text:
    A00A2375.
    ARNOLD v. THE STATE.
    (545 SE2d 312)
   Ruffin, Judge.

A jury found Gary James Arnold guilty of child molestation, felony obstruction of an officer, and attempted interference with government property. Arnold appeals, challenging the sufficiency of the evidence, the trial court’s jury instructions, and the court’s failure to grant a mistrial due to purportedly inadmissible character evidence and impermissible closing argument. For reasons that follow, we affirm.

1. In two enumerations of error, Arnold asserts that the evidence is insufficient to support the jury’s verdict finding him guilty of child molestation and felony obstruction of an officer. In reviewing these assertions, we do not weigh the evidence or determine witness credibility. Instead, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Arnold guilty of each element of the charged offenses beyond a reasonable doubt.

(a) Viewed in this light, the evidence supporting Arnold’s conviction for child molestation shows that the victim was eight-year-old H. C. On the afternoon of the incident, H. C. walked home from school to the apartment where she lived. Finding the front door locked and nobody home, H. C. went to a pay phone in the apartment complex to call her mother. A man, later identified as Arnold, was using the phone. When Arnold finished, H. C. approached the phone to call her mother, but realized she had no change. Arnold gave H. C. money to make the call, then stood in the doorway of a nearby apartment. The pay phone, however, would not accept the coins, and H. C. returned the money to Arnold, who remained in the doorway.

After H. C. gave the money to Arnold, he began asking her questions about her family. Arnold then asked H. C. if she wanted to use his phone. H. C. declined, and Arnold asked her if she wanted to come in his apartment. H. C. again declined, and Arnold, still standing in the doorway, asked her if she wanted to see something. Curious about what Arnold would show her, H. C. acquiesced. Arnold then put a hand on his genitals, unbuckled his belt, and unzipped his pants. According to H. C., she “turned around when [Arnold] had got finished unzipping his pants because [she] knew what was going — what he was going to do.” Although Arnold told H. C. to turn back around to see him, she refused until she heard him zipping his pants back up and buckling his belt. H. C. testified that Arnold asked her if she “want[ed] to see it again” and that he “started unzipping and unbuckling his pants.” When H. C. realized what Arnold was doing, she turned away again, and he asked her if she knew anything about sex. Arnold then informed H. C. that her mother’s car had just pulled up and told her not to tell her mother what happened. H. C. ran home and told her mother what occurred.

H. C.’s mother immediately went to the apartment and confronted Arnold, who was wearing a bandanna on his head. According to H. C.’s mother, Arnold “acknowledged it, but he said it was someone else, and that he had cursed them out, told them that they were wrong, and that they shouldn’t have done it.” H. C.’s mother suspected that Arnold was the culprit and asked him to wait for H. C. to come to the apartment to allay her suspicion. H. C.’s mother testified that Arnold “got real nervous,” said he had to use the bathroom, and closed the door.

Still trying to determine whether Arnold was the culprit, H. C.’s mother asked H. C. whether the man was wearing a bandanna on his head. When H. C. confirmed that he was, her mother called the police.

After speaking with H. C.’s mother, the two responding officers, Charles' Curl and J. J. Mack, went to Arnold’s apartment. Officer Curl testified that when they questioned him about the incident, Arnold offered the following explanation:

He was coming out of the bathroom. His genitals were still out of his pants. . . . He was adjusting himself, putting his penis back in his pants, walking through the living room area of the apartment, when he looked over at the doorway, which was open, and the child was standing in his doorway, and that the child had seen his penis. But it was all innocent, accidental.

Arnold did not testify at trial, but he presented testimony from an expert forensic psychologist specializing in sexual deviancy. The psychologist rendered his opinion that Arnold’s motivation in exposing himself was not sexual gratification. Instead, the psychologist testified that Arnold’s conduct “would be a classic example of someone who was trying to assume a position of power and frighten an unsuspecting person by exposing part of their body that is not normally exposed. So that would be a classic example of an exhibitionist.”

Arnold asserts that these facts are insufficient to support the jury’s verdict “because the victim never saw his penis or [saw him] touch[ ] himself inappropriately.” We disagree.

Under Georgia law, “[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Although a strict construction of this statute requires that the perpetrator perform the immoral or indecent act in the child’s presence, we are aware of no authority which requires the child to observe the entire act. Here, the evidence showed that the victim observed Arnold put his hand on his genitals and begin disrobing. And Arnold, in his explanation to the investigating officers, acknowledged that he touched his exposed penis in the child’s presence, though he asserted he was merely adjusting himself after using the bathroom. Although the evidence showed that Arnold was unsuccessful in his attempt to coax H. C. to look at his exposed penis, his conduct is rendered no less culpable by the victim’s good judgment in turning her head away.

Furthermore, whether Arnold’s intentions were innocent as he asserted to the officers, or that of an exhibitionist as stated by his expert, or to arouse his own sexual desires as found by the jury, was

peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak . . . the verdict will not be set aside on that ground. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.

The jury was permitted to infer sexual intent from Arnold’s conduct, including his encouragement for H. C. to look at him and his query about her sexual knowledge.

Finally, contrary to Arnold’s assertion, the jury was not required to find that he touched himself inappropriately. The act of intentionally exposing his penis in the child’s presence to satisfy his own sexual desires was sufficient to support the jury’s verdict.

(b) Arnold also asserts that the evidence was insufficient to support the jury’s verdict that he is guilty of felony obstruction of an officer. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that while questioning Arnold, Officer Curl requested a computer check of his name from the dispatcher. The computer check revealed an outstanding felony warrant. Upon learning of the warrant, the officers handcuffed Arnold and placed him in a patrol car. Once in the car, Arnold became belligerent and began kicking the car window. When Arnold ignored Officer Mack’s request to stop kicking the window, Officers Mack and Curl removed him from the car. During their attempts to restrain Arnold, he became aggressive and threatened Officer Mack. Arnold stated that “if he saw [Officer Mack] again, he was going to pop a cap in his ass.” Officer Curl testified that Arnold’s threat is street slang for shooting somebody. Based on this threat, Arnold was indicted for felony obstruction of an officer.

The felony offense of obstructing or hindering law enforcement officers is defined by OCGA § 16-10-24 (b), which provides that “[w]hoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer . . . is guilty of a felony.” Where, as here, the offense is grounded on verbal acts, the “[s]peech must reasonably be interpreted as a threat of violence in order to constitute an offer of violence under OCGA § 16-10-24 (b).” The interpretation of the speech is a task for the jury. Viewing the evidence that Arnold threatened to shoot an arresting officer in a light most favorable to support the jury’s verdict, we find that it was sufficient to authorize a rational trier of fact to find him guilty of felony obstruction beyond a reasonable doubt.

2. In addition to challenging the evidence supporting his conviction for felony obstruction, Arnold asserts that the trial court erred by refusing to charge the jury on the lesser included offense of misdemeanor obstruction. In response, the State asserts, among other argument, that the trial court did not err because Arnold never requested the charge in writing. The State has obviously neglected to refer to Arnold’s trial transcript citation which includes a six-page colloquy during which counsel and the trial judge discussed the propriety of Arnold’s written request to charge on the lesser included offense of misdemeanor obstruction. Likewise, the State’s argument disregards Arnold’s written charge request on misdemeanor obstruction, also contained in the record. Though we are troubled by the State’s failure to review the record, we nonetheless find no error in the trial court’s refusal to give the requested charge.

The general rule is that a trial court must give a written request to charge a lesser included offense if there is any evidence that the defendant is guilty of the lesser offense. A corollary to this rule, however, is that “[w]hen the evidence shows completion only of the greater offense, it is unnecessary for the trial court to charge on the lesser offense.”

