsed: “This payment is in full and final settlement of all amounts owed by payor (Valuation Group, Inc./Property Tax Group, Inc.) to payee through October 1, 1998.”

The undated letter referenced an attached “reconciliation” showing how the payment was calculated, but none was attached. The letter claimed that the amount tendered represented what VGI owed Withington under its independent contractor arrangement through October 1, 1998, and that Withington had terminated the contract. The letter also provided that VGI would recalculate Withington’s commissions “past, present and future” to include expense deductions if Withington did not accept the October 1 check.

On October 23, 1998, Withington corresponded with VGI, noting that the reconciliation was omitted from VGFs settlement letter. He wrote that, “We need to address all issues and come up with a reasonable settlement on all issues.” VGI subsequently provided a statement in the form of a spreadsheet showing that VGI owed Withington $14,978.91. The spreadsheet broke down receipts by client, date received by VGI, expenses, and commission percentage. The spreadsheet was presented in the same format as previous commission statements except for the column labeled expenses. The commission statements that Withington had received after January 1, 1997, had not provided for expense deductions. VGI sent Withington a second check in the amount of $420.38, which contained the same restrictive endorsements. The October 1 check and the $420.38 check together equaled the amount due as shown in the reconciliation statement. On December 23, 1998, Withington negotiated the October 1 check. He never negotiated the $420.38 check. VGI sent Withington two more checks also marked with a statement that they constituted full and final settlement of all amounts owed by VGI to Withington through December 1, 1998, and January 31, 1999, respectively. Withington negotiated the checks in March 1999, writing “disputed — all rights reserved” along with his signature.

At trial, Withington presented evidence of approximately $56,000 in claims for underpaid commissions. He also claimed lost income of $170,000 by reason of VGI’s failure to give him 360 days prior notice of contract termination.

“A directed verdict is authorized only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” On appeal, we conduct a de novo review and will uphold the grant of a directed verdict only if all the evidence demands it.

An accord and satisfaction is an agreement between two parties to give and accept something in satisfaction of a right of action which one has against the other. VGI maintains that, by negotiating the October 1 check, Withington accepted it in accord and satisfaction of their preexisting dispute. Withington argues that there was no “bona fide dispute” between the parties as to the amount due and that his negotiation of the October 1 check did not settle his outstanding claims against VGI.

OCGA § 13-4-103 provides:

(a) Except as otherwise provided in this Code section, an agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction unless it is actually executed by the payment of the money, the giving of additional security, the substitution of another debtor, or some other new consideration, (b) Acceptance by a creditor of a check, draft, or money order marked “payment in full” or with language of equivalent condition, in an amount less than the total indebtedness, shall not constitute an accord and satisfaction unless: (1) A bona fide dispute or controversy exists as to the amount due; or (2) Such payment is made pursuant to an independent agreement between the creditor and debtor that such payment shall satisfy the debt.

VGI argues that, because the evidence shows that the dispute here was preexisting and known to both parties before VGI tendered the October 1 check, it was a “bona fide dispute” as a matter of law.

To constitute accord and satisfaction by payment of less than the amount due under OCGA § 13-4-103 (b) (1), the dispute between the parties must be bona fide; the bona fide dispute must be a dispute “between the parties” and not one “confined to the mind of the sender of the check”; and the bona fide dispute between the parties must have existed previously to the debtor’s tender of an amount less than the sum demanded.

Withington argues that there is no “bona fide dispute” unless VGI shows that its offer to settle the dispute through an accord and satisfaction was made in good faith. This argument is supported by Sylvania Elec. Products v. Elec. Wholesalers. OCGA § 13-4-103 (b) is a codification of the holding in that case.

Sylvania Elec. Products is followed by Sunbelt Life Ins. Co. v. Alapaha and Treadwell v. Treadwell. And in Lewis v. Alfred L. Simpson & Co., we reconfirmed that a bona fide dispute requires good faith on the part of the debtor who submits a payment in full satisfaction of a claim, even if there is a preexisting dispute between the parties.

We must determine whether the evidence here would authorize a jury to find that VGI’s offer to settle its dispute with Withington, as made through its October 1 check, was not made in good faith.