In this case, Arnold was indicted for felony obstruction based solely on his threat to “pop a cap in [the officer’s] ass.” The jury necessarily interpreted Arnold’s declaration as a threat of violence. If, as Arnold asserts, the jury interpreted his speech as just “nonsense,” and not a threat, then the speech would not be' censurable under OCGA § 16-10-24 as either a misdemeanor or a felony. This is because “[t]o argue with, curse loudly at, [or] verbally interrupt a police officer while making the arrest of another does not constitute obstruction of a police officer.” Because the undisputed evidence at trial showed that Arnold completed only the greater offense of felony obstruction, or no crime at all, the trial court did not err in refusing to charge the jury on misdemeanor obstruction.

3. Arnold asserts that the trial court erred in failing to grant a mistrial because the State impermissibly placed his character in evidence. The record shows that Arnold moved in limine to exclude evidence that he was on probation at the time of his arrest. During argument on the motion, Arnold’s counsel elaborated that the State should be prohibited from eliciting testimony identifying either the specific offenses underlying his probation or the fact that he was arrested on a probation warrant. The trial court ruled that the State would be limited to presenting evidence that Arnold was arrested on an “outstanding warrant.” During the trial, however, the assistant district attorney was attempting to establish who handcuffed Arnold, and in his response the testifying officer stated that the computer check revealed a “felony outstanding warrant. That’s the reason he was placed into handcuffs at the time.”

Arnold did not object or move for a mistrial at the time, but in his motion for a new trial argued that the trial court erred in failing to grant a mistrial based on the officer’s reference to a “felony outstanding warrant.” We disagree.

On appeal, we will not disturb a trial court’s ruling on a motion for mistrial absent an abuse of discretion. Here, we note that the testifying officer did not mention the specific offenses underlying the warrant or that Arnold was on probation, which were the specific objections raised in his motion in limine. In addition, it is clear that the witness’s testimony was unresponsive to the State’s question. Finally, as a general rule all circumstances surrounding an arrest are generally admissible. For these reasons, we conclude that the trial court did not abuse its discretion in failing to grant a mistrial.

4. Arnold asserts that the trial court erred in failing to grant a mistrial based on the State’s impermissible closing argument. The record reveals that during closing argument, defense counsel argued that Arnold’s threat to Officer Mack that he was going to “put a cap in his ass,” was merely a “spontaneous” statement that Arnold made “without meaning it.” Addressing this argument, the assistant district attorney stated in closing argument:

People just say things. They don’t mean them. So let’s not take them seriously. I’m going to shoot you. Well, you’re just saying that. I won’t take it seriously. I’m just going to kill your parents. Well, we won’t take that seriously. I am just going to plant a bomb in your school.

The trial court denied Arnold’s motion for a mistrial based on this allegedly inflammatory and prejudicial argument.

As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. In defining the outer limits of these boundaries, our Supreme Court in Philmore v. State ruled:

It is not improper for a prosecutor to appeal to the jury to convict for the safety of the community . . . or to convict so as to send a message to others that criminal activities will not go unpunished. Moreover, the State may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.

In Philmore, the defendant was convicted of several drug-related offenses. The evidence showed that the offenses were committed in a high-drug area and that the victim and almost every testifying witness were immersed in using or selling drugs. Arguing that the jurors should not condone the illegal activities merely because they occurred under such circumstances, the prosecutor asked the jury:

What message do you send out there to the drug dealers in this community when you let drug dealers go because of that? You tell them it’s a free pass . . . you tell them they can do their business without interference, without interruption, that they can do whatever they want as long as they do it in their place. Well . . . today it’s the Original K, tomorrow it could be the courthouse, the day after that it could be our schools.

The argument at issue here conveyed a similar message: that the community needs to take seriously all threats of substantial violence against its residents and institutions. By referring to other situations, the prosecutor was merely impressing upon the jury that one who threatens to shoot a police officer must be punished and that the failure to heed his advice could have drastic consequences. While we do not condone such argument, under these circumstances, we find no abuse of the trial court’s discretion in denying Arnold’s motion for mistrial.

5. In his final enumeration of error, Arnold asserts that the trial court erred by instructing the jury that it must unanimously decide that he is not guilty of child molestation before considering whether he is guilty of the lesser included offense of public indecency. Arnold misconstrues the court’s instructions.

The record shows that during a recharge to the jury on the definitions of child molestation and public indecency, the trial court instructed the jury:

The crucial issue for you to determine in regard to the facts is whether or not the act occurred, and whether or not it occurred with an intention to arouse or satisfy the sexual desires of either the defendant or the child. If you do not find that it was done with that intent it cannot be child molestation. Then you would consider the lesser included offense of public indecency as I have defined it to you. Those are factual determinations to be made by you, and then apply the law.

According to Arnold, this instruction required the jury to render a unanimous verdict on the child molestation charge before considering the public indecency charge.

A similar charge was recently reviewed by the Supreme Court in Camphor v. State. In Camphor, the trial court instructed the jury: “Should you find the defendant not guilty of the crime of burglary, you would be authorized to consider under the evidence whether or not he did, at said time and place, commit the lesser offense of criminal trespass.” The Court distinguished this instruction from one given in Kunselman v. State, which unequivocally required the jury to render a unanimous verdict on the greater offense before considering the lesser offense. In Kunselman, the trial court committed reversible error when it instructed the jury that “ ‘if you find the defendant not guilty of burglary, you would then and only then be authorized to consider the lesser included offense of criminal trespass.’ ”

The charge at issue in this case is more akin to the charge affirmed by the Court in Camphor. Although the charge instructed the jury how to consider the evidence of each offense, it did not require the jury to unanimously find Arnold not guilty of child molestation before considering whether he was guilty of indecent exposure. Accordingly, we find no error in the court’s charge.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Decided January 24, 2001

Reconsiderations denied April 12, 2001.

Lawrence W. Daniel, for appellant.

Patrick H. Head, District Attorney, Timothy B. Lumpkin, Dana J. Norman, Assistant District Attorneys, for appellee.

        See Russell v. State, 230 Ga. App. 546, 549 (4) (497 SE2d 36) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-6-4 (a).

       See Vines v. State, 269 Ga. 438, 439-440 (499 SE2d 630) (1998).

       See Grimsley v. State, 233 Ga. App. 781, 784 (1) (505 SE2d 522) (1998) (court found evidence sufficient even though children left room when parents began having sexual intercourse in their presence).

       (Punctuation omitted.) Id. See also Blanton v. State, 191 Ga. App. 454, 455 (1), (2) (382 SE2d 133) (1989) (whether defendant had requisite intent was for the jury to determine, despite expert testimony that defendant was an exhibitionist).

       See Wilhelm v. State, 237 Ga. App. 682, 683-684 (1) (516 SE2d 545) (1999); Hathcock v. State, 214 Ga. App. 188, 190 (2) (447 SE2d 104) (1994); Blanton, supra.

        Animashaun v. State, 207 Ga. App. 156, 159 (1) (427 SE2d 532) (1993).

       See Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992); Sapp v. State, 179 Ga. App. 614, 615 (1) (347 SE2d 354) (1986).

       See Animashaun, supra at 157, 159 (evidence sufficient where defendant threatened that “ ‘the first officer that comes in will have his head broken open’ ”).

       See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990).

        Jenkins v. State, 270 Ga. 607, 608 (2) (c) (512 SE2d 269) (1999).

        Ballew v. State, 245 Ga. App. 842, 844 (1) (538 SE2d 902) (2000).

       See Jenkins, supra.

       We note initially that it is questionable whether Arnold preserved his objection for appeal. Even if we apply the rule that a motion in limine preserves an issue for appeal without a contemporaneous objection at trial, see Reno v. Reno, 249 Ga. 855 (1) (295 SE2d 94) (1982) (contemporaneous motion for mistrial not required where motion in limine was granted preserving issue for appeal); Jordan v. Johnson, 223 Ga. App. 875, 877-880 (479 SE2d 175) (1996) (Birdsong, P. J., concurring specially, joined by Blackburn, J.) (stating that it is unnecessary to object or move for mistrial where motion in limine was granted to preserve issue for appeal), “this rule cannot be invoked to preserve a different, if perhaps related, error.” Ward v. State, 238 Ga. App. 540, 542 (2) (519 SE2d 304) (1999). Here, Arnold’s motion in limine merely objected to the introduction of evidence identifying the specific charges underlying his probation and to references of a “probationary warrant.” Arnold never objected to use of the phrase “felony warrant.”

       See Shabazz v. State, 229 Ga. App. 465, 467 (2) (494 SE2d 257) (1997).

       See id.

       See Johnson v. State, 222 Ga. App. 722, 729 (11) (475 SE2d 918) (1996).

       See Peeples v. State, 234 Ga. App. 454, 457-458 (4) (507 SE2d 197) (1998).

       Because Arnold failed to object during or after closing arguments to one of the statements he relies on here, we will not review the propriety of that statement in this appeal. See Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996).

        See Allen v. State, 210 Ga. App. 447, 450 (4) (436 SE2d 559) (1993).

       263 Ga. 67 (428 SE2d 329) (1993).

       (Citations and punctuation omitted.) Id. at 69 (3).

       Id.

       272 Ga. 408, 414-415 (6) (d) (529 SE2d 121) (2000).

       Id. at 414.

       232 Ga. App. 323, 324 (1) (501 SE2d 834) (1998).

       (Emphasis in original.) Camphor, supra at 415 (quoting Kunselman, supra at 324).

       See id.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A2463.
    DUKE et al. v. BUICE.
    (547 SE2d 561)
   Phipps, Judge.

Harold and Claudia Duke sued Tina Buice for damages arising out of an automobile collision. The trial court granted Buice’s motion to dismiss the action for failure of the Dukes to timely serve Buice. On appeal, the Dukes contend that Buice waived the defense of insufficient service of process by failing to present it in her answer and that notorious service of process was effectively performed upon Buice. We find that Buice adequately raised the issue of insufficient service of process in her answer and that the trial court did not abuse its discretion in finding that Buice was not effectively served. Thus, we affirm the judgment of the trial court.

The automobile collision occurred on March 29, 1995. On March 12, 1997, the Dukes filed their complaint in Henry County Superior Court. On March 15, the sheriff returned service indicating that a copy of the complaint and a summons were left for Buice with her stepfather at her most notorious place of abode — 505 Ivy Edwards Lane, McDonough.

On April 19, Buice filed her “Answer and Defensive Pleadings.” She stated therein that her appearance was “subject to all special defenses . . . set forth and without in any manner submitting or subjecting to the jurisdiction of [the] court.” Buice asserted as an affirmative defense “insufficiency of process.” In response to the allegations of the complaint, she “denie[d] that she may be served with a copy of the Complaint at 505 Ivey Edward Lane, McDonough, Georgia. . . .” The Dukes made no farther attempt to serve Buice, and on November 24, 1999, Buice filed her motion to dismiss.

The Dukes contend that Buice’s answer failed to put them on notice that she was asserting the defense of insufficiency of service of process. They emphasize that while Buice’s answer stated that she could not be served at 505 Ivey Edward Lane, her enumerated defenses included insufficiency of process and not insufficiency of service of process.

Insufficiency of process and insufficiency of service of process refer to different matters and are separate defenses under OCGA § 9-11-12 (b). But under Georgia’s rules of notice pleading, pleadings are liberally construed “to serve the best interests of the pleader.” “Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end.” “[I]t is substance and not mere nomenclature that controls [cits.]; pleadings are judged by their function and not the name given by a party. [Cit.]”

In Manning v. Robertson, this court held that the trial court erred in ruling that cross-claims had not been asserted in the defendants’ answer when the substance of the claims had been presented within a section of the answer entitled “affirmative defenses.”

And in Crawford v. Randle, we held that the trial court erred in finding that the defendant had not asserted the defenses of lack of venue and jurisdiction when, in her answer, she admitted the county of her residency but denied that she was subject to the jurisdiction of the court.

In this case, the substance of Buice’s answer was sufficient to put the Dukes on notice that she was asserting insufficient service of process among her defenses. Contrary to the Dukes’ argument, we find this construction to be one which effectuates the true intent of the pleading and which does “substantial justice.”

Next, we consider whether the trial court erred in determining that the statutory requirements for notorious service of process were not fulfilled. A defendant challenging the sufficiency of service bears the burden of establishing that the service was insufficient. A sheriff’s return of service “can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.”

OCGA § 9-11-4 (e) (7) provides that defendants may be served by “leaving copies [of the summons and complaint] at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” The issue here is whether 505 Ivey Edward Lane was Buice’s usual place of abode.

Absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed. [Cit.] When the evidence is conflicting with respect to the proper receipt of service, as here, it becomes a question of fact to be resolved by the trial judge. [Cit.] . . . Those findings will not be disturbed on appellate review when supported by any evidence. [Cit.]

Although the evidence was conflicting, the record contains support for the trial court’s determination that 505 Ivey Edward Lane was not Buice’s usual place of abode in March 1997. Through her affidavit and testimony at the motion hearing, Buice asserted that 505 Ivey Edward Lane was her mother’s home, that she began living with her father in 1995, and that in March 1997 she was living with friends in an apartment. The record also contains an affidavit from Buice’s stepfather averring that he told the officer who served the documents that Buice did not live there but that sometimes she stayed there.

The Dukes argue that this case is controlled by Cushman v. Raiford, where this court held that the defendant (Raiford) had failed to carry his burden of establishing improper service by clear and convincing evidence. Raiford provided affidavits and testimony indicating that he no longer lived at his father’s address, where process had been left for him. But the following evidence indicated that Raiford did in fact still reside at his father’s house: (1) in response to the plaintiff’s first interrogatories, Raiford listed his father’s address as his address; (2) for the two calendar years before he was served, he listed his father’s address as his address on both his state and federal income tax forms; (3) he had that address printed on his personal checks even after the time by which he claimed to have moved to another city; (4) he continued to receive mail at his father’s address; (5) for more than a year after the date he was served, his driver’s license continued to show his address as his father’s address; (6) he had not asserted insufficiency of service of process in a preceding action, although his interrogatory responses and deposition testimony indicated that he was living with his grandmother at the time he was served in the earlier action; (7) he previously had moved out of his parents’ home temporarily and moved back in; and (8) he admitted that even after the time he claimed he had moved out of his father’s home with no intention of returning either temporarily or permanently, he still occasionally spent the night there.

In arguing the similarity of this case to Cushman, the Dukes emphasize that Buice continued to receive mail at her mother’s home, that her driver’s license continued to show her mother’s address after the time by which Buice asserted she had moved from her mother’s residence, and that she listed her mother’s address and telephone number on the statement she gave at the accident scene. The Dukes bolster their argument with testimony from Buice at the hearing on her motion to dismiss where she stated that her mother’s home was her home, that she could always be reached there, and that she always gave her mother’s address.

But Buice’s words have to be considered in context to judge the appropriate weight to give them. Buice was asked why she had not changed the address on her driver’s license after the time by which she claimed to have moved and why she had given the officer her mother’s address when the accident occurred in March 1995. In her responses, she clearly did not intend to convey that she continued to live with her mother in March 1997, when service was attempted. The import of her words in both instances was that she had been living with her father but that because her father moved a lot she considered her mother’s address to be more stable for receiving important communications. Given this background, Buice’s contention that in March 1997 her usual place of abode was somewhere other than her mother’s home is not defeated by the mere fact that she continued to receive mail at her mother’s home or that her driver’s license still showed her mother’s address. Moreover, the significance of Buice giving her mother’s address at the accident scene in March 1995 is limited, given that she does not claim to have moved from her mother’s house until 1995.