A jury would be authorized to find that Withington was dependent upon VGI to correctly report receipts used to calculate his compensation and that the origin of the dispute between Withington and VGI lay in VGI’s underreporting of receipts from Inbrand and First Image. The evidence also would support a finding that VGI was not authorized by the contract to deduct expenses from Withington’s commission payments without Withington’s approval, but that VGI threatened to recalculate all of Withington’s commissions to include expense deductions if Withington did not agree to accept the October 1 check. And the evidence would authorize a finding that VGI breached Withington’s independent contractor agreement by terminating it without giving the required prior notice and that VGI tried to foreclose Withington’s claims against VGI for breach of contract by offering Withington no more than what VGI owed him for unpaid commissions under its preexisting written agreement. Taken together, the jury would be authorized to find that VGI acted in bad faith both in generating the underlying controversy and in its offer to settle that controversy through the tender of the October 1 check.

“[A]s a general rule, whether there is [an] accord and satisfaction is a question for the jury.” VGI points to a number of instances where summary judgment was nevertheless proper. But the decisions finding that a dispute had been resolved by accord and satisfaction as a matter of law can be distinguished, either because the decisions rested on statutory authority apart from OCGA § 13-4-103 or because the debtor’s good faith was not an issue.

We hold that the evidence presented would allow a jury to find that the preexisting dispute between Withington and VGI was not a bona fide dispute. Accordingly, the evidence does not demand a finding that an accord and satisfaction extinguished all of Withington’s claims against VGI, and the trial court erred in so ruling.

Decided March 15, 2001

Reconsideration denied April 2, 2001

Stanley E. Kreimer, Jr., for appellant.

McGee & Oxford, James J. Brissette, for appellee.

Judgment reversed.

       (Emphasis in original.)

       (Citations and punctuation omitted.) Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (1994).

       Id.

        Woodstock Road Investment Properties v. Lacy, 149 Ga. App. 593 (254 SE2d 910) (1979).

       (Citation omitted.) Treadwell v. Treadwell, 218 Ga. App. 823, 826 (463 SE2d 497) (1995).

       There is a longstanding principle of good faith in reaching an accord and satisfaction. In order to render valid the compromise agreement, it is not essential that the matter should be really in doubt; but it is sufficient if the parties consider it so far doubtful as to make it the subject of compromise. But it is necessary, in order to furnish a consideration for such compromise agreement, that the contention be made in good faith and be honestly believed in.
      (Citations omitted.) Preston v. Ham, 156 Ga. 223, 234 (119 SE 658) (1923).

       198 Ga. 870 (33 SE2d 5) (1945).

       See Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga. App. 628, 630 (2) (337 SE2d 410) (1985). Although the holding in Sylvania Elec. Products was expressly disapproved in Rivers v. Cole Corp., 209 Ga. 406, 408 (73 SE2d 196) (1952), “OCGA § 13-4-103 (b) has obviated the effect of the holding in Rivers and has elevated the holding in Sylvania Elec. Prods, to its current status as the applicable statutory law of this State with regard to accord and satisfaction.” Sunbelt Life Ins. Co. v. Bank of Alapaha, supra at 630.

       Supra, 176 Ga. App. at 630.

       Supra, 218 Ga. App. at 826 (1).

       183 Ga. App. 166, 167 (358 SE2d 262) (1987).

       See Treadwell v. Treadwell, supra, 218 Ga. App. 823.

       (Punctuation, omitted.) Derosa v. Shiah, 205 Ga. App. 106, 108 (1) (421 SE2d 718) (1992).

       Authority presented by VGI includes Kendrick v. Kalmanson, 244 Ga. App. 363 (534 SE2d 884) (2000) (dispute over whether renovation work was a flat fee or on a time and materials basis); Rabenstein v. Cannizzo, 244 Ga. App. 107 (534 SE2d 847) (2000) (dispute involved amount of an insurance claim); Mitchell v. W. S. Badcock Corp., 230 Ga. App. 352 (496 SE2d 502) (1998) (dispute over expenses); and Habachy v. Ga. Health Group, 207 Ga. App. 288 (427 SE2d 808) (1993) (dispute over how many hours of work remained unpaid).

       For example, in Hadson Gas Systems v. Atlanta Airlines Terminal Corp., 200 Ga. App. 363 (408 SE2d 454) (1991), the question of whether a bona fide dispute existed as to the amount due was not part of the analysis. We cited OCGA § 13-4-101, which provides for an accord and satisfaction of a previous agreement by a subsequent agreement, but not OCGA § 13-4-103.

       See Lewis v. Alfred L. Simpson & Co., supra, 183 Ga. App. at 167. In distinguishing two decisions in which summary judgment of accord and satisfaction was proper, we noted “the absence therein of any jury question with regard to whether the debtor’s dispute of the amount owed to the creditor was bona fide.” Id.