This case lacks much of the evidence that was present in Cushman. Buice did not indicate in interrogatories or depositions that she resided at her mother’s home in March 1997; she did not list her mother’s address as her address on her income tax returns; she did not list her mother’s address on her personal checks after the time she claimed she no longer lived there; she had not implicitly conceded that she lived at her mother’s home in March 1997 by failing to assert the defense of insufficiency of service of process in a related action; and she did not draw into question the credibility of her statements by unequivocally stating she had moved from her mother’s home with no intention of ever returning, even temporarily, and then later admitting that she did in fact occasionally spend the night at her mother’s home after the time by which she claimed she had moved.

Decided February 8, 2001

Reconsideration denied April 12,2001

William D. Patten, Jr., William R. L. Latson, Martin C. Jones, for appellants.

Husser & Frazier, Genevieve L. Frazier, Swift, Currie, McGhee & Hiers, Timothy C. Lemke, for appellee.

Unlike in Cushman, there is no evidence in this case which really undermines the statements of Buice and her stepfather that Buice did not live at her mother’s address in March 1997. Moreover, given the credibility determinations which necessarily have to be left to the trial judge in matters such as this, the trial court could have properly reached a conclusion in this case that the evidence clearly and convincingly established that Buice did not live at her mother’s home in March 1997. Therefore, we find that the trial court did not abuse its discretion in dismissing the complaint against Buice for insufficiency of service of process.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

       Although the trial court did not make specific findings of fact in its order granting Buice’s motion, the Dukes concede the trial court necessarily concluded that service upon Buice was insufficient.

       The spelling of the street name in Buice’s answer is different from that in the summons.

       See generally White v. Johnson, 151 Ga. App. 345, 348 (1) (259 SE2d 731) (1979) (where action initiated by filing of affidavit, defense of insufficiency of process referred to defect in affidavit or summons); OCGA § 9-11-12 (b) (4), (5).

       (Citation and punctuation omitted.) Bosworth v. Cooney, 156 Ga. App. 274, 278 (2) (274 SE2d 604) (1980).

       (Citations and punctuation omitted.) Id.

        Manning v. Robertson, 223 Ga. App. 139, 142 (2) (476 SE2d 889) (1996).

       Id.

       191 Ga. App. 112, 113-114 (1) (381 SE2d 77) (1989).

       See McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 678 (2) (504 SE2d 747) (1998).

        Cushman v. Raiford, 221 Ga. App. 785, 787 (472 SE2d 554) (1996).

       (Citations and punctuation omitted.) Id.

        Franchell v. Clark, 241 Ga. App. 128, 131 (3) (524 SE2d 512) (1999).

       221 Ga. App. 785.

       The plaintiff voluntarily dismissed his original action against Raiford and later refiled suit against him.

       221 Ga. App. at 786-787.

       See Franchell, 241 Ga. App. at 131 (3).


author: Miller, Judge. Pope, Presiding Judge,

text:
    A00A2482.
    GOBER v. THE STATE.
    (547 SE2d 656)
   Miller, Judge.

Jerry Thomas Gober appeals following his conviction on one count of unlawful possession of methamphetamine. We affirm.

An undercover Gwinnett County police detective arranged, through a confidential informant, to meet with Gober on the evening of August 30, 1999. The pair met in a shopping center parking lot in Buford where, as prearranged, Gober purchased one ounce of methamphetamine from the officer for $1,000. After paying the officer and taking possession of the drugs, Gober was arrested. The entire reverse sting operation was videotaped, and the tape was shown to the jury.

At trial, Gober admitted that he was a methamphetamine addict, which had contributed to his 1995 divorce. But he said that he had to take random drug tests in order to be able to see his children and that he had not missed a visit. Gober raised an entrapment defense, testifying that he had purchased the methamphetamine only at the prodding of his girlfriend, who was also the State’s confidential informant.

Following his conviction, Gober was given a six-year sentence, with thirty days to serve in prison, followed by twenty-three months of house arrest and the remainder on probation.

In several related enumerations of error, Gober contends that the court erred in allowing the jury to convict him based on his purchase of methamphetamine that the Gwinnett County police had obtained from their evidence safe. He argues that under OCGA § 16-13-49 (u) (1) the police should have destroyed this methamphetamine and should not be allowed to use it in reverse sting operations. His argument is based on the evidence being summarily forfeited to the State under OCGA § 16-13-49 (y) inasmuch as the owners of the methamphetamine are unknown. He made this same argument in a writ of mandamus action in Dean v. Gober, in which the Supreme Court agreed that the Gwinnett County police should have destroyed its methamphetamine but that it would not require the police to destroy the particular methamphetamine used regarding Gober. The Court reasoned that it was now evidence in a case and thus exempt from destruction under the language of OCGA § 16-13-49 (u) (l).

The question before us is whether we should reverse Gober’s conviction based on the police using a drug in a reverse sting operation that the police should have earlier destroyed. We hold that the police conduct was not so outrageous as to constitute a violation of Gober’s due process rights.

Dean v. Gober makes it clear that the only “misconduct” of the Gwinnett police here was the failure to maintain accurate records. Such “misconduct” does not rise to the level of outrageousness such that a reversal of the conviction is required. In this regard, over the years similar reverse sting operations using drugs held by the police from previous criminal investigations have resulted in hundreds if not thousands of convictions, many of which would become challenge-able if proper records cannot be found. This result is neither necessary nor appropriate.

1. Dean v. Gober is controlling. The Supreme Court concludes its opinion by stating that reverse sting operations using illegal drugs are authorized under Georgia law:

Since law enforcement officers are authorized by OCGA § 16-13-35 (c) (4) to possess controlled substances while acting in the course of their official duties, there is no prohibition in the Controlled Substances Act against the retention and legal use of seized controlled substances not listed in Schedule I so long as the owner of the drug is known and forfeiture proceedings have not been commenced. [Under the language of OCGA § 16-13-49 (y), they are therefore not summarily forfeited and subject to mandatory destruction under OCGA § 16-13-49 (u) (1).] Thus, Gober’s attempt to procure a ruling that reverse stings cannot be used because the drugs used in those operations cannot legally be maintained by law enforcement officers must fail.

Thus, there is nothing wrong with police, who have possession of illegal drugs from prior investigations, using those drugs in reverse sting operations, so long as the owner of the drug is known and forfeiture proceedings have not been commenced. Here no forfeiture proceedings have been commenced. Rather, because of poor record-keeping, the Gwinnett County Police Department could not identify the owner of the methamphetamine used here in this reverse sting operation involving Gober. The moral of the story is that police departments in possession of illegal drugs from prior investigations must maintain careful records as to the owners (i.e., the origin and custody) of those drugs; otherwise, they are summarily forfeited and must be destroyed. If proper procedure is followed in record-keeping (which implies proper controls), then the police are free to use those drugs in law enforcement efforts.

The special concurrence would reach a contrary result. The special concurrence concludes that the State may never use drugs from a previous investigation to conduct a reverse sting operation. Apparently, the State would be required to expend taxpayer money to purchase the drugs from a legally registered manufacturer, if there is such. It is absurd to require the State to destroy confiscated drugs, legally held by police, and then simultaneously to spend taxpayer money to buy the same drugs they just destroyed for use in a valid law enforcement technique. We do not believe such is required, and the history of Georgia law enforcement does not support such a conclusion.

2. This brings us to the overriding question — whether the police’s use of the methamphetamine here in a commonly conducted reverse sting operation constitutes police misconduct so outrageous that due process was violated requiring this conviction (and countless others) to be reversed. We hold it does not.

To violate due process, the State’s misconduct must be so extreme that it caused demonstrable prejudice to the defendant’s recognized constitutional or statutory rights or was so outrageous that it was fundamentally unfair and shocking to the universal sense of justice mandated by constitution or statute so as to deprive the defendant of a fair trial as a matter of law. “Absent demonstrable prejudice, a finding that such misconduct was so outrageous as to demand dismissal of the indictment! ] would occur only in the rarest of cases.”

One such example of misconduct would be forcing the defendant at gunpoint to set up and operate an illegal drug lab, which obviously would prejudice the defendant. An example of what does not constitute outrageous conduct is trespassing on defendant’s land that is posted “No Trespassing” and finding illegal drugs in an open field, which drugs are used in convicting the defendant. A second example is repeated efforts by an informant, acting at the behest of investigating officers, to encourage a corrupt officer to arrest a drug dealer so that the corrupt officer would illegally compensate the informant with confiscated funds. A third example is a reverse sting operation involving the sale of illegal drugs by police officers. Such do not constitute a violation of due process.

The police’s failure to maintain careful records of the ownership of the methamphetamine here did not unfairly prejudice Gober. The source of the methamphetamine played no role in the conviction; it was Gober’s unauthorized purchase of that controlled substance that convicted him. The State’s failure to maintain accurate records as to the origin of the controlled substance certainly did not affect whether Gober knowingly purchased contraband which he was neither licensed nor authorized to possess. Even though the police were obligated to destroy the drug as a result of their poor record-keeping, their failure to do so is not, in our view, so outrageous as to violate fundamental fairness or to shock the universal sense of justice.

Recall that Rochin v. California was cited by the United States v. Russell court as authority for the proposition that the conduct of law enforcement agents can be so outrageous that due process would absolutely bar a prosecution. In Rochin, police made a warrantless entry into a home and forced their way into Rochin’s bedroom. Rochin immediately swallowed two capsules from a nightstand, whereupon he was handcuffed, taken to a hospital, force-fed an emetic, and intubated to have his stomach pumped. The two morphine tablets he vomited formed the basis of his conviction for possession of narcotics.

Here, the police’s conduct in failing to maintain records does not even come close to this set of facts. It certainly did not violate Gober’s fundamental due process rights, whether asserted under the Georgia or federal constitution.

Nevertheless, we do not wish to promote law enforcement’s collection and storage of excessive amounts of illegal drugs. The better practice would be to create a strict procedure governing the retention of illegal drugs from prior investigations, which procedure would set forth the amount of drugs that may be retained and the length of time they may be retained. Also, there should be strict controls on the use of these drugs in law enforcement operations such as the reverse sting operation here. For this reason, we invite and encourage the legislature to develop such guidelines.

3. Gober also contends that the trial court improperly abridged his right to cross-examine Georgia Bureau of Investigation crime lab expert Terry Mills. When Gober’s attorney asked Mills if he was familiar with the requirements of Georgia law regarding the destruction of contraband, the State objected on the ground of relevance, and the trial court sustained the objection. Gober’s counsel made no exception to this ruling, but merely responded, “Okay.”

The admission or exclusion of evidence that is objected to on the ground of relevance rests in the sound discretion of the trial court whose decisions will not ordinarily be disturbed on appeal absent an abuse of that discretion. And to preserve the right to complain about a ruling limiting cross-examination, a party “must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying [him] the right to propound the questions.” Because Gober failed to follow this procedure, he has waived his right to object to the ruling on appeal.

4. In addition, Gober argues that it was error for the trial court to refuse to allow him to argue to the jury that the Gwinnett County Police Department’s methods and procedures were unlawful as it relates to the issue of entrapment.

We note initially that Gober has failed to identify any particular ruling of the trial court that he claims prevented him from fully presenting his entrapment defense. Nevertheless, as we held in Division 1, it was not illegal for the police to conduct the reverse sting in this case and thus it would not be error for the trial court to disallow any such argument. Moreover, we note Gober presented both evidence and argument in support of his entrapment defense. And the trial court charged the jury on the issue. Therefore, we are unable to identify any error by the trial court on this ground.

5. Gober further contends that the trial court erred when it failed to allow jury charges on the illegality of the police conduct. This argument appears to relate to 20 of Gober’s requests to charge, but he fails to provide any specific argument as to why any of these charges should have been given. Instead, he argues generally that it is error for a trial court to fail to charge the jury on applicable principles of law.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” Based upon our review of the charge as a whole and the requests to charge, we find that the trial court adequately instructed the jury on the law applicable to the issues in the case.

6. Gober also asserts that the trial court erred in admitting videotapes showing his arrest and his statement to police because the tapes contained extraneous matter, gaps, and conversation by individuals who cannot be seen on the tape. In particular, Gober argues that undue prejudice resulted from the admission of evidence showing that he was in lawful possession of a gun at the time of his arrest.

Generally, all the circumstances connected with a defendant’s arrest are admissible as part of the res gestae. And relevant evidence will not be excluded merely because it incidentally shows the commission of another crime, puts the defendant’s character at issue, or is prejudicial, where that evidence is admitted for the purpose of showing the circumstances of the arrest. Here, the evidence showed that Gober was in lawful possession of a gun at the time of his arrest. Even assuming this evidence incidentally placed Gober’s character at issue, it was admissible as part of the res gestae, and no harmful error occurred.

Moreover, Gober has failed to identify any other specific evidence from the tapes that he contends was irrelevant and has failed to show how any such evidence was prejudicial to him. Accordingly, we find no error by the trial court in admitting the tapes.

7. Gober further enumerates as error the denial of his motion for mistrial following the arresting officer’s statement that most people who purchase an ounce of methamphetamine generally break it up and use it for trafficking.

Gober failed to preserve this issue for appeal when he failed to renew his motion for mistrial after the trial court denied the motion but gave curative instructions to disregard this testimony. “It is a longstanding rule in Georgia that in order to preserve the issue for appellate review after curative instructions are given the motion for mistrial must be renewed.”

8. Gober next argues that the State’s expert’s identification of the methamphetamine on redirect was inadmissible because it was beyond the scope of the direct examination.

On direct, Mills from the GBI crime lab was qualified as “an expert in drug analysis and particularly narcotics and methamphetamine.” In response to the prosecutor’s questioning, Mills described the tests he had run on the drugs at issue and stated his conclusion that the material was methamphetamine.

On redirect, the prosecutor sought permission to ask a question she had omitted on direct. She had failed to ask Mills’s expert opinion as to the identity of the drugs. The trial court allowed the question over Gober’s objection.

We find no error as the trial court did not grossly abuse its discretion in allowing the State to ask such a relevant and inadvertently omitted question on redirect.

9. Gober enumerates the admission of his prior conviction for possession of marijuana. After Gober testified he had not done any drugs or smoked any marijuana since 1995, the State was permitted to introduce his subsequent guilty plea under the First Offender Act. In May 1997, Gober was stopped by Gwinnett County police at a roadblock. The officer who stopped Gober testified that as he motioned for Gober to stop, he noticed Gober reaching down between the seats of the car. When Gober rolled down his window, the officer smelled an odor of burnt marijuana, “as if he had just used it or had been in his vehicle or left a location where it had been used.” Gober denied smoking any marijuana. The officer subsequently found a bag of marijuana in the place Gober had been reaching. Gober was charged with driving with an expired license and possession of less than an ounce of marijuana. He later pled guilty under the First Offender Act.

Where, as here, a defendant testifies he has committed a crime and states that this is his only criminal record, his testimony is subject to rebuttal by proof of other crimes he has committed.

Moreover, similar transaction evidence may be admitted to rebut the defense of entrapment, insofar as the evidence proves the falsity of specific testimony of the defendant regarding his lack of predisposition to commit the crime. In Beauchene v. State, this Court found no error in the introduction of a prior conversation with defendant about the sale of cocaine where defendant testified he had never sold drugs except when entrapped by authorities. Similarly, under the circumstances of this case, it was not error for the trial court to admit evidence of Gober’s prior guilty plea to possession of marijuana in 1997, as this proves the falsity of his specific testimony that he had not used drugs since 1995.

Judgment affirmed.

Blackburn, C. J., Andrews, P. J., Ruffin, Ellington and Mikell, JJ., concur. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I fully concur with Divisions 3 through 9 of the majority opinion.

With regard to Divisions 1 and 2,1 agree with the majority’s conclusion that the police conduct in this case was not so outrageous as to constitute a due process violation. I write separately, however, to express my concern over the use by police of illegally held drugs in reverse sting operations.

As an initial matter, I do not believe that the Supreme Court of Georgia’s decision in the related matter of Dean v. Gober, 272 Ga. 20 (524 SE2d 722) (2000), approved the Gwinnett County Police Depart-merit’s use of the methamphetamine in this case. Gober asserted essentially the same argument in his mandamus action that he asserts in this case: that the police did not legally possess the methamphetamine used in his reverse sting. “The legal basis Gober asserted for his petition was the requirement in OCGA § 16-13-49 (u) (1) that any forfeited contraband that is dangerous to the public be destroyed or sent to an appropriate agency for medical or scientific use.” Id. at 20.

The Supreme Court implicitly upheld the trial court’s grant of mandamus requiring the Gwinnett County Police Department to destroy all the contraband in its drug safe. Noting that the evidence established that the owners of the drugs held in the safe could not be determined, the Supreme Court found that the drugs had been summarily forfeited pursuant to OCGA § 16-13-49 (y), which provides that “[Controlled substances . . . whose owners are unknown are summarily forfeited to the state.” And the court concluded that “their destruction was mandated by OCGA § 16-13-49 (u) (1).” Gober, 272 Ga. at 22 (1).

Nevertheless, the court applied an exception to this mandatory destruction rule to the methamphetamine used in Gober’s case. Gober, 272 Ga. at 23 (3). The Supreme Court held that those drugs were specifically exempted from destruction under “the very statutory provision on which [Gober’s] mandamus action was premised.” Id. OCGA § 16-13-49 (u) (1) exempts contraband that is still “ ‘needed for evidentiary purposes.’ ” Id. Gober had already been convicted at the time of the mandamus ruling. But because his conviction was subject to appeal, the Supreme Court found that the drugs might still be needed for evidentiary purposes in the event of a new trial. The court concluded that those particular drugs were, therefore, exempted from destruction. Id.

But that holding does not resolve the question at issue here. While I agree with the majority that the Supreme Court held in Gober that “there is no prohibition in the Controlled Substances Act against the retention and legal use of seized controlled substances . . . while acting in the course of their official duties, ... so long as the owner of the drug is known and forfeiture proceedings have not been commenced,”1 disagree that this holding answers the question before us now.

The majority appears to discount the further finding of the Goher court that the owner of the drugs in this case was unknown and thus that the drugs fell into one of the two categories of drugs subject to summary forfeiture. Instead, the majority relies upon qualifying language that the reason the owner of the drugs in this case was unknown was “primarily because the state of the records maintained by the department rendered [them] unknown.” Gober, 272 Ga. at 24 (4). But the Supreme Court did not hold that the Gwinnett County Police Department’s sloppy record-keeping somehow removed the drugs at issue from the category of contraband subject to forfeiture.

To the contrary, the court agreed that the drugs in the Gwinnett County safe were subject to summary forfeiture and their destruction “mandated.” Gober, 272 Ga. at 22 (1). It carved out an exception for the specific methamphetamine in this case only to preserve it for evidentiary purposes pending an appellate ruling in the criminal case. But contrary to the majority’s apparent assumption, the Supreme Court in its mandamus case never addressed the issue of whether methamphetamine that is subject to summary forfeiture and mandated destruction can legally be used in a reverse sting operation. That is the issue before us now.

In addressing that issue, I am bound by the finding in the Gober decision that the drugs held in the Gwinnett police safe were subject to mandatory destruction. It follows, therefore, that the methamphetamine in this case should have been destroyed before it was used in the reverse sting against Gober.

An examination of the purposes behind the forfeiture statute confirms this conclusion. That statute was passed, in part, to provide for “the prompt disposition of property subject to forfeiture under the statute.” (Citations and punctuation omitted.) Yoder v. State, 211 Ga. App. 226, 228 (438 SE2d 689) (1993). And although the statute sets forth detailed procedures to be followed with regard to the disposition of most kinds of property, its treatment of illegal and dangerous drugs is markedly different. Schedule I drugs and drugs whose owner is unknown are to be summarily forfeited and destroyed. Gober, 272 Ga. 20. This is because, as the statute provides, such drugs are deemed harmful to the public. OCGA § 16-13-49 (u) (1). This statutory scheme underlines the legislature’s strong policy of ridding the state of illegal drugs.

Decided March 30, 2001

Reconsideration denied April 12, 2001

Peevy & Lancaster, Gregory W. Lancaster, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.

And nothing in the statute authorizes the police to maintain and use such drugs in reverse sting operations. While the statute provides that these drugs must be preserved if they are needed as evidence in a criminal proceeding, it does not provide that the drugs can then be recycled to create new criminal proceedings. And although the statute does authorize the use of the drugs for certain limited purposes — scientific and medical — it makes no similar provision for their use in crime prevention. Under the rule of statutory construction inclusio unius exclusio alterius (inclusion of one implies exclusion of others), I conclude that the legislature did not consider reverse stings, or any other crime prevention techniques, to be a legitimate use of such illegal substances. See Blackwell v. State, 237 Ga. App. 896, 897 (516 SE2d 787) (1999).

Therefore, I believe that the police in this state should not retain possession of drugs subject to the mandatory destruction requirements of OCGA § 16-13-49 (u) (1). After the drugs’ evidentiary use is exhausted for the case in which they were seized, they should be destroyed and should not be used to manufacture future prosecutions, unless and until the General Assembly authorizes their use in such a fashion.

       272 Ga. 20 (524 SE2d 722) (2000).

       Id. at 23 (3).

       Id. at 23-24 (4).

       Id.

       (Emphasis supplied.) Id. at 24-25 (4).

        McGarvey v. State, 186 Ga. App. 562, 564 (2) (368 SE2d 127) (1988).

       (Emphasis supplied.) Id.

       See Strobhert v. State, 184 Ga. App. 615, 617 (1) (362 SE2d 99) (1987).

        LoGiudice v. State, 251 Ga. 711, 721 (309 SE2d 355) (1983) (Smith, J., dissenting).

        City of Atlanta Govt. v. Smith, 228 Ga. App. 864, 867 (3) (493 SE2d 51) (1997) (whole court).

        Givens v. State, 211 Ga. App. 290, 291-292 (2) (439 SE2d 22) (1993), rev’d on other grounds, 264 Ga. 522 (448 SE2d 687) (1994).

       See United States v. Russell, 411 U. S. 423, 432 (93 SC 1637, 36 LE2d 366) (1973).

       342 U. S. 165 (72 SC 205, 96 LE 183) (1952).

       411 U. S. 431-432.

       See Ga. Const, of 1983, Art. I, Sec. I, Par. I.

        Harden v. State, 239 Ga. App. 700, 702 (4) (521 SE2d 829) (1999).

       (Citations and punctuation omitted.) Daniels v. State, 235 Ga. App. 296, 297 (1) (509 SE2d 368) (1998). See also Morris v. State, 239 Ga. App. 100,103 (4) (520 SE2d 485) (1999).

       See Givens, 211 Ga. App. at 292 (2).

       Although Gober also attempts to tie this general argument to an enumeration asserting that the trial court erred in failing to consistently charge the jury that entrapment can occur “by the conduct of a government officer, employee or agent,” he fails to provide any argument to support this enumeration, and it is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2).

       (Punctuation omitted.) Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992).

        Anderson v. State, 236 Ga. App. 679, 682 (4) (513 SE2d 235) (1999).

       Id.; Hutson v. State, 216 Ga. App. 100, 101-102 (5) (453 SE2d 130) (1995).

        Williams v. State, 202 Ga. App. 485, 486 (2) (414 SE2d 712) (1992).

       (Punctuation omitted.) Wells v. State, 243 Ga. App. 629, 631 (3) (534 SE2d 106) (2000).

       See Mincey v. State, 251 Ga. 255, 267-268 (15) (304 SE2d 882) (1983); Owens v. State, 205 Ga. App. 824, 825 (2) (423 SE2d 731) (1992).

        Jones v. State, 257 Ga. 757, 759 (1) (b) (363 SE2d 529) (1988).

        Beauchene v. State, 194 Ga. App. 222, 223 (2) (a) (390 SE2d 116) (1990).

       Id. See also Haralson v. State, 223 Ga. App. 787, 793 (7) (479 SE2d 115) (1996) (whole court) (evidence of defendant’s prior drug use admitted to rebut entrapment defense).

       OCGA § 16-13-49 (u) (1) provides:
      Whenever property is forfeited under this article, any property which is required by law to be destroyed or which is harmful to the public shall, when no longer needed for evidentiary purposes, be destroyed or forwarded to the Division of Forensic Sciences of the Georgia Bureau of Investigation or any other agency of state or local government for destruction or for any medical or scientific use not prohibited under the laws of the United States or this state.

       OCGA § 16-13-49 (y) reads:
      Controlled substances included in Schedule I which are contraband and any controlled substance whose owners are unknown are summarily forfeited to the state. The court may include in any judgment of conviction under this article an order forfeiting any controlled substance involved in the offense to the extent of the defendant’s interest.

       (Emphasis supplied.) Gober, 272 Ga. at 25 (4).

       Thus, I would not, as the majority asserts, hold that the police could never use seized contraband in a reverse sting operation. I acknowledge that the Supreme Court has upheld the use of a limited class of drugs in reverse stings, but the drugs in this case do not fall within that approved class.


text:
    A00A2037.
    A00A2038.
    GIRALDO v. THE STATE. BRUTUS v. THE STATE.
    (547 SE2d 651)
   Miller, Judge.

Giraldo and Brutus were indicted for trafficking in cocaine (more than 400 grams) and possessing cocaine with intent to distribute, arising out of a “reverse sting” operation. The issue in this case is whether the court erred in not dismissing the indictments or suppressing the contraband where the cocaine used for the reverse sting operation came from the State crime laboratory where records were kept of its origin and owners.

Giraldo and Brutus do not argue that the reverse sting operation itself violated their rights. Rather, in eight separate enumerations, they contend that the cocaine used in the operation was illegal because it should have been earlier destroyed pursuant to OCGA § 16-13-49 (y) and (u) (1). They rely upon the recent case of Dean v. Gober, a civil mandamus action, which held that where no forfeiture proceeding has been commenced against them, non-Schedule I controlled substances without a known owner are summarily forfeited to the State and must be destroyed. Accordingly, Giraldo and Brutus contend that their indictments should be dismissed and/or all evidence of cocaine suppressed because use of the illegally stockpiled cocaine constitutes outrageous government conduct.

At the hearing on the motion, Terry Mills, a deputy director with the Georgia Bureau of Investigation (GBI), testified that the State crime laboratory maintains a supply of contraband that it loans out to law enforcement agencies, both federal and state, for reverse sting operations. The powder cocaine maintained by the lab comes from two cases dating from 1982 and 1985. In each case, approximately 1,000 kilograms of cocaine had been thrown from an airplane.

Mills testified that when this cocaine was no longer needed for evidentiary purposes in connection with the cases against the pilots, the laboratory kept it for future use in reverse stings. The laboratory has verified that these substances are cocaine. Law enforcement authorities may borrow cocaine from the laboratory for use in reverse stings. If the operation leads to criminal prosecution, the cocaine is returned to the laboratory, assigned a case number, and reanalyzed to verify what the substance is. An official report on the identity of the substance is then prepared, and the cocaine becomes evidence for use in the case.

In 1999, the laboratory loaned three kilograms of cocaine from this supply to the DeKalb County Drug Task Force for use in a reverse sting. Both Giraldo and Brutus were arrested in the operation. The cocaine was returned and assigned a case number, and an official report was prepared.

The trial court examined the testimony presented at the hearing and concluded that there was sufficient evidence to meet the requirements under Dean v. Gober that “the owner of the drug [be] known” and that forfeiture proceedings had not been commenced against those drugs. Therefore, the court concluded, the State crime lab was lawfully in possession of the cocaine used in the reverse sting operation against Giraldo and Brutus.

We hold the court did not err in refusing to dismiss the indictments or to suppress the contraband based on such evidence. First, since the State maintained records and showed the trial court who owned the cocaine used in the reverse sting operation, the cocaine was not summarily forfeited to the State and thus the State was not immediately required to destroy same. Second, even if the State were required to destroy the cocaine, the State’s conduct here in failing to meet this obligation and in using the cocaine in a common reverse sting operation does not rise to the level of outrageous conduct that violated fundamental notions of due process and that prejudiced the defendants. Regardless of where the State obtained the cocaine, defendants were not authorized to purchase same.

1. Although the provision in the forfeiture statute requiring destruction of the cocaine was not enacted until 1991, it applies to the cocaine acquired by the crime lab in 1982 and 1985.

OCGA § 16-13-49 is part of the Georgia Controlled Substances Act, which was enacted in 1974, but section 49 was rewritten in 1991 and made effective on July 1 of that year. The subsection requiring destruction of certain property was not a part of the earlier version. But the revised Code section states that it applies to property recovered prior to the effective date if “such property was subject to forfeiture under the laws of this state at the time such act or omission occurred.” Under former Code Ann. § 79A-828 (now OCGA § 16-13-49), the following were subject to forfeiture: “All controlled substances and marijuana which have been manufactured, distributed, dispensed, held, or acquired in violation of this article.” And the GBI director testified that the contraband acquired in both the 1982 and 1985 cases is “for lack of a better term, boat cocaine; in other words, cocaine that’s been manufactured and prepared down in Colombia and smuggled into the U. S.” It follows that the cocaine was subject to forfeiture under the earlier version of the statute and that, therefore, the revised statute applies to the 1982 and 1985 airplane cocaine.

2. The cocaine was not summarily forfeited to the State under OCGA § 16-13-49 (y) and therefore was not subject to immediate destruction. Dean v. Gober expressly held that so long as the police keep records of the ownership of non-Schedule I drugs confiscated in previous investigations and so long as forfeiture proceedings have not been commenced, police are authorized to retain the drugs and to use them in reverse sting operations. Here no forfeiture proceedings had been commenced, and the State maintained records showing the origin of the cocaine (a Schedule II drug ) held by the State crime lab. The State presented this evidence of record-keeping to the trial court, which, based on the evidence, found as fact that the State had shown the owner of the cocaine. As there was some evidence to support this finding, we will not disturb it. Therefore, the State was fully authorized to use these drugs in this particular reverse sting operation.

The special concurrence reads OCGA § 16-13-49 to conclude, contrary to Dean v. Gober, that the State can never retain illegal drugs for reverse sting operations because no one can ever “own” these drugs. As explained in Dean v. Gober, the obligation of the State is simply to maintain accurate records as to the origin of the drugs; an esoteric analysis interpreting away the ability of anyone to “own” these drugs simply misses the mark, since law enforcement officers are authorized by OCGA § 16-13-35 (c) (4) to possess controlled substances while acting in the scope of their official duties.

3. Even if the State were obligated to destroy the cocaine at issue, the State’s failure to do so does not violate any fundamental notions of due process such that a dismissal of the indictments or a suppression of this contraband would be required. As explained in Gober v. State, such sins of omission by the police come nowhere near the affirmative outrageous conduct that must be shown to constitute a violation of due process requiring a bar to prosecution or justifying a dismissal of these indictments or a suppression of this contraband. The origin of the drugs would in no way undermine a finding that these defendants, without legal authorization, knowingly purchased or possessed the cocaine.

Nevertheless, we do not wish to promote law enforcement’s collection and storage of excessive amounts of illegal drugs. The better practice would be to create a strict procedure governing the retention of illegal drugs from prior investigations, which procedure would set forth the amount of drugs that may be retained and the length of time they may be retained. Also, there should be strict controls on the use of these drugs in law enforcement operations such as the reverse sting operation here. For this reason, we invite and encourage the legislature to develop such guidelines.

Judgments affirmed.

Blackburn, C. J, Andrews, P. J., Ruffin, Ellington and Mikell, JJ., concur. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

Although I concede that the improper use of drugs that should have been destroyed does not rise to the level of outrageous conduct as described in the case law, the forfeiture statute clearly required destruction of the cocaine used against Giraldo and Brutus long before it was used against them in a reverse sting. And, I cannot condone use of such drugs under the circumstances. If the legislature intended to allow the practice, it should revise the statute to make it clear. See Gober v. State, 249 Ga. App. 168 (547 SE2d 656) (2001) (Pope, P. J., concurring specially). Also, I write separately to address two other matters.

First, Dean v. Gober, 272 Ga. 20 (524 SE2d 722) (2000), did not, as claimed by the majority, hold that so long as the police keep ownership records for confiscated non-Schedule I controlled substances, they are authorized to use them in reverse stings. Rather, it held that those substances can be used if they have a known owner, but controlled substances whose owners are unknown are summarily forfeited and must be destroyed. Certainly it follows that the failure to keep ownership records would preclude showing the identity of an owner, but keeping ownership records was not the determinative fact. What if the records they keep show no owner? Thus, in this case, the simple fact that the Georgia Bureau of Investigation has records is not sufficient. There still must be proof of a known owner in order to exempt non-Schedule I drugs from forfeiture and destruction.

The only evidence in this case to support the conclusion that the stockpile of cocaine that was being held for use in reverse stings had a known owner is very weak. The GBI deputy director testified only that his records would show who the owner was, but he did not know the names of the owners himself or present his records as evidence. On this basis alone, the trial court concluded there was a “known owner” sufficient to satisfy the statute.

Although on appeal the slight evidence presented might be sufficient to uphold that factual finding, because the drugs at issue in this case were admittedly illegally manufactured and possessed, there can be no owner of the controlled substances, and therefore, they should have been destroyed.

OCGA § 16-13-49 (a) (7) provides that a person is an owner if they have “an interest in [the] property.” OCGA § 16-13-49 (d) (1) provides that all controlled substances “that have been manufactured, distributed, dispensed, possessed, or acquired in violation of” the Georgia Controlled Substances Act “are declared to be contraband and no person shall have a property right in them.” And the GBI deputy director testified that the contraband acquired in both the 1982 and 1985 cases is “for lack of a better term, boat cocaine; in other words, cocaine that’s been manufactured and prepared down in Colombia and smuggled into the U. S.” Therefore, because the two stashes of cocaine in the GBI laboratory are illegal “boat cocaine,” no person has a property right in them; they can have no owner.

It is true that in Dean v. Gober, the Supreme Court recognized that non-Schedule I controlled substances can have a known owner. 272 Ga. at 24 (4). Indeed, OCGA § 16-13-35 (c) (4) authorizes certain persons to, among other things, manufacture controlled substances provided they are properly registered. And deputy director Terry Mills admitted that it is possible to purchase pharmaceutical-grade cocaine. Thus, properly registered persons would be examples of known owners of a controlled substance. But, construed together, OCGA § 16-13-49 (d) and (e) mean that there can be a known owner only if the substance has not been manufactured, distributed, dispensed, possessed, or acquired in violation of the Georgia Controlled Substances Act. In this case, the substance was illegal cocaine, and therefore, there can be no known owner.

Also, OCGA § 16-13-35 (c) (4) allows officers and employees of the state while acting in the course of their official duties to possess controlled substances. But, read together with subsections (d), (u) (1), and (y) of OCGA § 16-13-49, this statute means that the officers must destroy all controlled substances that have been manufactured, distributed, dispensed, possessed, or acquired in violation of the Georgia Controlled Substances Act that are no longer needed for evidentiary purposes in the matter in which they were acquired, although they may possess any drugs that do not fall into these categories.

Dean v. Gober did not address this specific point. It held only that the police may use confiscated drugs where there is a known owner. But it did not consider or construe OCGA § 16-13-49 (d) and its clear pronouncement that no person can own illegally manufactured drugs. Nor did it consider who can be an owner of Schedule II controlled substances. Although the majority attacks this writer’s construction of OCGA § 16-13-49 (d) and (e), it does not offer any explanation of the meaning of those Code subsections. The majority’s conclusions are not based on reading the statute as a whole.

Decided March 30, 2001

Reconsideration denied April 12, 2001

William G. Quinn III, for appellant (case no. A00A2037). Stephen T. Maples, Bernard Knight, Karlyn Shall, for appellant (case no. A00A2038).

J. Tom Morgan, District Attorney, Kristin M. Childers, Gregory K. Schwarz, Assistant District Attorneys, for appellee.

In short, because the cocaine stored by the GBI is illegally manufactured cocaine, it cannot have a known owner. Under Dean v. Gober, because the owner of the cocaine stockpile was unknown, those drugs had been summarily forfeited pursuant to OCGA § 16-13-49 (y) and “their destruction was mandated by OCGA § 16-13-49 (u) (1).” Dean v. Gober, 272 Ga. at 22 (1). It was a violation of the amended forfeiture statute for the GBI to keep it because it was no longer needed for evidentiary purposes in connection with the 1982 and 1985 incidents. Accordingly, the cocaine should have been destroyed long before some of it was used in a reverse sting against Giraldo and Brutus.

       “In reverse sting operations, undercover police officers pose as drug dealers in an area 'known for drug activity and sell cocaine to purchasers. Following the purchase or attempted purchase, the buyer is arrested for possession of cocaine.” Givens v. State, 211 Ga. App. 290, 291 (2) (439 SE2d 22) (1993), rev’d on other grounds, 264 Ga. 522 (448 SE2d 687) (1994).

       OCGA § 16-13-49 (y) provides: “Controlled substances . . . whose owners are unknown are summarily forfeited to the state.”

       OCGA § 16-13-49 (u) (1) provides:
      Whenever property is forfeited under this article, any property which is required by law to be destroyed or which is harmful to the public shall, when no longer needed for evidentiary purposes, be destroyed or forwarded to the Division of Forensic Sciences of the Georgia Bureau of Investigation or any other agency of state or local government for destruction or for any medical or scientific use not prohibited under the laws of the United States or this state.

       272 Ga. 20 (524 SE2d 722) (2000).

       Cocaine is a Schedule II controlled substance. OCGA § 16-13-26 (1) (D).

       See, e.g., United States v. Russell, 411 U. S. 423 (93 SC 1637, 36 LE2d 366) (1973); United States v. Twigg, 588 F2d 373 (3rd Cir. 1978); Greene v. United States, 454 F2d 783 (9th Cir. 1971); State v. Williams, 623 S2d 462 (Fla. 1993).

       See Ga. L. 1974, p. 221 et seq.; Ga. L. 1991, p. 886 et seq. and § 5, p. 913.

       See Code Ann. § 79A-828 (1984).

       Ga. L. 1991, § 4b, p. 913.

       Supra, 272 Ga. at 23-24 (4).

       See OCGA § 16-13-26 (1) (D).

       See Tate v. State, 264 Ga. 53, 5,4 (1) (440 SE2d 646) (1994).

       Supra, 272 Ga. at 23-24 (4).

       Id.

       Id. at 24-25 (4).

       249 Ga. App. 168 (547 SE2d 656) (2001).

       OCGA § 16-13-49 (e) essentially provides that where the confiscated property belongs to a legitimate and innocent owner, that property is not subject to forfeiture.